Chambers Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1959

124 N.L.R.B. 721 (N.L.R.B. 1959)

CHAMBERS MANUFACTURING CORPORATION 721
sters did not receive a majority of the votes cast in voting group (1)
and that Laundry Workers did receive a majority in the pool voting
groups, we shall certify the results of the election in voting group (1)
and shall certify Laundry Workers as the exclusive bargaining repre-
sentative of the employees in the combined voting groups, which we
find in the circumstances to constitute an appropriate unit for the
purposes of collective bargaining.
[The Board certified that a majority of valid ballots in voting
group (1) was not cast for Teamsters, Chauffeurs, Warehousemen &
Helpers, Local Union No. 891, and that this labor organization is not
the exclusive bargaining representative of employees of Independent
Linen Service Company of Mississippi.]
[The Board certified Laundry, Cleaning & Linen Workers Inter-
national Union, Local No. 218, Independent, as the collective-bargain-
ing representative of the employees of Independent Linen Service
Company of Mississippi in the pooled voting groups, found herein to
be an appropriate unit.]
Chambers Manufacturing Corporation and United Steelworkers
of America, AFL-CIO. Case No. 32-CA-599. August 06, 1959
DECISION AND ORDER
On January 9, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report finding that the Respondent had engaged in certain
unfair labor practices in violation of Section 8 (a) (1) and (5) of the
Act, and recommending that the Respondent cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
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 Intermedi-
ate 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 following modifications :
1. The Respondent contends that it was denied a fair hearing by rea-
son of certain pretrial rulings of a Trial Examiner, and that the com-
1 As the record , exceptions , and brief adequately present the issues and positions of the
parties herein, the Respondent 's request for oral argument is hereby denied.
124 NLRB No. 94.
525543-60-vol. 124-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint therefore should be dismissed. Specifically, it maintains that
the Trial Examiner erred (1) in denying its motion for a more definite
statement of certain allegations of the complaint upon which the Gen-
eral Counsel predicated his charges of Section 8 (a) (1) violations of
the Act; (2) in denying its motion for the pretrial production of cer-
tain statements for inspection and copying; and (3) in revoking
subpoenas deices teemn which were served on the Regional Director for
the Fifteenth Region and Field Examiner Burks requiring them to
produce all statements of certain named individuals, employees, and
former employees of the Respondent relating to the facts alleged in
the complaint. In addition the Respondent cites the failure of the
Regional Director to respond to written interrogatories filed with him.
These contentions are without merit. As to (1), we find that the coin-
plaint sufficiently informed the Respondent of the Section 8(a) (1)
allegations and the issues which would be considered at the hearing?
As to the remaining contentions, it is clear that the Act does not au-
thorize procedures in the nature of pretrial discoveries of evidence 3
For the foregoing reasons, we find that the Trial Examiner properly
denied the Respondent's motion to dismiss the complaint predicated
upon its alleged denial of a fair hearing.
The Respondent also excepts to the Trial Examiner's refusal to
strike the testimony of the General Counsel's witnesses, Emerson F.
Miller and Edward Earl Moorehead, because of the alleged failure of
the General Counsel to produce a longhand statement of Miller, and
an "authenticated'' statement of Moorehead. These requests were
made pursuant to Section 102.95 of Board Rules and Regulations,
Series 7, as amended. This section provides in substance, as an excep-
tion to the general prohibition against Board personnel testifying or
producing Board records before courts or administrative bodies, that
statements of witnesses who have testified for the General Counsel in
hearings on complaints under Section 10(c) of the Act must be pro-
duced on demand of the Respondent if such statement has been re-
duced to writing and signed or otherwise approved or adopted by the
witness. The section further provides that the Respondent's motion
to that effect must be granted by the Trial Examiner and the testimony
of the witness stricken if the General Counsel declines to furnish the
statement. We find no error in the Trial Examiner's ruling. It ap-
pears that Miller's statement was one that was taken in longhand by
Field Examiner Burks and in that form was signed or initialed by
Miller. At the hearing, the General Counsel stated for the record that
he had produced all of Miller's statements in his possession. Three
typewritten statements were produced-one signed by Miller on Octo-
2Lloyd A. Fry Roofing Company v. N.L.R.B., 222 F. 2d 938, 940 (C.A. 1).
3N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 751 (C.A. 9) ; Miam i Coca-Cola
Bottling Company, 108 NLRB 456 , footnote 2; Del E. Webb Construction Company,
95 NLRB 377, footnote 2.
CHAMBERS MANUFACTURING CORPORATION 723
her 2, 1957, and two others signed by him on November 19, 1957.
