Carter Machine and Tool Co.

National Labor Relations Board - Board Decisions

Sep 21, 1961

133 N.L.R.B. 247 (N.L.R.B. 1961)

CARTER MACHINE AND TOOL CO . 247
such rights may be limited by the proviso in Section 8(a)(3) of the Act, as
modified by the Labor Management Reporting and Disclosure Act of 1959.
SUPER OPERATING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posited for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Carter Machine and Tool Co. and UAW, AFL-CIO and its Local
622. Case No. 13-CA-3729. September 21, 1961
DECISION AND ORDER
On January 30, 1961, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report together with a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as hereinafter set forth.
1. We find, in agreement with the Trial Examiner, that Respondent
violated Section 8(a) (5) by refusing to recognize and bargain with
the Union after the contract between the parties, which ran initially
from May 1, 1959, until May 1, 1960, had been automatically renewed
for an additional year. The record fully supports the Trial Exam-
iner's finding that Respondent failed to give the requisite 60-day no-
tice required by the terms of the contract to forestall its automatic
renewal 2
1 Respondent has notified the Board of its intention to comply with the recommendations
of the Trial Examiner as to the 8(a) (3) findings and remedy . It excepts , however, to the
Trial Examiner 's findings of the 8 ( a) (5) violations.
I In accordance with customary legal construction, the Board has held that a contract
running "until" a certain date means "exclusive of" the day named . See Hemisphere
Steel Products , Inc, 131 NLRB 56; Williams Laundry Company , 97 NLRB 995 Thus
the present contract, which came into effect on May 1, 1959, and was to run initially
"until" May 1, 1960, expired at midnight of April 30. Even were we to apply the rules
of construction of the Illinois statutes ( Illinois Revised Statutes, 1959, chapter 131, par
133 NLRB No. 38.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the agreement between parties was automatically renewed,
Respondent was obligated to continue to recognize and bargain with
the Union with respect to any matter relating to such contract during
its term.'
However, in finding that the Respondent violated Section 8(a) (5)
in the manner hereinbefore set forth, we do not rely thereon as the
sole ground for finding that Respondent refused to bargain with the
Union in good faith. We believe that Respondent also refused to bar-
gain in good faith for the following additional reasons :
The record shows that the Board certified the Union on April 15,
1959, and that the parties signed a contract on May 1, 1959, which was
to run until May 1, 1960, and from year to year thereafter unless either
party gave the other 60 days' notice prior to termination. On March
4, 1960, Respondent served notice on the Union that it would not re-
new contractual relations after May 1, on the alleged ground that the
Union was no longer the majority representative of the employees.
Accordingly, notwithstanding the Union's demand on May 2, 1960,
for a meeting with the Respondent to discuss contract-related matters,
the Respondent has persisted in its refusal to bargain with the Union.
There is no evidence in the record whatsoever to indicate that at
any time since its certification the Union had lost its majority status
or that the Respondent had reasonable grounds for believing that the
Union was no longer the majority representative of Respondent's
employees. The sporadic expressions of doubt by Respondent's presi-
dent in this regard, standing alone, amount to nothing more than bare
assertions of a belief, and in the absence of more cogent facts do not
amount to a good-faith doubt of the Union's majority status. Its
lack of good faith in dealing with the Union is further demonstrated
by the contemporaneous discriminatory discharge of three employees
whom it accused of being active in union affairs.
The Board has previously held that even after the end of the certi-
fication year a presumption of a union's majority status continues."
At the termination of the certification year this presumption becomes
rebuttable, and the employer can, without violating the Act, refuse
to bargain with the union on the ground that it doubts the union's
majority, provided that the doubt is in good faith.5 Two factors are
essential prerequisites to any finding that the employer raised the ma-
jority issue in good faith where a union has been certified by the
Board. There must, first of all, have been some reasonable ground
for believing that the union had lost its majority status since its cer-
1 11; chapter 100, par. 6; Rules and Regulations of the National Labor Relations Board,
Series 8, Section 102 114 ). cited by Respondent , which we find inapplicable , it is clear
that the notice given was not timely to forestall automatic renewal of the contract.
Shamrock Dairy, Inc , et al, 119 NLRB 998, 1002.
Celanese Corporation of America, 95 NLRB 664 , 673 ; Ray Brooks v. N L R B.. 348
U.S 96 (1954).
