American Standard Cargo Container Co.

National Labor Relations Board - Board Decisions

Apr 2, 1965

151 N.L.R.B. 1399 (N.L.R.B. 1965)

AMERICAN STANDARD CARGO CONTAINER COMPANY 1399
WE WILL NOT make notations concerning union activities by our employees
designed to give the impression that we are keeping such activities under
surveillance.
WE WILL NOT promulgate or enforce antisolicitation or no-posting rules which
prohibit our employees from discussing union matters during nonworking time
or posting union notices in the plant or on the plant premises.
WE WILL NOT insert or maintain, in our employees' profit-sharing plan or
other pension plan for our employees, any provision which makes an employee
ineligible to participate therein because he becomes or remains a member of a
collective-bargaining unit or any labor organization.
WE WILL NOT force or attempt to force any of our employees to wear "NO"
stickers or any device or emblem indicating opposition to any labor organization.
WE WILL NOT threaten our employees with violence for activities on behalf
of the said labor organization or any other labor organization and we will not
threaten violence against officials or members of any labor organization.
WE WILL NOT threaten our employees with loss of employment or other
reprisals by reason of their activities on behalf of the aforesaid or any other
labor organization or for choosing the aforesaid or any other labor organization
as their collective-bargaining representative.
WE WILL neither dominate nor interfere with the administration of the safety
committee nor will we deal with it insofar as it purports to act as the representa-
tive of any of our employees with respect to wages, hours, or terms or conditions
of employment. We hereby disestablish the Safety Committee to the extent
that we have authorized it to deal with us as a representative of our employees
with respect to wages, hours, and terms and conditions of employment and to
the extent that it has dealt with us as to such matters.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their rights: (1) to self-organization; (2) to form
labor organizations; (3) to join or assist International Association of Machinists,
AFL-CIO, or any other labor organization; (4) to bargain collectively through
representatives of their own choosing or to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection or to
refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization except to
the extent that such right may be affected by an agreement authorized by Section
8(a)(3) as aforesaid.
RALPH WELLS & CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U. S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois, Telephone No. 828-7572, if they have any question concerning this notice or
compliance with its provisions.
American Standard Cargo Container Company and Millmen's
Union No. 550 , United Brotherhood of Carpenters & Joiners
of America , AFL-CIO and Sheet Metal Workers International
Association , Local Union No. 355, AFL-CIO, Party to the Con-
tract. Case No. 20-CA-2825. April 2, 1965
DECISION AND ORDER
On November 2, 1964, Trial Examiner Henry S. Sahm issued his
Decision in the above-entitled proceeding, finding that Respondent
151 NLRB No. 135.
1400 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 attached Trial Examiner's Deci-
sion. Thereafter, Respondent and Sheet Metal Workers Interna-
tional Association, Local Union No. 355, AFL-CIO, herein called
the Sheet Metal Workers, each filed exceptions to the Decision and
a supporting brief. The General Counsel filed a brief in support of
the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications
noted herein.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, American Standard Cargo Container Company, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Contributing financial or other support to Sheet Metal
Workers International Association, Local Union No. 355, AFL-CIO,
or to any other labor organization of its employees.
(b) Recognizing Sheet Metal Workers or any successor thereto
as the representative of any of its employees for the purpose of deal-
ing with it concerning wages, rates of pay, hours of employment, or
other terms or conditions of employment, unless and until such labor
organization shall have been certified by the Board as the exclusive
representative of such employees.
(c) Giving effect to the collective-bargaining agreement with Sheet
Metal Workers dated August 1, 1963, or to any modification, exten-
sion, renewal, or supplement thereto; provided, however, that nothing
1 We do not agree with or place any reliance upon the Trial Examiner's conclusion that
the Respondent granted recognition to Sheet Metal Workers before it began to organize
the employees , since the finding on which that conclusion is based is contrary to the record
Thus, as the Trial Examiner himself found , 30 union authorization cards were obtained
by the Sheet Metal Workers immediately prsor to the time it sought and obtained rec-
ognition from Respondent 's vice president, DeWayne Titus.
Neither do we agree with or rely upon the Trial Examiner ' s finding that the Millmen's
Union received disparate treatment from the Respondent while attempting to gain access
to the plant and solicit memberships, since the finding is likewise contrary to the record.
AMERICAN STANDARD CARGO CONTAINER COMPANY 1401
in this Decision and Order shall require the Respondent to vary or
abandon any wage, hour, seniority, or other substantive feature of
its relations with its employees, which it has established in the per-
formance of such agreement, or prejudice the assertion by employees
of any rights they may have thereunder.
(d) Giving effect to the checkoff authorization cards executed by
its employees in favor of Sheet Metal Workers.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Millmen's Union No. 550,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Sheet Metal
Workers International Association, Local Union No. 355, AFL-CIO,
or any successor thereto as the collective-bargaining representative
of any of its employees for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other terms or conditions of employment, unless and until the
Board shall certify Sheet Metal Workers as such representative.
(b) Reimburse each of its present and former employees at its
Hayward, California, plant for all initiation fees, dues, and other
moneys they have been required to pay Sheet Metal Workers as a
condition of employment by reason of Respondent's enforcement of
its agreement, dated August 1, 1963, whether or not pursuant to
checkoff authorization cards executed by its employees in favor of
that union, together with interest thereon at the rate of 6 percent
per annum to be computed in the manner set forth in Seafarers Inter-
national Union of North America, Great Lakes District, AFL-CIO,
138 NLRB 1142.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of reimburse-
ment due under the terms of this Order.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant at Hayward, California, copies of the at-
tached notice marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for Region 20, shall, after being
duly signed by Respondent, be posted by it immediately upon receipt
thereof, in conspicuous places, including all places where notices
to employees are customarily posted, and be maintained by it for 60
consecutive days thereafter. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT contribute financial or other support to Sheet
Metal Workers International Association, Local Union No. 355,
AFL-CIO, or any other labor organization.
WE WILL NOT require as a condition of employment that em-
ployees become or remain members of Sheet Metal Workers.
