Chamberlain Corp.

National Labor Relations Board - Board Decisions

Feb 3, 1948

75 N.L.R.B. 1188 (N.L.R.B. 1948)

In the Matter Of CHAMBERLAIN CORPORATION and HOTEL AND RESTAU-
RANT EMPLOYEES UNION, LoCAL 146, A. F. OF L.
Case No. 18-C-1881.Decided February 3,1948
Mr. Stephen Reynolds, for the Board.
Messrs. B. F. Swisher, of Waterloo, Iowa, and George Kamenow, of
Detroit, Mich., for the respondent.
Mr. Charles Davis, of Waterloo, Iowa, for the Union.
DECISION
AND
ORDER
On December 2, 1946, Trial Examiner John H. Eadie 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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the respondent had not engaged in certain other unfair labor
practices and recommended dismissal of the complaint as to them.
Thereafter, counsel for the Board filed exceptions to the Interme-
diate 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 recommendations
of the Trial Examiner, with the additions and modifications noted
below.
1. The Trial Examiner found, and we agree, that the respondent
did not curtail the operations of its plant cafeteria, and lay off 12
employees employed there, because of their membership in and activi-
ties on behalf of the Union. Counsel for the Board contends in his
'Those provisions of Section 8 (1), (3), and (5) of the National Labor Relations Act,
which the complaint herein alleged were violated, are continued in Sections 8 (a) (1),
8 (a) (3), and 8 (a) (5) of the Act, as amended by the Labor Management Relations Act,
1947.
75 N. L R. B., No. 138.
1188
CHAMBERLAIN CORPORATION 1189
brief that , irrespective of the respondent's motive for reducing the size
of its cafeteria staff, the respondent unlawfully discriminated by the
order in which the employees were selected for lay-off . He refers
specifically to the fact that the respondent laid off all 3 cashiers on
May 25, 1946, while retaining at least 2 employees in all other cate-
gories of employees except porters. Counsel for the Board argues
that the decision to dispense with all 3 cashiers was made in order
to reach for lay-off the cashier with the highest seniority , Margaret
Reints, who , the record shows, had recruited virtually all the members
for the Union . We note that the complaint herein does not specifically
allege that the respondent discriminated in toe order of selecting em-
ployees for lay-off. Moreover , although the record contains certain
facts which appear to bear on this issue , we are not satisfied that such
issue was fully litigated in the proceedings herein. Accordingly, we
shall make no findings with respect thereto.
2. We also agree with the Trial Examiner 's conclusion that the re-
spondent did not unlawfully refuse to recognize and bargain with the
Union. The Union first requested exclusive recognition on May 27,
1946, at a meeting between Wood, the Union 's representative, and
Kommelter and Leverton representing the respondent . When Wood
stated at the meeting that the Union represented a majority of the
employees , Leverton replied that all matters pertaining to labor rela-
tions were handled by Kamenow, the respondent 's labor relations ad-
viser, and that the Union would have to await Kamenow's arrival for
any action on its request . Wood then referred to certain coercive
statements made by Cafeteria Manager Pikell to the cafeteria em-
ployees. Leverton said that the respondent "had no knowledge that
any such condition existed, that it would be investigated . If [the re-
spondent ] found that such a condition did exist , it would be corrected
the salve as it would be in any department in the plant , that [the re-
spondent] would not perinit a thing of that kind to exist anywhere." 2
The Union was apparently satisfied with this disposition of the matter
for it made no other suggestion at the time.