5 Ibid.
CARTER MACHINE AND TOOL CO. 249
tification. And secondly, the majority issue must not have been raised
by the employer in a context of illegal antiunion activities, or other
conduct by the employer aimed at causing disaffection from the union
or indicating that in raising the majority issue the employer was
merely seeking to gain time in which to undermine the union s
In the instant proceeding there is a complete absence of evidence
of a reasonable ground for doubting the Union's majority status. We
find, therefore, particularly in view of the discriminatory practices
engaged in by the Respondent aimed at discouraging membership in
the Union and in destroying its representative status, that the Re-
spondent had no good-faith doubt of the Union's continuing majority
status in the certified unit, and therefore violated Section 8(a) (5)
of the Act by refusing to bargain with the Union in good faith.'
THE REMEDY
Having found, in agreement with the Trial Examiner, that the
Respondent has engaged in certain unfair labor practices, we shall
order Respondent to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
By refusing to bargain with the Union on and after May 2, 1960,
during the course of a valid bargaining contract which had been auto-
matically renewed on May 1, 1960, for a period of 1 year, Respondent
failed to perform its duty to bargain in good faith as required by the
Act. Since this agreement, which was dishonored by the Respondent
by its refusal to bargain, would have run for a period of 1 year, we
shall order the Respondent, upon the Union's request, to reinstate that
agreement, containing the automatic renewal clauses set forth therein.
If no such request is made, we shall order the Respondent, upon re-
quest, to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit, and, if an
understanding is reached, to embody such understanding in a signed
agreement.8
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Carter Machine
and Tool Co., Rockford, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
8 Ibid.
7In view of the finding that the Respondent violated Section 8 ( a) (5) without regard to
the provisions of Section '8(d), we find it unnecessary to pass upon the question as to
whether the Respondent also violated Section 8 ( a)(5) by its failure to comply with the
provisions of Section 8(d).
8 The U8adel Trophy Menu!acturer8, Inc., 131 NLRB 1347.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing , if requested to do so by UAW, AFL-CIO and its
Local 622, to reinstate in full force and effect for a period of 1 year
the contract executed by the parties on May 1, 1959, and herein found
to have been renewed according to its terms on May 1, 1960 , or, if no
such request is made, refusing on request to bargain collectively with
the Union as the exclusive bargaining representative of all production
and maintenance employees including group leaders at Respondent's
Rockford , Illinois , plant, excluding office and clerical employees,
guards, and all supervisors as defined in the Act , with respect to wages,
hours, and other terms and conditions of employment , and, if an un-
derstanding is reached , embody such understanding in a signed
agreement.
(b) Discouraging membership in the above-named labor organiza-
tions, or any other labor organization of its employees , by discriminat-
ing in regard to their hire or tenure of employment or any term or
condition of employment.
(c) In any other manner interfering with , restraining , or coercing
its employees in the exercise of their right to self-organization, to
join , form, or assist labor organizations , including the above-named
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 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, 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, as amended :
(a) Upon request of the above -named Unions, reinstate in full
force and effect for a period of 1 year the contract executed by the
parties on May 1 , 1959, and herein found to have been renewed on
May 1, 1960 , or, upon request , bargain collectively with them as the
exclusive representative of the employees in the above-described unit,
and, if an understanding is reached , embody such understanding in a
signed agreement.
(b) Offer Tressie White, Ione Buell , and Lucy Davis immediate
and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and
privileges , and make each of them whole in the manner set forth in
the section of the Intermediate Report entitled , "The Remedy," as
modified by the remedy provision of the Decision.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying , all payroll records and reports,
social security payment records, timecards , personnel records and re-
CARTER MACHINE AND TOOL CO. 251
ports, and all other records necessary to analyze the amounts of back-
pay due and other benefits due and the rights of employment under the
terms of this Order.
(d) Post at its plant at Rockford, Illinois, copies of the notice at-
tached hereto marked "Appendix." 9 Copies of such notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being signed by the authorized representative of the Respond-
ent, be posted immediately upon the receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any other
materials.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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 Labor Management
Relations Act, as amended, we hereby notify our employees that :
WE WILL, if requested to do so by UAW, AFL-CIO and its
Local 622, reinstate in full force and effect for a period of 1 year
the agreement reached with said Union on May 1, 1959, which
was renewed on May 1, 1960. If no such request is made, we will
upon request bargain collectively with UAW, AFL-CIO and its
Local 622 as the exclusive representative of all our employees
in the appropriate unit with respect to rates of pay, wages, hours
of employment, and all other conditions of employment.