WE WILL withdraw and withhold all recognition from Sheet
Metal Workers as the representative of any of our employees,
unless and until it is certified by the National Labor Relations
Board as such representative.
WE WILL NOT give effect to the collective-bargaining agreement
signed with Sheet Metal Workers, dated August 1, 1963, or to
any modification, extension, renewal, or supplement thereto, or
to any checkoff authorization in favor of Sheet Metal Workers.
However, nothing in the Decision and Order of the National
Labor Relations Board requires this company to vary or abandon
any wage, hour, seniority, or other employee benefit established
in the performance of that agreement, or prejudices the asser-
tion by employees of any rights they may have thereunder.
AVE WILL reimburse each of our present and former employees
for all initiation fees, dues, and other moneys unlawfully exacted
from them pursuant to the aforementioned agreement with Sheet
Metal Workers.
AMERICAN STANDARD CARGO CONTAINER COMPANY 1403
ZVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Mill-
men's Union No. 550, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from
becoming or remaining members of the above-named or any other
labor organization.
AMERICAN STANDARD CARGO CONTAINER COMPANY,
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.
Employees may communicate directly with the Board's Regional
Office, Room 703, 830 Market Street, San Francisco, California, if
they have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner Henry S. Salim at a hearing in
San Francisco , California, on March 4 and 5, 1964 , on the complaint of General
Counsel and the answer of American Standard Cargo Container Company, herein
called both the Respondent and the Company . This case arose as the outgrowth of
an organizational campaign at the Respondent Company's plant by several labor
organizations . The issues litigated were whether the Respondent Company violated
Section 8 (a) (2) of the Act by rendering unlawful assistance to the Sheet Metal
Workers Union and unlawfully having its employees become members of said Union
and thereafter checking off initiation fees and dues which were remitted to the Sheet
Metal Workers Union in alleged violation of Section 8(a)(3). Respondent 's answer
denies generally the commission of any unfair labor practices.
Upon the entire record in the case and from observation of the demeanor of the
witnesses , and after due consideration of the briefs filed by the General Counsel and
the Respondent , there are hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED
Respondent , a California corporation with its main office and principal place of
business at Hayward , California , is, and at all times material herein has been, engaged
in the manufacture of cargo containers and prefabricated school buildings . During the
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
calendar year 1962, Respondent shipped goods valued in excess of $50,000 from its
Hayward, California, plant directly to places outside California and purchased and
received goods and materials valued in excess of $50,000 directly from suppliers
-located outside California. Accordingly, it is found that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the National Labor
Relation Act, as amended, herein called the Act.
The Millmen's Union and the Sheet Metal Workers Union are labor organizations
within the meaning of Section 2(5) of the Act, admitting to membership employees
of the Respondent.
II. THE ALLEGED UNFAIR LABOR PRACTICES
On March 28, 1963, the Millmen's Union, the Charging Party, wrote a letter to
the Respondent Company in which it was stated that the Union was interested in
representing its employees.1 The Millmen's Union requested in its letter that it be
recognized as the employees' bargaining representative and that a meeting be sched-
uled in order to begin negotiations for a contract.2 Upon receiving no reply to its
letter, the Millmen's Union's assistant business agent, R. C. Bigby, went to Respond-
ent's plant during the first week of April 1963, and told DeWayne Titus, executive
vice president of the Company, that the Millmen's Union was interested in represent-
ing its employees. Titus told Bigby the employees did not need a union and that he
was opposed to one, citing the fact that he had recently defeated the Operating Engi-
neers in their efforts to organize the plant .3
On July 19, 1963, DeWayne Titus and his brother James, the plant superintendent,
ordered the employees to assemble in the welding shop during working hours .4
At that time Edgar A. Ingles, president and business representative of Sheet Metal
Workers Local 355, was introduced to the employees by DeWayne Titus who told
them that Ingles' union was interested in representing them. DeWayne Titus, who
had given Ingles permission to make the speech, remained during the entire time that
Ingles spoke to the employees.
After the meeting, Lewis C. Curtis, a welder, who is presently employed by the
Company, went up to DeWayne Titus and "asked him if he was approving us organiz-
ing a union, forming a union, and he said it didn't make too much difference to
'him. . . . I asked him if it was . . . all right for us to have [a] union and he said it
didn't make a whole lot of difference to him about the union, but that . . . our pro-
duction had got to the point where we needed one or, well, I won't say needed one,
for the record, but as far as containers went, we could build containers until hell froze
over . without a union." Curtis, later in his testimony, on cross-examination, ad-
mitted he had told a Board investigator that he asked DeWayne Titus "if he really
wanted a union and he said that he did."
That same day, after the meeting concluded, and during working hours, approxi-
mately 30 employees were called individually into the office of Aaron Titus, foreman
of the welding shop,5 and each one was asked separately by Ingles, the Sheet Metal
Workers' president, if they wished to sign authorization cards.6 All the employees
who were requested by Ingles to sign union authorization cards did so.
'About the same time, the Milimen's Union was contacting Respondent's employees at
their homes with a view to interesting them in becoming members
2 The Respondent's contention that the letter was never received is not credited Corro-
borative of this credibility finding is the California Conciliation Service and the NLRB
Regional Office, both receiving copies of this letter. Thiele Tanning Company, 128 NLRB
19, footnote 3.
3 DeWayne Titus' denial that he spoke with or had such a conversation with Bigby
of the Millmen's Union is not credited. His demeanor while testifying did not favorably
impress the Trial Examiner as he was evasive and equivocal. Moreover, Titus' denial
did not comport with other undisputed facts. For example, Bigby testified that he went
to the plant and spoke with Titus who told him he had just defeated the Operating
,Engineers Union in their efforts to organize the plant. Lending credence to this incident
and that it did occur disproves Titus' denial because by his own testimony he stated on
cross-examination that he did not permit the Operating Engineers' organizer access to
the plant. This testimony should be evaluated in the context of contrasting it with the
fact that the Sheet Metal Workers Union was given the freedom of the plant and un-
limited access to contact the employees at the plant during working hours.
* DeWayne Titus made the arrangements for the meeting.