The following week, Vice-President Etten, Personnel Director
Howell, and their two assistants , Leverton and Kommelter , all ques-
tioned Pikell concerning Wood's accusations, and Etten warned Pikell
against a repetition of her questioned conduct. Howell followed up
this reprimand shortly afterwards , when he asked several employees
how they were getting along, whether they were having any trouble,
2 As found by the Trial Examiner , no previous complaint had been made concerning
Pikell 's conduct
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and whether there was anything he could do to help them. None of
the employees made complaints of any kind to him.s
On June 3, 1946, Kamenow met with Wood. Wood repeated the
Union's claim to majority status and again requested the respondent
to recognize the Union as bargaining representative. He offered to
prove the Union's majority representation by means of a cross check
of membership cards. Kamenow replied that the respondent would
not, as a matter of policy, recognize a union on its mere claim to ma-
jority or on a cross check of cards; and that the only proof of majority
acceptable to the respondent would be through a Board-directed elec-
tion. Kamenow was unwilling to agree to a consent election which
Wood then suggested. Wood thereupon agreed to seek a Board certifi-
cation and on the next day, June 4, the Union filed a petition with the
Board. On June 19, 1946, at Wood's request, John Kehoe, business
representative of the IAM, which then represented the respondent's
production and maintenance employees, asked Kamenow to meet with
Wood. Kamenow refused, stating that he did not have the time for a
meeting. The respondent closed the cafeteria entirely on July 1, 1946.
On July 3, 1946, the Union sent a letter to Kamenow requesting a con-
ference. The respondent ignored this letter. On July 9, 1946, the
Union withdrew its petition for an election. The respondent was
notified of this fact by the Regional Director on July 11, 1946.
We are not convinced from the foregoing facts, or from this entire
record as a whole, that the respondent's purpose in insisting upon a
Board certification was to gain time in order to undermine the Union's
majority, or to accomplish any other unlawful purpose. We find that
the respondent's insistence on an election was a good faith request for
reasonable proof of the Union's majority status 4 and that, by with-
holding recognition of the Union until its representative status was
established in such election, the respondent did not unlawfully re-
fuse to bargain within the meaning of Section 8 (5) of the Act .5
3. The Trial Examiner recommends that the respondent be ordered
to post compliance notices in conspicuous places throughout the re-
spondent's plant. Counsel for the Board points out that the cafeteria
was still closed at the time of the hearing herein and asserts that mail-
ing of compliance notices is therefore necessary in order properly to
publicize such notices. His contention assumes the possibility, in
no way precluded by the record, that the cafeteria will still be closed
3 Some, if not all, of the employees with whom Howell spoke were employees to whom
Pikell had made coercive statements.
4 Cf. Matter of Roanoke Public Warehouse , 72 N. L R. B. 1281.
5 In reaching this conclusion we do not rely on the Trial Examiner 's finding that " the re-
spondent was responsible for Pikell 's statements but that such statements did not reflect
the respondent ' s policy toward the Union "
CHAMBERLAIN CORPORATION 1191
at the time of our order herein and that, therefore, few, or none, of
the laid-off cafeteria employees to whom Pikell's unlawful conduct
was addressed are currently employed at the respondent's plant. We
find merit in the contention of counsel for the Board. If the cafeteria
is not in operation at the time of the order herein, we do not believe
that posting of compliance notices will be adequate to effectuate the
policies of the Act. We shall, therefore,'order the respondent to mail
copies of the notices to the employees who were laid off following
Pikell's unlawful conduct, in the event the cafeteria continues closed.e
ORDER
Upon the entire record in the 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, Chamberlain
Corporation, Waterloo, Iowa, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from interrogating employees concerning their
union membership and from threatening to penalize them by dis-
charge or other economic reprisal because of their union membership
and other organizational activities, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to join or
assist Hotel and Restaurant Employees Union, Local 146, A. F. of L.,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act, as amended.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act, as amended :
(a) Post at its plant at Waterloo, Iowa, copies of the notice attached
hereto, marked "Appendix A," 7 and, in the event the cafeteria is
closed, mails a copy of such notice to each person who was employed
in the respondent's cafeteria during the period between May 21 and
July 1, 1946. Copies of this notice, to be furnished by the Regional
Director for the Eighteenth Region, shall, after being duly signed
by the respondent's representative, be posted by the respondent imme-
diately upon receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
6 Matter of General Motors Corporation, 67 N L. R. B. 965.
7In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice , before the words "A Decision and Order ," the words : "A
Decree of the United States Circuit Court of Appeals Enforcing."