The appropriate unit is :
All our production and maintenance employees including group
leaders, but excluding office and clerical employees, guards, and
all supervisors as defined in the Act.
WE WILL NOT discourage membership in UAW, AFL-CIO and
its Local 622, or any other labor organization, by discriminating
in regard to the hire or tenure of employment or any term or
condition of employment of our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization to form labor organizations, to join or assist the
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named labor organizations, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship 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.
WE, WILL offer the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of our discrimination against
them :
Tressie White
lone Buell
Lucy Davis
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, 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, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
CARTER MACHINE AND TOOL Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and Inust not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Carter Machine and Tool Co., herein also called the
Respondent or the Company , involves Section 8(a)(1), (3), and (5 ) allegations,
and was initiated by a charge filed June 8, 1960, by UAW, AFL-CIO and its Local
622, herein also called the Charging Party or the Union . A hearing was conducted
on September 7, 1960, at Rockford , Illinois. The Respondent filed a brief with the
duly designated Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , an Illinois corporation , is engaged at Rockford , Illinois, in the
manufacture , sale, and distribution of toys and related products . During 1959,
which is a representative year , the Respondent received goods valued in excess of
$50,000 , directly from points outside the State of Illinois . It is found that the Re-
spondent is engaged in commerce within the meaning of the Act.
CARTER MACHINE AND TOOL CO . 253
H. THE LABOR ORGANIZATIONS INVOLVED
UAW, AFL-CIO and its Local 622 are labor organizations within the meaning
of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented are whether the Company interrogated its employees; dis-
charged Tressie White about April 28, lone Buell about May 2, and Lucy Davis about
June 7, 1960; and refused to bargain beginning about March 4, 1960, in violation of
Section 8(a) (1) ; (3), and (5) of the Act.
B. The refusal to bargain
On April 7, 1959, an election by secret ballot was conducted under the supervision
of the Regional Director among all production and maintenance employees, includ-
ing group leaders of the Company, but excluding office and clerical employees,
guards, and all supervisors as defined in the Act. A majority of the above employees
having selected to be represented by the Union, on April 15, the Regional Director
certified the Union as the exclusive collective-bargaining representative of the em-
ployees in the above-described unit.
After a strike of about a week the Union and the Company executed a bargaining
agreement on May 1, 1959, which was to be effective until May 1, 1960, and from
year to year thereafter, unless written notice of termination of the contract was given
by either party to the other on or before 60 days prior to the termination date.'
In February 1960 there were various exchanges between the parties under the
terms of the contract concerning certain substantive provisions, during which period
the Company took the position that the Union no longer represented a majority of the
employees and suggested a decertification election. The Company also suggested that
if the Union would forget about renewing the contract, the Company would forget
about the election. The Union took the position that an election had been held
and that the Union still represented a majority of the employees. The Company
also stated that the relationship with the Union was not good, and the Union pointed
out that when a union comes into a plant both sides have to make an adjustment.
On March 2, the Company mailed the following letter to the Union:
This is to notify you that we will terminate our agreement on May 1, 1960.
This letter was not received by the Union until March 4. The Company did not
notify anyone else besides the Union of its desire to terminate the contract.
In the latter part of March and early May the Union advised the Company that
in pursuance of the contract, it named certain persons to the grievance committee
and sought a meeting to resolve differences which it stated had arisen. The Company
took the position that the contract had been terminated by the notice of March 2,
and admittedly has refused to recognize the Union since May 2. The Union took
the position that the notice was untimely and that the contract was in effect.