5 It was stipulated that Aaron Titus is a supervisor within the meaning of Section 2(11)
of the Act
e Curtis, an employee, testified that James Titus, the plant superintendent, came to
11where he was working "and told me that I could go down and talk to Ingles . . . .
AMERICAN STANDARD CARGO CONTAINER COMPANY 1405
After obtaining the signatures of approximately 30 employees within a compara-
tively short period of time, Ingles proceeded to DeWayne Titus' office the same day,
July 19, and requested recognition as bargaining representative for the Company's
production employees. Without asking to examine the authorization cards, Titus
granted the Sheet Metal Workers Union immediate recognition and he suggested they
commence negotiations. Ingles testified that he met with Titus on July 23, at which
time they agreed on the terms of a contract and to submit it to the employees for their
approval .7
Four days after the Company recognized the Sheet Metal Union, Ingles wrote a
letter on July 23 to Titus again requesting both recognition and a meeting to begin
negotiations. Why this was done the record does not reveal. Nor is it understand-
able why DeWayne Titus considered it necessary to write a letter to Ingles on July 30
recognizing the Sheet Metal Workers Union as the bargaining representative for the
Respondent Company's employees when he had recognized the Union 11 days pre-
viously and negotiations had not only begun but were concluded by July 23.8 It
would seem it is not too unreasonable to conclude that these pantomimic actions were
part of an overall contrived scheme to lend validity to this entire course of conduct
in order to give the appearance of "hard bargaining" and to furnish a facade of
legitimacy to their alleged negotiations.
On July 30, 1963, Ingles, who had been given a pass granting him access to the
plant at any time, walked through the shop during working hours and handed each
employee what he referred to as a draft of a proposed contract and told them to look
it over as a vote would be taken in a day or two to ascertain if they approved its pro-
visions. On August 1, a vote was taken during working hours in the plant, under
Ingles' supervision, who assembled the employees, and they ratified the provisions of
the contract by a vote of 23 to 3.9 At the same time and place, they also elected two
union shop stewards. As soon as the employees' votes were tabulated, Ingles went
to DeWayne Titus' office and they signed the contract.10
Article III of the contract (General Counsel's Exhibit No. 11), "Union security,"
requires as a condition of employment that all of Respondent' s employees shall
become members of the Sheet Metal Workers Union after 30 days of employment.
Discussion
As the Supreme Court has emphasized, the Act guarantees to employees "complete
and unfettered freedom of choice" with respect "to the selection of bargaining repre-
sentatives." 11 Section 7 of the Act expressly assures to employees the right to select
"representatives of their own choosing." Section 8(a)(1) proscribes employer inter-
ference with that right. Section 8(a) (2) specifically forbids employers "to dominate
or interfere with the formation or administration of any labor organization or con-
tribute financial or other support to it." Under these provisions, "it has repeatedly
been held that an employer may not intrude in matters concerning the self-organiza-
tion of his employees.... Especially is this so where the adherence of the employees
is being sought by rival labor organizations" (citing cases).12 "At a time when the
rival organizations [are] still in a formative state, ... the employees [are] sensitive to
weight thrown by their employer in favor of one organization as against another, even
though the suggestion of preference be subtle or slight." 13
Section 8(a)(2) is designed to prevent interference by employers with organiza-
tions of their workers that serve or might serve as collective-bargaining agencies and
it was enacted to assure employees that they would be free to choose any type of
7 DeWayne Titus placed the date of this meeting as July 21 or 22.
8 See General Counsel's Exhibits Nos. 7 and 12.
0It appears Ingles might not have requested permission from Respondent prior to
the time the election was conducted.
11 The Sheet Metal Workers was the first union to represent Respondent 's employees.
11 N L.R.B. v. Link-Belt Company, 311 U.S. 584, 588; International Association of
Machini8ts, Tool and Die Makers Lodge No. 35 v. N.L.R B (Serrick Corp.), 311 U.S.
72, 78, 79-80, N.L.RB. v. Southern Bell Telephone and Telegraph Company, 319 U.S.
50, 60.
12 Harrison Sheet Steel Company v. N.LR.B., 194 F. 2d 407, 410 (CA. 7).
13Elestic Stop Nut Corporation v. NL.R.B., 142 F. 2d 371, 375 (CA 8 ), cert. denied
323 U.S 722. See also N.LR.B. v. Link-Belt Company, 311 U.S. 584, 599-600.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization they desired without interference from the employer.14 The formation
and administration of labor organizations are the concern of the employees and not
of the employer. The conduct of an employer which has the effect of defeating the
freedom of employees to carry out this function constitutes an unfair labor prac-
tice.15 The Supreme Court's has said:
It would indeed be a rare case where the finders of fact could probe the precise
factors of motivation which underlay each employee's choice. Normally, the
conclusion that their choice was restrained by the employer's interference must
of necessity be based on the existence of conditions or circumstances which the
employer created or for which he was fairly responsible and as a result of which
it may reasonably be inferred that the employees did not have that complete and
unfettered freedom of choice which the Act contemplates.
The employer must not intrude in matters concerning the self-organization of his
employees and the employees must be free from all restraint and coercion. The Act
imposes upon an employer total and complete impartiality and the utmost of honest
neutrality, since even slight suggestions as to the employer's choice between unions
may constitute powerful support, and have telling effect among men who know the
consequences of incurring the employer's strong displeasure in such matters 17
Especially is this so where the adherence of the employees is being sought by a rival
labor organization. Thus, during a contest between rival unions the employer may
not accord such treatment to one of the rivals as will give it an improper advantage
or disadvantage. A duty is placed upon the employer to maintain a position of strict
neutrality while rival unions seek support of the employees.
In N.L.R.B. v. The Summers Fertilizer Company, Inc., et al., the United States
Court of Appeals for the First Circuit stated: 18
It cannot be denied that employees have a right to choose either an independ-
ent unaffiliated union composed solely of fellow employees or a union affiliated
with a national or international organization, but where such choice occurs
after the initiation of organizational drives by other unions and after the demand
for recognition by one of these unions, any form of benefit contributed by the
employer to a particular union must be closely examined. See N.L.R.B. v.