8 By registered mail, with return receipt requested.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (3) and 8 (5) of the Act,
be, and it hereby is, dismissed.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to an 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 our employees that :
WE WILL NOT interrogate our employees concerning their union
membership, threaten to penalize them by discharge and other
economic reprisal because of their union membership and other
organizational activities, or 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
HOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 146, A. F. of L.,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
CHAMBERLAIN CORPORATION,
Employer.
Dated ----------------- By --------------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Stephen Reynolds, Esq ., for the Board.
B. F. Swisher, Esq, of Waterloo, Iowa, and Mr. George Kanzenow, of Detroit,
Mich., for the respondent.
Mr. Charles Davis, Waterloo , Iowa, for the Union.
CHAMBERLAIN CORPORATION 1193
STATEMENT OF TAE CASE
Upon an amended charge duly filed by Hotel and Restaurant Employees Union,
Local 146, A. F. of L., herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eighteenth
Region (Minneapolis, Minnesota), issued its complaint dated August 26, 1946.
against Chamberlain Corporation, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing were duly served upon the
respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that all cafeteria employees, excluding supervisors, constitute a unit appro-
priate for the purposes of collective bargaining ; (2) that on or about May 21, 1946,
a majority of the employees in the aforesaid appropriate unit designated the
Union as their representative for the purposes of collective bargaining; (3) that
at all times since May 21, 1946, the Union has been the exclusive representative
of all employees in said appropriate unit; (4) that on or about May 27, 1946,
June 3, 1946, and June 19, 1946, the Union requested the respondent to bargain col-
lectively; (5) that on or about said dates, and at all times thereafter, the respond-
ent refused and still refuses to bargain with the Union; (6) that the respondent
laid off or discharged on or about May 25, 1946, Margaret Reints, Mary Crosser,
June Crosser, Emily Kipp, Lola Cordray and Carrie Neissen and on or about June
22,1946, Anna McCunniff, Nell Shine, Tillie Hurlbut, Mable Slaughter, Martha Mc-
Cunniff and Sadie Boren, and at all times since has failed and refused to recall
to work said employees, and each of them, because of their membership in and
activities on behalf of the Union ; and (7) that by the above acts and from on or
about May 21, 1946, to the date of issuance of the complaint, (a) by questioning
employees about their union membership and activities, (b) by warning and
discouraging employees against union membership and activities, (c) by threat-
ening employees with loss of employment because of their union activities and
affiliations, and (d) by making statements disparaging unions and their members
and leaders, the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer admitting certain allegations of the com-
plaint as to the nature of its business, but denying the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held at Waterloo, Iowa, on September 24.
25, and 26, 1946, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by
counsel, and the Union by its representative. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the conclusion of the case, counsel for the
Board moved to conform the complaint to the proof with respect to minor matters
such as names, dates, and spelling The motion was granted without objection.
Although afforded an opportunity to do so, none of the parties argued orally
before the undersigned. Subsequent to the hearing, counsel for the Board and
for the respondent filed briefs with the undersigned.
Upon the entire record and from his observation of the witnesses, the
undersigned makes the following :
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT 1
I. THE BUSINESS OF THE RESPONDENT
Chamberlain Corporation is an Iowa corporation with its principal office and
plant located at Waterloo, Iowa. At its said place of business, the respondent
is engaged in the manufacture, sale, and distribution of wringers, and wringer
rollers. In the course and conduct of its business and in the operation of the
aforesaid plant, the respondent causes and has continuously caused, large
quantities of raw materials, consisting of steel, die-casting, rubber, wood, plating
supplies, and other materials to be purchased and transported from and through
States of the United States to its said plant. During the calendar year 1945,
raw materials exceeding $1,000,000 in value were purchased for use at the said
plant, of which in excess of 75 percent represented purchases and shipments to
the plant from points outside the State of Iowa.