The Company, as has been found, admittedly refused to recognize the Union
beginning May 2, 1960. As it appears that the Union did not receive the Company's
notice of termination until March 4 2-less than 60 days prior to the termination
or expiration of the contract-it is found that the Company did not effect timely
written notice upon the Union as required by the contract and that by its terms the
contract continued in full force and effect on May 1, 1960, and for at least 1 year
thereafter as provided for by the contract. It also appears that the notice the
Company gave the Union was not timely served upon the Union as provided for in
Section 8 (d) (1) and hence the Company failed in its duty to bargain. Further, as
it appears that the Company did not notify anyone other than the Union of its desire
to terminate the contract, it is found that the Company thereby failed in its duty to
notify the Federal Mediation and Conciliation Service of the existence of a dispute
as required by Section 8(d)(3), and in this respect also failed to fulfill its duty to
1 The text of the provision involved follows :
Section 3. Notwithstanding Section 2 above, this agreement shall be in full force
and effect as of the date of signing and shall remain in full force and effect until
May 1 , 1960, and shall continue thereafter in full force and effect from year to year,
unless written notice of termination of the agreement is given by either party to the
other in writing on or before sixty ( 60) days prior to the termination date.
2 The Ohio Oil Company, 91 NLRB 759, 761.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain. Accordingly, it is found that by refusing to recognize the Union during
the course of a valid contract and by failing to fulfill its duty to bargain as set forth
in Section 8(d)(1) and (3), beginning May 2, 1960, the Company violated Section
8(a)(5) and (1) of the Act.
C. The discrimination
The Respondent contends through the testimony of its president, Joe Carter, that
Tressie White, lone Buell , and Lucy Davis, who are alleged to have been discrimina-
torily discharged, were discharged for having "engaged in acts of insubordination,
and acts to deliberately cause economic loss to the Respondent, repeatedly and with
evident relish, in the knowledge that the management would be unable to remove
them." Carter further testified that "The fact that these people belonged to the
Union did extend their employment to the expiration of the contract, because of
the management inability to discharge anyone of this group and make it stick."
Carter also testified that the individuals involved did "not conduct themselves eco-
nomically while in the shop."
Tressie White was first employed by the Company in July 1958. It is admitted
that she was discharged about April 28, 1960. Carter testified that he did not renew
White's leave of absence which she had then been on as he considered that White
had been discharged. Carter explained that he had discharged White, "For, oh, lack
of cooperation, unauthorized time off, attitude, slowing up on the job; just various
sundry things." Further, according to Carter, White was doing these things daily.
About the end of May 1959, Harland Knuth, general foreman in charge of the
assembly and finishing departments, told White after she had returned to work from
a leave of absence that Carter did not think that she belonged to a union; and
further, that as she was a union member Carter was going to get rid of her and all
the rest of the union people. White was thereupon discharged. A grievance was
filed concerning this discharge. As a result of a settlement of this grievance between
the Union and the Company, White was returned to work in July at a lower rate.
In March 1960 White was in an automobile accident. At the recommendation of
her physician she requested and obtained a leave of absence from the Company for a
period of time ending May 1. About the last of April, upon the advice of her physi-
cian that she not return to work at that time, White telephoned Carter and requested
an extension of her leave of absence. Carter then told White that she was not em-
ployed by the Company, and that the Union no longer represented the employees at
the Company and could not get her back to work.
lone Buell was first employed by the Company in June 1958 and was discharged
on May 2, 1960. On the day of her discharge, about an hour before quitting time,
Carter asked Buell if she remembered what he had told her in September. Buell
replied that she remembered. In response to inquiries by Carter, Buell stated that
she neither wanted to be discharged nor wanted to resign. Carter indicated that
Buell would be discharged at the close of the day. At the end of the day Buell's
foreman handed Buell her check and stated that he hoped that she did not think he
had anything to do with it.
In 'September 1959, Buell and Carter had had a conversation. During this con-
versation, according to Buell, Buell asked Carter whether or not employees who
belonged to the Union if they quit or were discharged would be blackballed. Carter
then stated that if Buell , Tressie White, two named other employees, and she knew
who else he meant, quit in 30 days he would not blackball them, but that if they did
not quit they would never get a job in Rockford and that he did not care if they
starved to death.
In September Carter had posted a notice to the effect that he had turned down
all the demands the Union had made and that no further wage increases would be
granted. According to Carter, Buell spent the next day standing and talking and
doing very little work. She, according to Carter, went from one group of employees
to another conducting meetings . That afternoon, further according to Carter, he
told Buell that that day's work was going to lead to the discharge of some of the
employees including Buell as she was not taking care of her job. Carter further
testified that he sought to have Buell resign, that she refused, and that he told Buell
that some day he would have to discharge her. Carter testified also that there was
sufficient cause ,to discharge Buell at that time, but that he would have had to take
her back because of the Union as he had in other instances .3 According to Carter,
8 Carter explained that discharges had been discussed with the Union, that the Company
and the Union would try to settle the matter, and that the Company would take the
employees back rather than go to arbitration as provided for in the contract.