Brown Paper-Co., 108 F. 2d 867 (5 Cir., 1940), certiorari denied 310 U S. 651.
The test to be applied is whether such benefit is allowable cooperation with the
freely chosen representative of the employees or is it in fact an inducement to
these employees to choose an organization, which without this support, would
very likely not have been so chosen.
Contentions
The Respondent's position is that "the record is completely devoid of any evidence
that the employees were coerced into selecting Sheet Metal Workers Local 355 as
their representative" and that "the designation [of this union] was their free and
voluntary act." The General Counsel, on the other hand, contends that the Respond-
ent's assistance and influence so pervaded the employees' selection of the Sheet Metal
Workers Union that the employees' choice was unlawfully restricted thereby resulting
in the Union not representing an uncoerced majority of Respondent's employees.
14 See S. 573, 74th Cong., 1st Sess., pp. 9-11; H.R. 1147, 74th Cong, 1st Sess. pp.
17-19; S 105, 80th Cong., 1st Sess., p 12; 93 Cong. Rec 6443, 4169, A-2253, reprinted
in Legislative History of the Labor Management Relations Act, 1947 (Government Print-
ing Office, 1948) pp 418, 1539, 1103, 1525; H. Rept. 245, 80th Cong., 1st Sess, pp 28-29,
38, 42; S. 105, 80th Cong., 1st Sess. pp. 3, 12-13, 25, 26 ; H. Conf. Rept 510, 80th
Cong., 1st Sess, pp. 40-41, 54-55, reprinted in Legislative History of the Labor Manage
ment Relations Act, 1947, supra, at 319-320, 329, 333, 409, 418-419, 431, 432, 544-545,
558 ; Report of the Joint Committee on Labor Management Relations, S. 986, part 3, 80th
Cong., 2d Sess , pp. 67-68, 99-100.
15 N.L.R.B. v. Pennsylvania Greyhound Lines, Inc, 303 U S. 261 ; N.L.R.B. v. Newport
News Shipbuilding & Drydock Co., 308 U S. 241; Elastic Stop Nut Corporation v.
N.L.R B.,
142 F. 2d 371, 380 (C A. 8)
18 N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 588.
14 International Association of Machinists v. N.L.R.B. (Serrick Corp.), 311 U.S. 72,
78; N.L.R.B. v. Faultless Caster Corp., 135 F. 2d 559, 561 (C A 7).
18 251 F. 2d 514, 518.
AMERICAN STANDARD CARGO CONTAINER COMPANY 1407
Analysis of the Testimony
The Respondent disclaims responsibility for the alleged unfair labor practices, but
a reasoned evaluation of the evidence as a whole belies the disclaimer. Against the
fact pattern revealed by certain undisputed and demonstrable facts in this case, which
have been referred to heretofore, and additional indicia detailed below, Respondent's
contentions in its efforts to exonerate itself from a finding of unfair labor practices
are singularly unimpressive. The failure of Respondent's defense to withstand scru-
tiny, as shown below, buttresses this conclusion. A study of the record shows that
DeWayne Titus, who was Respondent's only witness who testified with respect to
the substantive aspects of this case,19 frequently contradicted himself and Ingles, the
Sheet Metal Union's president, as to what occurred in the "negotiations" that eventu-
ated in the execution of a collective-bargaining agreement.20 The testimony of both
Titus and Ingles is not only vague, evasive, and inconsistent, but in certain aspects
inherently improbable as well as incredible.21 Titus' self-contradictory and uncon-
vincing testimony, detailed below, creates a suspicion that he, in concert with Ingles,
was concealing an unlawful motive, which in this case was an attempt to forestall and
abort the organizational activities of the Millmen's Union by lending their efforts to
Respondent's employees' coerced selection of the Sheet Metal Workers Union and
it is so found.
Strengthening and fortifying this finding is the following testimony. Ingles incon-
sistently testified that he gave Titus a proposed contract "sometime in June" as a
basis for negotiations and at another point in his testimony he states it was either
February or March. Titus, however, places this proposed contract being given to him
by Ingles as somewhere around July 19. It would seem that the date of such an
important event would be recalled more precisely than this. Moreover, both Ingles
and Titus were vague as to which of the approximately 30 employees received pay
increases under the provisions of the contract executed on August 1. Titus testified
that "almost everyone in the plant got a payroll increase as a result of the contract"
but he was unable to specify who of the relatively small number of men then
employed did receive such an increase. At other points in his testimony, he incon-
sistently testified all employees received increases, and at another point he stated
"some of them did not." When Titus was asked in what way his employees' working
conditions were improved as a result of the August 1 contract, he mentioned such
paltry provisions as an employee now being entitled to a 5-day paid vacation after
being employed 90 days whereas it was formerly a year; holidays were increased from
seven to nine; and a "formalized " grievance procedure was instituted.
When Titus was asked on cross-examination to specifically state what was discussed
at the various negotiation sessions, his testimony was vague, evasive, unspecific, unre-
sponsive, and not only couched in generalities but he had a tendency to fence with
counsel. Revealing, also, is Titus' answer that he did not know in what respects the
,executed contract was different from the provisions of the proposed contract origi-
nally submitted to him by the Union. Significant also is the fact that the Company
made no proposals or counterproposals to the Union in writing.
All the adjectives used above to describe Titus' testimony can be applied equally
to Ingles. As examples of his testifying in generalities were the following his reluc-
tance to be specific as to what transpired at the various negotiating sessions: for
instance, he testified, there was "quite a little bit" of haggling over wage rates; he
didn't recall how long the meetings lasted; and when he was asked what specific
changes in the employees' working conditions were effectuated by the August 1 con-
tract, he answered in an apocryphal manner, "Primarily working conditions were
improved, because before the signing of the contract the employees had no guarantee
or assurance of seniority, vacations, holidays, everything was at the discretion of
management and the goodwill of Mr. Titus, which possibly the control of the Com-
pany could have passed from him to some other person and they wouldn't have had
>s Of the other two witnesses who testified for Respondent, Talley confined himself to
inconsequential and cumulative incidents as did Silvia whose testimony was brief and
concerned an unimportant incident
2D Cf. N.L.R.B. v. C. W. Radcliffe et al , d/b/a Homedale Tractor t Equipment Com-
pany, 211 F. 2d 309, 314 (C.A. 9), cert denied 348 U S. 833.