During the same period, the respondent made sales of its finished products in
excess of $2,000,000, approximately 90 percent of which represented shipments
from the said plant to points outside the State of Iowa.
During the years from 1941 to 1946 and at the peak of its employment, the
respondent employed approximately between 1500 and 1600 persons. During
the month of May 1946, the respondent further reduced the number of its
employees from about 900 to 600.
The respondent is a wholly owned subsidiary of American Wringer Company,
Inc., a Rhode Island corporation.
H. THE ORGANIZATION INVOLVED
Hotel and Restaurant Employees Union, Local 146, A. F. of L., is a labor
organization which admits to membership certain employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
For about 5 years prior to the date of the hearing, the respondent has recog-
nized the International Association of Machinists, affiliated with the American
Federation of Labor, as the exclusive bargaining representative of its produc-
tion and maintenance employees. The respondent operated and maintained in
its plant, a cafeteria for the benefit of its employees, and the instant case is
concerned only with the cafeteria employees. The cafeteria was opened at
about December of 1943, and approximately 20 persons on the average were
employed in its operation until May of 1946. It appears that these employees
were not members of any union and that no union had attempted to organize
them prior to the beginning of 1946, nor were they at any of the times mentioned
herein covered by the contract between the International Association of
Machinists and the respondent.
Starting about January or February of 1946, the Union commenced organizing
the cafeteria employees and, as will be more fully hereinafter discussed, a
majority of said employees designated the Union as their bargaining representa-
tive on or before May 21, 1946.
1 Unless otherwise indicated , the findings of fact are based upon admitted facts or un-
contradicted evidence which the undersigned credits. `
CHAMBERLAIN CORPORATION 1 1195
B. Interference, restraint, and coercion; the alleged discriminatory lay-offs or
discharges
Florence Pikell was the manager of the respondent's cafeteria at all times
mentioned herein. She is the only person involved in the case whose statements
are claimed by the Board to constitute interference. At the hearing the
respondent contended, in effect, that it was not responsible for Pikell' s actions
since she did not have the power to hire or fire? However, it definitely appears
that Pikell had the authority to recommend such action, at least as to hiring
Moreover, the evidence shows that Pikell was the only person with supervisory
status employed in the cafeteria, and that she exercised various supervisory
powers such as requiring employees to cut their hair short. From the record
in the case as a whole it conclusively appears that Pikell was.the representative
of management in the cafeteria and that she was regarded as such by the cafeteria
employees. Accordingly, the undersigned finds that the respondent is responsible
for the statements of Pikell hereinafter related.
About April of 1944, Pikell told Carrie Neissen and Tillie Hurlbut, employees
in the cafeteria, that if a union organized the cafeteria employees, Nicholas
Etten, the respondent's vice president and general manager, would either close
the cafeteria or turn it over to new management'
Shortly after Sadie Boren was first employed in the cafeteria, Pikell told her
that she (Pikell) did not approve of unions and that she would not have any-
one working for her who belonged to a union'
About January 1946, Pikell told employee Anna McCuniff and some other
unidentified cafeteria employees that she (Pikell) would never permit anyone
to work for her who belonged to a union and that she would run the cafeteria
herself before she would let the Union organize it. At about the same time or
shortly after, Pikell told Neissen that if the Union organized the cafeteria,
"they would close the cafeteria and they wanted no part of it."
On about May 15, 1946, a number of the cafeteria employees, including all
employees alleged by the Board to have been discriminatorily laid off or dis-
charged, signed authorization cards of the Union. Thereafter, and on about
May 21, they signed application forms for membership in the Union a Pikell
was away from the plant for some few days prior to May 21, but returned to work
on that date.7 She thereafter spoke to a number of employees concerning the
Union.
On May 21, Pikell asked employee Lola Cordray if she had joined the Union.
Upon Cordray's reply in the affirmative, Pikell said, "You joined yourself right
out of a job . . . Tomorrow night is your last night." 8
3 The uncontradicted evidence shows that none of the respondent's foremen had the an-
thority to hire or fire, and that all such authority was vested in the Personnel Department.