CARTER MACHINE AND TOOL CO. 255
he discharged Buell on May 2 as he then considered that the contract with the Union
had been terminated.
According to Buell she never received any notice or warning regarding her work
or her conduct at the Company.
As Buell did, and Carter did not, impress the Trial Examiner as a reliable witness,
Buell's testimony is, and Carter's testimony is not, credited.
Lucy Davis was first employed by the Company in June 1958. Davis was ad-
mittedly discharged about June 7, 1960. In January 1960, the Company granted
Davis a maternity leave of absence until July 18. In June upon the advice of her
physician that she was ready to return to work, Davis called Carter and asked for
employment. Carter told her that she was through there and that he did not want
her back.
Davis was a member of the Union's negotiating committee in April 1959, and
Carter stated at a meeting that he would get rid of three of the employees on that
committee . In September in the course of processing a grievance on behalf of
two employees who had been discharged, Carter stated to Davis, a union steward,
that he was not going to fool with any more of those grievances and that he had
discharged two and eventually was going to get rid of all the union members.
In view of the observation already made as to Carter as a witness, the Trial Ex-
aminer cannot credit the explanations for the discharges he offered. These explana-
tions were not otherwise substantiated. As Foreman Knuth declared to White when
she was reemployed after a leave of absence that Carter had not thought that she
was a union member, and that Carter was going to get rid of her and the rest of the
union people; and as Carter threatened to blackball Buell and White if they did not
quit in a certain time, and declared to Davis that eventually he would get rid of all
the union members, it is found that the Company discriminatorily discharged Tressie
White about April 28, lone Buell on May 2, and Lucy Davis about June 7, 1960, in
violation of 8 (a ) ( 3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that the Respondent refused to bargain in violation of the
Act, it will be recommended that upon request the Respondent recognize and bar-
gain collectively with the Union.
As it has been found that the Respondent discriminated with regard to the hire and
tenure of employment of Tressie White about April 28, lone Buell on May 2, and
Lucy Davis about June 7, 1960, in violation of Section 8 (a) (3) and (1) of the Act,
the Trial Examiner will recommend that the Respondent offer each of them im-
mediate and full reinstatement to her former or substantially equivalent position
without prejudice to her seniority or other rights and privileges. See The Chase Na-
tional Bank, etc., 65 NLRB 827. It will be further recommended that the Respondent
make the aforesaid employees whole for any loss of pay suffered by reason of the
discrimination against them. Loss of pay shall be based upon earnings which these
employees normally would have earned from the date of the discrimination against
each of them, to the date or dates of reinstatement, less net earnings , computed on
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344. It will also be recommended that the Respondent preserve and, upon
request, make available to the Board payroll and other records to facilitate the com-
putation of the backpay due.
As the unfair labor practices committed by the Respondent involved discrimina-
tion and are therefore of a character striking at the root of employee rights safe-
guarded by the Act, it will be recommended that the Respondent cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. UAW, AFL-CIO and its Local 622 are labor organizations within the meaning
of the Act.
2. By discriminating in regard to the hire and tenure of employment of the em-
ployees named above in the section entitled "The Remedy ," thereby discouraging
membership in the Union , the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) and (1) of the Act.
3. By refusing to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit set forth in section B , beginning May 2,
1960 , the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not engage in interrogation as alleged in the complaint.
[Recommendations omitted from publication.]
The Crestline Company and Midwestern Millmen District Coun-
cil, affiliated Local Union 1594 . Case No. 18-CA-1153. Sep-
tember 21, 1961
DECISION AND ORDER
On October 18, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as noted hereafter.
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) by unilaterally terminating its share of the employee
group insurance program and by the unilateral withholding of holi-
day pay for May 30 and July 4.
The parties began negotiations for a new agreement in March 1960
to replace an agreement due to expire on April 30,1960. The expiring
contract provided for certain paid holidays, including Memorial Day
and July 4, and also required the employer to pay 60 percent of the
cost of the employees' group insurance. The parties met and ne-
gotiated both before and after the expiration of the old agreement
and, despite some areas of disagreement , the union negotiators agreed
to submit the Employer's proposals to the employees at a meeting
133 NLRB No. 30.