IL Titus incredibly testified that not only did he not know Ingles conducted a i ote on
company time and premises to determine whether the employees approved of the proposed
contract but he did not even know beforehand that such a vote was to be taken. Ingles
also was unable to recall how long some of the negotiation meetings lasted.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of those conditions they were guaranteed under a bonafide contract that was
enforceable, and all of those conditions that they were enjoying at somebody else's
discretion were made legal and binding in writing so I call all of the conditions
improved."
Although Titus acknowledged that the Company provided Ingles with an office
in the plant to solicit employees to sign union authorization cards, Ingles evaded
answering the question when he was asked if this was so, stating he did not recall
who gave him such permission. Noteworthy, also, is Ingles admission that he entered
into contract negotiations with Titus before he had even contacted any of Respond-
ent's employees. This is sometimes referred to in the parlance of labor relations as
"organizing from the top." 22
Common to both Titus' and Ingles' testimony were the generalities in which they
couched their testimony as to what occurred at the alleged bargaining meetings;
little, if any of it, was specific and most of it unconvincing. Such broad, unspecific,
and subjective characterizations were, therefore, difficult to refute and to impugn
through cross-examination and create a suspicion that they were offered to conceal
an unlawful motive, which it is found was an attempt to abort and defeat the Millmen
Union's organizational activities by rendering proscribed assistance and support to
the Sheet Metal Workers Union and thus lending their efforts to Respondent's estab-
lishment of the Sheet Metal Union as the bargaining representative of the employees.
Then too, both Ingles and Titus made a poor impression on the witness stand;
vacillated on cross-examination, were vague, uncertain, and in some instances did
not even recall the specific provisions of the executed contract as to the wage scales
the employees were to receive. It seems incredible that such an important aspect
of the negotiations as the wage provisions would not have been remembered by them.
Then, too, they both displayed an appalling ignorance of what occurred from the
time negotiations were allegedly entered into until the contract's execution on August 1,
1963, although they were the exclusively dominant personalities in all of the bar-
gaining sessions. Moreover, many of Titus' answers were voiced in response to lead-
ing and suggestive questions propounded by his counsel which also militates against
the weight to be given his testimony. Furthermore, as the vice in counsel asking his
witness leading questions is that they suggest the desired answers, which the witness
will often merely adopt, it may seem futile to object once such a question has been
asked and the desired answer suggested. Little probative value has been given to
the testimony thus elicited, particularly in view of the cogent fact that counsel per-
sisted in asking leading and suggestive questions although requested by the Trial
Examiner to desist from continuing to do so.23
Conclusions
The "avowed purpose" of the Act is "to promote and protect the rights of indi-
vidual employees to join or not to join unions and to be free from coercion or inter-
ference either way." 24 And to that end Section 8(a) (2) of the Act provides that
an employer shall not interfere with the formation or administration of any labor
organization or contribute financial or other support to it. The instant case presents
a situation where that purpose was frustrated by the Respondent giving complete
cooperation to the Union's proselytizing efforts thereby rendering illegal support and
assistance to the Sheet Metal Workers Union in organizing its employees in an effort
to abort the organizational drive of the rival Millmen's Union. Thus the Respondent
granted the Sheet Metal Union unlimited access to its plant to solicit its employees
as contrasted with its denial of that same right to the Millmen's Union. Such dis-
parate treatment substantiates the conclusion that it was tainted with discriminatory
and proscribed motives. Thus Respondent made arrangements for an employees'
meeting at the request of the Sheet Metal Workers Union at which attendance by its
employees was not only compulsory but was participated in by the Company's vice
president, Titus,25 who also supplied an office to Ingles, the Sheet Metal Union's repre-
za See Majestic Weaving Co., Inc., of New York,
147 NLRB 859, footnote 3, where
the Board overruled Julius Resnick, Inc,
86 NLRB 38, to the extent that it holds "an
employer and a union may agree to the terms of a contract before the union had organized
the employees concerned, so long as the union has majority representation when the
contract is executed."
x+ See Liberty Coach Company, Inc., 128 NLRB 160.
u N.L.R.B. v. Augusta Chemical Co., 1'87 F. 2d 63, 64 (C A. 5).
25 Jack W. Sellers, at al., d/b/a Coca-Cola Bottling Company of Sacramento, 146 NLRB
1045.
AMERICAN STANDARD CARGO CONTAINER COMPANY 1409
sentative, and cooperated with him in soliciting its employees-all on company time
and premises. Then, too, Respondent's conduct shows a most determined resolve
in impressing upon its employees that it was favorably inclined to their selecting the
Sheet Metal Union as their bargaining agent,26 by effectively planting in the minds
of the employees, and giving impetus to, the idea of the Sheet Metal Union being
preferred by the Respondent.27
The extent to which Respondent was willing to go to assist and support the Sheet
Metal Union in its efforts to frustrate the Millmen's organizational efforts is demon-
strated by the remarkable success of the Sheet Metal Union in obtaining approxi-
mately 30 employees' signatures within a period of a few hours and the alacrity with
which Titus acknowledged and granted Ingles' request for exclusive recognition the
same day without even examining the Union's authorization cards and then precipi-
tately agreed to the terms of a contract which secured no substantive benefits for the
employees.28
It is not too unreasonable to assume, therefore, that the individual indicia in the
record in this case, considered not simply in isolation, but cumulatively and com-
positely as well, indicate that Titus, Respondent's vice president, may have implanted
in the mind of Ingles, the Sheet Metal Union's business representative, the idea of
not only organizing the employees in order to defeat the Millmen's organizational
efforts but also was part of Respondent's effort to achieve the advantages which would
accrue to it if it dealt with the Sheet Metal Workers Union for purposes of collective
bargaining 29
Corroborative of this belief that the quid pro quo- for the Respondent recognizing
the Sheet Metal Union in return for the Union giving the Company a beneficial and
profitable contract is the astonishing and appalling fact that the collective-bargaining
agreement executed as a result of the "negotiations," adverted to above, provided for
a decrease in the employees' wage rates. Although it seems inconceivable it appears
that the wage rates which employees were receiving prior to the signing of the col-
lective-bargaining agreement between Respondent and Sheet Metal Workers Union
were higher than the rates agreed upon in the August 1 contract, with one excep-
tion.30 It is found, therefore, that Respondent, in concert with the Sheet Metal
Workers Union, conspired to frustrate the rival Millmen's Union attempt to organize
the Company's employees and thus interfered with its employees' freedom of choice
in violation of Section 8 (a)( I) and contributed illegal support and assistance to it
in violation of Section 8(a) (2) of the Act.