3 Employee Sadie Boren testified credibly and without contradiction to the effect that she
was employed by the respondent after first having been interviewed by Pikell. Employee
Emily Kipp testified without contradiction along similar lines.
° Pikell was not called as a witness and the above and subsequent statements attributed
to her by witnesses for the Board stand uncontradicted. Etten is also director of both the
respondent and American Wringer Company, Inc. Although Etten, did not specifically
deny making the above statement to Pikell, his testimony as a whole constitutes a denial.
Etten impressed the undersigned as being a credible witness
Boren testified credibly to the above conversation. Margaret Reints also testified cred-
ibly that Pikell made the same statement to her at some time during 1945.
6It appears that Margaret Reints solicited the employees to sign the applications.
4 The evidence indicates that Pikell did not know of the union activities of cafeteria
employees prior to May 21.
8 Cordray, a cashier, was not laid off until May 25, however.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Rilla Towne testified credibly, in substance, that on May 21, Pikell
stated ( to a group of cafeteria employees ), "I hear you girls want to join the
union . . . you know we can 't have a union in here . . . you know I have always
been against a union" ; that Pikell asked employee Mabel Slaughter to withdraw
her application for membership in the Union ; that Slaughter refused ; that Pikell
then said to Slaughter , "You know you are going to be laid off" ; and that Pikell
finally said that since the employees had joined the Union she would have the
opportunity to cut their wages and lay them off.
On about May 21 or 22, Pikell said to employee Mary Crosser , "Mary, being
you have joined the union you will be the first one to go because you were the
last girl hired here " On May 22, Pikell stated to employee Tillie Hurlbut,
"Tillie, above all of them , I was surprised at you. I thought you were one friend
of mine who wouldn't join the union." As to a conversation with Pikell also on
May 22 , employee Emily Kipp testified credibly that Pikell said, "Well, Kipp, I
hear you have joined the union ? . . . Don't you think you have made a damn
fool of yourself ?" ' The next day Pikell told Kipp, "Well , you have just joined
yourself right out of a job." 10
About the middle of June, Pikeil at first told employee Martha McCuniff that
she (Pikell ) was getting her a raise , but later told her that she would not get
the raise as she had joined the Union.
On May 25, Carrie Neissen, Margaret Reints, Lola Cordray, Emily Kipp, June
Crosser and Mary Crosser were laid off11 The other employees named in the
complaint were laid off on June 22.
Concluding findings
The undersigned finds that the above-related actions and statements of Pikell
constitute interference, restraint, and coercion. By such actions and statements
Pikell clearly interrogated, threatened and discouraged the employees in their
union activities. The undersigned does not believe that Pikell's actions and
statements reflect the policy of the respondent The evidence shows that none
of the cafeteria employees involved complained to any officer of the respondent.
As will be hereinafter more fully related, it appears that the respondent first
learned of Pikell's anti-union conduct at a meeting with the Union on May 27.
Nevertheless, the undersigned finds that the respondent is responsible for Pikell's
statements, especially since the evidence discloses that the respondent did not
disavow them to its employees or otherwise remedy their coercive effect.
As to the lay-offs or discharges, the respondent contends, in substance, that
since its opening in December 1943, until its closing on about July 1, 1946, the
cafeteria had never been profitable but had always been operated at a substantial
loss ; that it was operated as a convenience and service to respondent's employees
and was continued so long as the over-all operations of the plant showed a profit ;
and that the lay-offs on May 25 and subsequent closing of the cafeteria were
decided upon in order to mitigate the loss on over-all operations during 1940.
In this connection it is the undisputed testimony of respondent 's witnesses that
during 1945 the cafeteria was operated at a loss of $24,050.16; that corresponding
0 Certain other statements of Pikell to employees concerning the Union or the union
activities of employees have not been related because of the language used by Pikell
10 The undersigned finds that Pikell referred to the fact that Kipp had joined the Union.
11 Reints testified, in substance, that Francis Kommelter told the employees in a group
that the respondent was forced to lay then off temporarily because of lay-offs in the plant
proper, which in turn lessened the need of help in the cafeteria . Kommelter was "executive
assistant" to Ivan Leverton , respondent ' s assistant general manager.
I
CHAMBERLAIN CORPORATION 1197
monthly losses occurred during 1946; that on over-all operations the respondent
made a profit during 1945; that from January to August 1946, the loss on over-all
operations exceeded $300,000 ; and that an increase of 8 6 percent on its product
granted by the Office of Price Administration was not sufficient for the respondent
to break even on future operations.
As heretofore related, the number of persons employed by the respondent was
reduced from about 900 to about 600 during May 1946. At the peak of its em-
ployment during the war the respondent employed approximately between 1500
and 1600 persons, and it does not appear that any substantial lay-offs of cafeteria
workers occurred prior to May 1946. On April 16, 1946, the advisability of
curtailing cafeteria operations was discussed at a director's meeting of American
Wringer Company, Inc. At this meeting, Etten opposed any curtailment of the
cafeteria until action was taken by the Office of Price Administration on the
respondent's application for an increase. However, due to further loss there-
after, it was determined at a meeting on May 21 of respondent's officers to curtail
operations in the plant as a whole and including the cafeteria, and orders for
lay-offs were accordingly issued'
Without considering the above-related contentions of the respondent and tak-
ing into consideration only the statements of Pikell to employees immediately
prior to the May 25 lav-off, it would appear that the lay-offs on that date and
the subsequent closing of the cafeteria were occasioned by the activities on behalf
of the Union by the cafeteria employees. In the undersigned's opinion, however,
the evidence as a whole does not support this inference. The respondent con-
tends that its seniority policy for its maintenance and production employees was
followed in the cafeteria lay-offs. The evidence, with one exception, supports the
respondent's contention and shows that all employees were laid off in accord-
ance with seniority by job classification.' In view of the reduction in employ-
ment from the peak of 1500 or 1600 to about 900 as of May 1, 1946, and in view
of the further reduction to 600 during the month of May, it is reasonable to as-
sume that a corresponding reduction in the cafeteria staff would normally occur.
Etten testified that on June 21 he got word that the Office of Price Administra-
tion had granted the respondent an 8.6 percent increase and that it was then
determined to close the cafeteria. The respondent had applied for a 15 percent
increase, which would have provided for a small margin of profit on its opera-
tions. The increase granted not only did not cover the losses encountered dur-
ing the first half of 1946, but also meant that the respondent would continue to
operate at a loss.
Accordingly, the undersigned is convinced that the statements of Pikell to em-
ployees did not reflect management's reasons for the lay-offs on May 25 and
June 22. Accordingly, the undersigned finds that the respondent did not lay
off or discharge on May 25 and June 22, 1946, the employees named in the com-
plaint because of their membership in and activities on behalf of the Union.
12A memorandum concerning the decisions made at the above -mentioned meeting was
read into the record
12 Carrie Neissen, who was laid off on May 25 , and Winona Harris were both classified
as counter girls Harris was laid off on May 29, but was recalled to work on June 10 She
was subsequently laid off again on June 22. The evidence indicates that Harris was a gen-
eral utility worker in the cafeteria. Moreover, there is nothing in the record that indicates
that Neissen was especially active on behalf of the Union.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged refusal to bargain collectively with the Union
1. The appropriate unit and representation by the Union of a majority therein
The complaint alleges that all cafeteria employees, excluding supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining. With respect
to this allegation, the respondent in its answer states it is ". . . without knowl-
edge with reference thereto and therefore denies the same." At the hearing
the respondent did not make any contention as to the appropriateness of the
unit or offer any proof in this respect.
The undersigned finds that all cafeteria employees, excluding supervisors,
have at all tunes material herein constituted and do now constitute an appro-
priate unit within the meaning of the Act ; he finds that said unit will insure to'
the employees of the respondent the full benefit of their rights to self-organiza-
tion and collective bargaining and otherwise effectuate the purposes of the Act.