The Alleged Violation of Section 8 (a) (3)
The collective-bargaining agreement which was executed by the Respondent Com-
pany and the Sheet Metal Workers Union provides as a condition of employment
that all of Respondent's employees shall become members of and pay dues to that
Union after 30 days of employment. By this provision, alleges the complaint,
"Respondent violated Section 8(a) (3) and 8(a)(1) of the Act."
An examination of the applicable cases appears to reveal that where authorization
cards are obtained by a union from a purported majority of employees with the sup-
port and assistance of the employer, such employees' authorizations are deemed
coercively obtained, thereby rendering not only the employer's recognition of the
union as illegal but also the execution of a contract containing a union-security pro-
26 Ibid
27 See Wilber F. Disney, d/b/a Disney Roofing & Material Co., et al., 145 NLRB 88.
21 This conduct is indeed unusual when it is considered that Respondent's counsel stated
it has been company policy to ignore written recognition requests from other unions in
the past. See Ablon Poultry it Egg Company, 134 NLRB 827, footnote 1. Cf N L.R.B.
v. George IT. Clark, et al., d/b/a Clark Phonograph Record Company, 176 F. 2d 341, 342
(C.A. 3), posthaste recognition of union ; and N.L.R B. v. Shedd-Brown Mfg. Co, 213 F.
2d 163, 168 (C.A. 7), time of organization and ease in obtaining signatures.
28 Cf. N.L.R B. v. L. Ron ley & Sons Furniture Manufacturing Co., 206 F. 2d 730, 730-
735 (C.A 9), cert denied 346 U.S 937
SU That exception is Clem Ver Hagen, a "leadman," whose hourly wage rate (p 2 of
Respondent's Exhibit No. 1) was increased 1 cent. He also was the union shop steward
and the one selected to tally the ballots when the employees voted to ratify the contract.
See Respondent's Exhibit No 1, attached as Appendix B at the end of this Decision.
783-133-66-vol. 151- 9 0
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision. Under such circumstances, the Board has held, when the employer grants
exclusive recognition to an assisted union, and then requires the employees as a
condition of their employment to join and pay dues to a union which they were
coerced into joining, such conduct violates not only Section 8(a)(1) and (2) but
also Section 8(a)(3) 31
The proviso to Section 8(a) (3) of the Act dealing with the conditions under which
a union-security clause is lawful provides in relevant part as follows
Provided, that nothing in this Act ... shall preclude an employer from making
an agreement with a labor organization (not established, maintained, or assisted
by any action defined in section 8(a) of this Act as an unfair labor piactice) to
require as a condition of employment membership therein on or after the
thirtieth day following the beginning of such employment. . . . [Emphasis
supplied.]
It would appear, therefore, that the representative status of the union is a prerequi-
site to the valid execution of a union-security provision. In the case at bar, the Sheet
Metals Workers Union, however, as a result of Respondent's unfair labor practices,
became the beneficiary of illegal assistance and could not, therefore, become the
representative of the employees because it did not represent an uncoerced majority
of the employees at the time it executed the union-security agreement. The majority
support which the Sheet Metal Workers Union had when the contract was signed was
an assisted majority.
The proviso to Section 8(a)(3) expressly provides that an employer cannot make
a union -security agreement if the labor organization is "established , maintained, or
assisted by the action defined in section 8(a) of this Act as an unfair labor practice."
Since the Sheet Metal Workers Union was illegally assisted, Respondent's union-
security clause did not meet this statutory requirement and was therefore invalid.
By executing and maintaining this union-security agreement, implemented by the
provision for checkoff of dues, the Respondent violated Section 8(a)(3) by unlaw-
fully requiring its employees to join the Sheet Metal Workers Union as the price of
employment and thereby to support an organization not of their own choosing.32
Therefore, the union-security agreement does not conform to the limitations of the
proviso to Section 8(a)(3), namely, that the agreement must have been made with
a properly qualified union which became by lawful means the representative of an
uncoerced majority of the employees. Because of the unfair labor practices com-
mitted by Respondent, the Sheet Metal Workers Union qualifies in none of these
respects because it attained representative status by unlawful means and lacked the
support of an uncoerced majority thereby violating Section 8(a) (3) of the Act.33
As stated by the Supreme Court in the Bernhard-Altmann case,34 Section 9(a) of
the Act "guarantees employees freedom of choice and majority rule." The Court also
observed that there "could be no clearer abridgement" of the Section 7 rights of
employees than impressing upon a nonconsenting majority an agent granted exclusive
bargaining status. In the Altmann case an interim agreement was the vehicle for
prematurely granting a union exclusive bargaining status. What the Respondent
did here was to grant recognition before the union even began to organize the
employees.
It is found, therefore, on the basis of all the facts in the record, that the Respond-
ent, American Standard Cargo Container Company, committed unfair labor prac-
tices in violation of Section 8(a)(2) and (3) of the Act, thereby interfering with,
restraining, and coercing the employees in the exercise of rights guaranteed by the
Act in violation of Section 8(a)(1).
31 See footnotes 32 and 33, infra.
92N.L.R.B. v. Knickerbocker Plastic Co., Inc., 218 F. 2d 917, 923-924 (C.A. 9) ;
GEM International Inc., et at, 137 NLRB 1343, 1346; Dixie Bedding Manufacturing
Company, 121 NLRB 189, 194-197; John B Shriver Company, 103 NLRB 23, 38-39.