The evidence conclusively shows that 14 out of the 17 cafeteria employees,
employed as of May 21, 1946, had designated the Union as their bargaining
agent on or before that date. As related above, 6 employees who had designated
the Union were laid off on May 25 There is no evidence that any of the're-
maining 8 union employees, with one possible exception, attempted to withdraw
their designations of the Union at any of the times mentioned herein.
The undersigned accordingly finds that on and at all times after May 21,
1946, the Union was the duly designated bargaining representative of a majority
of the employees in the aforesaid appropriate unit, and that, pursuant to the
provisions of Section 9 (a) of the Act, the Union was on May 21, 1946, and at all
times thereafter, has been and is now the exclusive representative of all em-
ployees in the aforesaid unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, or other conditions of employment.
2. The alleged refusals to bargain
Through the efforts of an official of the International Association of Machinists,
a meeting between the Union and the respondent was held on May 27, 1946.
At the meeting Sherwood Wood, an organizer of the Union, represented the
Union and Kommelter and Leverton represented the respondent. Wood stated
that the Union represented a majority of the cafeteria employees and requested
that the respondent recognize it as the bargaining representative. Leverton
replied that all matters pertaining to labor relations were handled by George
Kamenow, the respondent's labor relations adviser, and that necessarily a fur-
ther meeting would have to be held with him At the May 27 meeting, Wood
also stated that some of the cafeteria employees had been discriminatorily
laid off and he also made reference to the statements of Pikell to the employees.
Wood also submitted at this meeting a proposed collective bargaining contract.
The respondent and the Union met again on June 3 and Kamenow was present.
Wood again stated that the Union represented a majority of the cafeteria em-
ployees and requested that the respondent recognize it as the bargaining agent.
Kamenow replied that the respondent would not voluntarily recognize any
union for any group of employees as that was against its policy Wood sug-
gested a cross-check of the cards with the pay roll, but Kamenow refused on
the ground that that was also against the respondent's policy. Kamenow stated
that respondent would not object to an election, but would not agree to a consent
election. He stated that it would be necessary for the Union to file a petition
CHAMBERLAIN CORPORATION 1199
with the Board and that a hearing be held. Wood stated that he would file a
petition for certification, since that was the respondent's position. At the
meeting, Kamenow informed Wood that because the cafeteria was losing a con-
siderable amount of money, cafeteria services would be curtailed and might be
discontinued entirely.
The Union filed a petition for certification with the Board on about June 4.
John Kehoe, business representative of the International Association- of
Machinists, on June 19, at Wood's request, asked Kamenow if he would meet
with Wood. Kamenow refused and stated that he did not have the time for a
meeting.' In his talk with Kehoe, Kamenow further mentioned the fact that
the respondent was going to cut down services in the cafeteria.11
As stated above, the cafeteria was closed on or about July 1. On or about
July 2, the Union filed unfair labor practice charges against the respondent
with the Board and the petition for certification was withdrawn at or about the
same time On or about July 3, the Union sent a letter dated June 5, 1946, to
Kamenow requesting a conference "for the purpose to adjust problems affecting
employees of the cafeteria since becoming members of the Union." A copy of the
letter was also sent to Leverton 16 - The respondent ignored the Union's letter.