Cf. Eastern Massachusetts Street Railway Company, 110 NLRB 1963, and Max Factor
& Company, 118 NLRB 808, 812.
sa N.L.R B. v. Gottfried Baking Co., Inc., at at, 210 F. 2d 772 (C.A. 2) ; Atlantic
Freight Lines, Incorporated, 117 NLRB 464, 470, 471 ; Dickey, etc v. N.L R.B., 217 F.
2d 652, 655 (C.A. 6), which held that "an employer cannot by dealing with a union,
constitute it the lawful representative of employees who have not chosen it to represent
them "
34 International Ladies' Garment Workers' Union, AFL-CIO v. N .L.R.B., 366 U.S. 731.
AMERICAN STANDARD CARGO CONTAINER COMPANY 1411
III. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it shall be recommended that it and its successors cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully recognized and rendered support
and assistance to Sheet Metal Workers International Association, Local Union No.
355, and unlawfully entered into a collective-bargaining contract containing union-
security provisions, it shall be recommended that the Respondent cease and desist
from such activities, and further that it shall withdraw and withhold recognition from
said Sheet Metal Workers International Association, Local Union No. 355, as the
collective-bargaining representative of its employees, unless and until it shall have
demonstrated its exclusive representative status of the Respondent's employees pursu-
ant to an election conducted by the Board.
Having also found that the collective agreement dated August 1, 1963, granting
recognition to the Sheet Metal Workers Union was, in the total facts of this case, not
only a further form of unlawful assistance, but also a violation of the proviso to
Section 8(a) (3) of the Act, it shall also be recommended that the Respondent cease
giving effect to that contract, or to any extension, renewal, modification, or supple-
ment thereof, or to any superseding contract.
Since it has been found that Respondent coerced its employees to become and
remain members of Sheet Metal Workers Union, it is also recommended that the
Respondent reimburse its employees, as well as former employees, for any Sheet
Metal Workers Union initiation fees and dues paid directly to said Union or deducted
from their wages pursuant to checkoff authorizations and paid to, or being retained
for, the Sheet Metal Workers Union, by paying to each of them a sum of money equal
to the total of such initiation fees and dues deducted from said employees wages plus
6 percent interest.35
It is well settled that the Board may order an employer who is a party to an illegal
union-security agreement to reimburse his employees for the dues collected there-
under, though the moneys went to the union.36 The theory of these cases is that the
employer, by acquiescing in practices which require his employees against their will
and as a condition of employment to support the union, has contributed to the wrong-
doing and thus is held responsible for remedying the effects of the unfair labor prac-
tice 37 That imposing a reimbursement obligation on the employer may have the
incidental effect of allowing the union to keep the money it has illegally received 38
is deemed to be outweighed by the overriding policy of making the employees whole
for the losses which they incurred.
CONCLUSIONS OF LAW
1. The business operations of Respondent constitute and affect trade, traffic, and
commerce among the several States within the meaning of Section 2(6) and (7) of
the Act.
2. Sheet Metal Workers Union and Millmen's Union are labor organizations within
the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully assisting and supporting Sheet Metal Workers Union, by recog-
nizing and entering into a contract which provides for an invalid union-security
clause and a dues-checkoff provision, and by according continuing effect to its contract
with said Sheet Metal Workers Union, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1), (2), and (3) of
the Act.
[Recommended Order omitted from publication.]
35 Seafarers International Union of North America, Great Lakes District, 138 NLRB
1142; Harold Hibbard, et al., d/b/a Hibbard Dowel Co., 113 NLRB 28, 30.
36 See, e g., Virginia Electric and Power Company v N.L.R.B., 319 U.S. 533, 543-545;
Dixie Bedding Manufacturing Company v. N.L.R.B., 268 F. 2d 901, 907 (CA. 5).
37 Cf. Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N.L.R.B.
(A. H. Bull Steamship Company), 347 U S. 17, 54-55
3s It is the Board's practice in joint and several liability cases to require the employer
and the union to split the liability. N.L.R.B. v. Puerto Rico Steamship Association, 211
F. 2d 274 (C.A. 1).
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Employee
(1)
Employed
(2)
Wage rate
on
7/25/63
(3)
Contract
rate on
8/1/63
(4)
Wage
increases
(5)
Term
(6)