Concluding findings
The respondent met with the Union at the latter's request on May 27 and
June 3. At the June 3 conference Kamenow insisted that the Union file a petition
for certification with the Board and the Union agreed. The respondent had a
right to insist on this procedure , provided that it was acting in good faith. The
undersigned has found above that the respondent was responsible for Pikell's
statements but that such statements did not reflect the respondent's policy toward
the Union. The undersigned has also found that the respondent did not lay off
or discharge any cafeteria employees because of their membership in or activities
on behalf of the Union. Therefore, in the undersigned's opinion, it does not
appear that the respondent intended to use the time gained by the certification
proceeding to undermine the Union's majority or was otherwise acting in bad
faith. In this connection it is noteworthy that the respondent had a collective
bargaining contract with the International Association of Machinists, also
affiliated with the American Federation of Labor. '
As for the Board's contentions that Kamenow's refusal to meet with-Wood
on June 19 and the respondent's failure to answer the Union's letter dated
June 5,17 constitute refusals to bargain , the undersigned finds them to be without
merit. Under the circumstances here disclosed , until such time as the Board
certified the Union as the bargaining agent, the respondent was not obligated to
meet further with the Union. Moreover, Wood's request for the June 19 meeting
with Kamenow, transmitted through Kehoe, could not be considered as a formal
demand for a meeting , and Kamenow was justified in refusing to meet Wood.
The cafeteria was closed by the respondent on or about July 1 for economic
14 Kamenow 's office was in Detroit , Michigan , and it appears that he periodically visited
the respondent ' s plant.
ss The above conversation was testified to by Kehoe . In his testimony Kamenow stated
that he had a meeting with the International Association of Machinists on June 19 Kame-
now did not specifically deny the conversation as testified to by Kehoe but stated that he
did not recall " the cafeteria ever being mentioned in that meeting at all."
19 Charles Davis, business agent of the Union, testified that he did not mail the letter until
July 3, although .it was dated June 5.
17 As noted above, the letter was not mailed until July 3.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons and Kamenow had warned Wood concerning this possibility at their
conference on June 3. Under the circumstances , the respondent was not under
any legal duty to answer the Union 's letter dated June 5.
Accordingly , the undersigned is convinced and finds that the respondent did not
refuse to bargain collectively with the Union on May 27, 1946, and thereafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above , which have
been found to interfere with, restrain , and coerce employees of respondent in
the exercise of the rights guaranteed them in Section 7 of the Act, occurring in
connection with its operations as described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices , it will be recommended that it cease and desist therefrom , and take
certain action necessary to effectuate the policies of the Act.
It has been found that the respondent did not lay off or discharge any employees
because of their membership in or activities on behalf of the Union and that
the respondent did not refuse to bargain collectively with the Union. Accord-
ingly, it will be recommended that the complaint be dismissed in these respects.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. Hotel and Restaurant Employees Union, Local 146, A. F. of L. is a labor
organization within the meaning of Section 2 ( 5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
4. Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (3) and ( 5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of 'law, the
undersigned hereby recommends that the respondent, Chamberlain Corporation,
of Waterloo , Iowa, its officers, agents, successors , and assigns shall:
1. Cease and desist from :
(a) Interfering with, restraining , or coercing its employees in the exercise
of the rights to self-organization , to form, join, or assist Hotel and Restaurant
Employees Union, Local 146, A. F. of J., or any other labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
CHAMBERLAIN CORPORATION 1201
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post at their plant at Waterloo, Iowa, copies of the notice attached hereto
and marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Eighteenth Region, after being signed by the respond-
ent's representative, shall be posted immediately by the respondent upon the
receipt thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material;
(b) File with the Regional Director for the Eighteenth Region within ten
(10) days from the receipt of this Intermediate Report, a report in writing,
setting forth in detail the manner in which the respondent has complied with
the foregoing recommendations.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the allegations of the complaint that the
respondent violated Sections 8 (3) and (5) of the Act be dismissed.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
iiigton 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support. of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
wade as required by Section 203.65. As further provided in Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
JOHN H. EADIE,
Trial Examiner.
Dated December 2, 1946.
APPENDIX A
NoTicE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self -organization , to form labor
organizations , to join or assist HOTEL AND RESTAURANT EMPLOYEES UNION,
LOCAL 146 , A. F. OF L, or any other labor organization to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
All our employees are free to become or remain members of the above-named
union or any other labor organization.
CHAMBERLAIN CORPORATION,
Employer.
Dated ----------------------------- By --------------------------------
(Representative ) ( Title)
NOTE-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.