Comments
1 Anderson, J ______________ 7/19/63 $2 50 1 80 8/28 $2 75 9/13/63
2. Angus, Eric_______________ 7/15/63 2 50 1 80 _
3 Balcazar, Robt____________ 4/ 5/63 2 25 2 00 8/2 2 50 8/30/63
4 Barton, Colonel___________ 7/11/63 2 50 1 80 ______________ 8/27/63 Student
5. Blass, Wayne_____________ 7/11/63 2.25 1 80 9/3 2 50 _________
6 Boyer,J W , Sr__________ 12/1/62 2 50 2 50 8/6 2 75 ----------
7. Boyer, J W , Jr___________ 7/ 1/63 2 35 1 80 8/2 2 15 12/17 $2 75
8 Calhoun, Tommy_________ 8/16/62 2 60 2 50 8/2 2 70 ----------
9 Calhoun, Tommy_________ _____________ ___________ 2 75 8/20 2 75 ----------
10 Calhoun, Tommy_________ _____________ ___________ 2 75 10/30 2 85
11. Canady, Garland_________ 7/17/63 2 50 __
12. Connor, Daniel___________ 7/16/63 2 50 1 8 ______________ 10/22/63
13. Cooper, Edward__________ 6/ 6/63 2 50 1 80 _______
14 Cooper, Robt_____________ 6/20/63 2 00 1 80 8/14 2 50 8/27/63
15 Cox, Jimmy_______________ 7/24/63 2 50 1 80 _ 1/63
16 Curtis. Lewis_____________ 4/27/62 2 85 2 75 8/7 2 95 ________
17 Davis, Thomas___________ 7/19/63 2 50 1 80 _
18 Du Bose, Ben_____________ 7/23/63 2 50 1 80 ______________ 8/27/63 Student
19. Evans, Don_______________ 6/20/63 2 00 1 80 9/18 2 25 9/24 $2 25
20. Figueroa, James___________ 1/ 7/63 2 85 2 75 _______
21. Glenney, Don_____________ 7/15/63 2 50 ___________ ______________ 8/ 1/63
22. Green, Robt______________ 7/17/63 2 75 1 80 _ 9/63
23. Hardy, Paul______________ 7/ /63 2 75 1 80 ______________ 8/13/63 Part-time
24. Knabe, Lloyd_____________ 7/19/63 (1) --_________ _____ _______ Foreman.
25 Land, Chas_______________ 4/ 8/63 2 50 2 25 _ Student
26. Land, Robt_______________ 4/11/63 2 50 2 25 ______________ 8/20/63 Student
27. Light Richard ____________ 7/15/63 2 75 1 80 ______________ 11/ 6/63
28 Kenneth 7/29/63 250 180 ______________ 8/26/63
29. Long, Patrick _____________ 7/16/63 2 50 1 80 ______________ 7/18/63
30. Lookabrll, Vernon 2/ 8/62 2 85 2 75 ______________ _______
31. Lout, Ernest ______________
out, E st
1/ 6/62 2 85 2 75 10/29 2 95 _
32. L , Atillie
___________
7/18/63 2 50 1 80 _
33 McCart, Jim____ __ 6/18/63 2 00 1 80 ______________ 8/27/63 Part-time.
34. McLaughlin, Art_________ 8/ 6/64 1 80 8/6 2 60 8/23/63
35. Mahmomi, Heine_________ 12/29/62 3 25 2 75 ______________ ________
36 Miller, Fred______________ 2/15/63 2 50 2 25 _
37 Morris, Ben_______________ 6/ 3/63 2 80 2 75 11/5 () _______
38. Musante, Mathew________ 7/15/63 2 00 1 80 8/1 2 00 8/12/63
39 Natkong, Julius___________ 7/16/63 2 50 1 80 8/28 2 75 ----------
40 Nerlore, Ronald___________ 6/19/63 2 00 1 80 _ Student.
41 Noel, Joe__________________ 3/ 7/63 2 25 2 00 8/1 2 50 _______
42 Noel, Joe------------------ ------------- ----------- 2.00 8/21 2 65 ----------
43. Noel, Joe------------------ ------------- ----------- 2 25 9/18 2 75 ----------
44. Noel, Joe__________________ _____________ ___________ 2 25 10/23 2 85
15 Paine, Harold_____________ 7/17/63 2 50 1 80 ______________ 8/23/63 Part-time.
46 Pitts, Earl________________ 7/29/63 2 50 1 80 ______________ P/ 7/63
47 Pitts, Harper_____________ 7/29/63 2 50 1 80 ______________ 8/27/63
48 Pitts, Winston____________ 7/29/63 2 50 1.80 _
49 Queen, Robt______________ 7/19/63 2 50 1 80 ______________ 8/27/63
50 Rafton, Phil______________ 7/19/63 2 50 1 FO ______________ 8/ 1/63
51 Rednose, Nathen_________ 3/ 8/63 2 65 ___________ ______________ 7/25/63
52 Santio, Kenneth__________ 7/19/63 2 50 1 80 ______________ 8/20/63
53 Short, Robt ______________ 3/ 6/62 3 40 2 75 ______________ 8/20/63
54 Sparks, Albert____________ 7/16/63 2 50 1 80 ______________ 8/ 1/63
55 Talley, James_____________ 3/ 5/63 2 75 2 25 9/25 2 85 ----------
56 Thomas, Albert ----------- 7/15/63 2 50 1 80 8/2 2 65 8/27/63
57 Thompson, Albert________ 4/13/62 2 85 2 75 8/2 2 95 ----------
58 Titus, Clayton____________ 3/20/63 2 50 2 00 ______________ __________ Part-time
59 Titus. Edward____________ 4/ 8/63 2 50 2 00 ______________ 8/20/63 Part-time
See footnote at end of table.
UNITED MOVING & STORAGE, INC.
APPENDIX B-Continued
1413
(1) (2) (3) (4) (5) (6)
Employee Wage rate Contract Wage Term
Employed on rate on increases comments
7/25/63 8/1/63
60. Titus, Jimmy_____________ 6/30/61 2.85 2.75 8/20 (1) _
61. Titus, Kenneth ----------- 7/22/63 2.50 1.80 _ Part-time.
62. Valera, Aloses_____________ 7/15/63 2.00 1.80 --------------
63. Ver Hagen, Clem --------- 7/ 3/63 2.74 2.75 8/2 2.85 _______
64. Walling, Richard --------- 7/22/63 2.50 1.80 8/2 2.60 9/25/63
65. Webster, Chas____________ 10/19/61 3.05 2.75 _
66. Willard, Vinson________-__ 7/16/63 2.50 ___________ ______________ __
67. Williams, Albert ---------- 7/17/63 2.50 ___________ ______________ 7/18/63
i Salaried.
United Moving & Storage, Inc. and Kenneth D. Maier. Case
No. 9-CA-3114-2. April 2, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,'
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. In his Deci-
sion the Trial Examiner also made findings and recommendations
with respect to Case No. 9-RC-5752. Inasmuch as the election in
that case was conducted pursuant to an agreement for consent elec-
tion, and inasmuch as the Regional Director's report on election,
objections to election, order consolidating cases and notice of hearing,
dated May 8, 1964, provided that, upon issuance of the Trial Exami-
ner's Decision, the representation case be referred to the Regional
Director for further proceedings, the Board, on December 8, 1964,
severed the cases. The Trial Examiner also found that Respondent's
discharge of employee Kenneth D. Maier was not violative of Section
8(a) (3) of the National Labor Relations Act, as amended, and
recommended dismissal of this allegation. Thereafter, the General
Counsel filed limited exceptions, with a supporting brief, to the Trial
Examiner's Decision, and an answering brief was filed by
Respondent.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
1 Although the Trial Examiner did not specifically state that the Respondent was con-
tinuing to engage in unfair labor practices , this finding is implicit in his conclusion that
the unfair labor practices which he found had been committed had not been remedied.
151 NLRB No. 137.