Miller further testified that the October 2 statement which he gave
to Field Examiner Burks conformed in all respects with the longhand
statement prepared by Burks and with the notes in Miller's possession.
As to Moorehead's statement, the record shows that Moorehead was
unable to identify the statement bearing his signature as the one taken
down in his presence by Burks, and was unable to remember whether
he had sworn to the truth of the matters contained in the affidavit.
However, Moorehead did not dispute the genuineness of his signature,
nor question the accuracy of the contents of the affidavit. In these
circumstances, we find that the General Counsel produced all docu-
ments which he had in his possession and which he was required to,
produce under the rules.4
The Respondent excepts to the Trial Examiner's ruling on the
General Counsel's objections which prevented the Respondent from-
questioning witnesses of the General Counsel about conversations with
Field Examiner Burks occurring before the witnesses signed their
formal affidavits. The Respondent contends that the purpose of such
questioning was to show that inconsistencies existed between the wit-
nesses' oral communications and their signed statements, and thus to
impeach the witnesses. Although the Respondent generally offered
to show that inconsistent statements were in fact made, the Respond-
ent does not disclose the nature of the alleged inconsistencies. Fur-
thermore, the record indicates that the Respondent was permitted by
the Trial Examiner to ask, and in the case of Thweatt did ask, the wit-
nesses whether their formal statements contained the substance of all.
conversations with the Field Examiner concerning matters to which
the witness had previously testified. As indicated above, the wit-
nesses ' formal statements were available to the Respondent for the
purpose of cross-examination. In such circumstances, we find that the
Trial Examiner's rulings were neither error, nor prejudicial.
2. The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Act by making unilateral changes in employ-
ees' wages , hours, and job classifications without granting the Union
an opportunity to negotiate with respect to such changes. We agree
with the Trial Examiner that the Respondent unlawfully made uni-
lateral changes in wages and hours in violation of the Act. However,
we do not agree that the record as it whole supports the allegation that
4 Furthermore , we find , contrary to the Respondent's contention, that it could not be
prejudiced by the alleged failure to produce the longhand statement of Miller's as no
unfair labor practice found herein rests on any testimony of Miller which is not con-
firmed in substance by the testimony of the Respondent ' s own witness Ryan.
we also find without merit the Respondent ' s contentions that it was denied an adequate
opportunity to cross-examine the witness Thweatt because of the General Counsel 's failure
to produce , pursuant to its demand , any memoranda prepared by Field Examiner Burks
of conversations between him and the witness, Thweatt. We find that the Respondent
was not entitled to the production of such memoranda and that the General Counsel
produced all the documents lie was required to produce under the rules.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent also made unilateral changes in "job classifications"
which were in violation of the Act.
The complaint alleges that in the months of March, April, June,
August, September, and October 1957 the Respondent made unilateral
changes in wages, hours, and job classifications of the employees in
the appropriate unit without prior consultation or bargaining with
the Union. In its answer, the Respondent admits the factual allega-
tions of the complaint but denies that the Respondent's conduct was
unlawful. The General Counsel offered no independent evidence to
support the above allegation of the complaint. The Respondent's
witness, George P. Ryan, who also served as the Respondent's attorney
and bargaining representative, testified that the Respondent granted
a specific merit increase in November 1956 after the Union had been
certified and another merit increase in March 1957. He also testified
that at some time prior to the hearing the Respondent supplied the
General Counsel with a list of all merit increases made by the Respond-
ent both prior to negotiations and throughout the year 1957. The
Respondent concedes that, in addition to the specific increases granted
in November 1956 and March 1957, the Board is entitled, on the basis
of the pleadings, to find that one such merit increase was granted in
April, one in June, one in August, one in September, and one in Octo-
ber. It is undisputed that these merit increases were given without
consultation with the Union. Accordingly, we find that the Respond-
ent made unilateral changes in the wages of its employees in disregard
of its obligation to bargain with the Union, and thereby violated Sec-
tion 8(a) (5) and (1) of the Act.-'
As to the question of unilateral changes in hours, the Respondent's
answer admitted the complaint's allegations that changes in hours
were also made during the period from March to October 1957. The
Act imposes upon an employer the obligation to bargain with the
exclusive representative of its employees with respect to "wages, hours,
and other terms and conditions of employment." Thus, the Respond-
ent's answer constitutes an admission that it failed to live up to the
Act's requirements in that regard. Although the Respondent suggests
in its brief that the unilateral changes in hours might have affected
only an occasional employee, or might have been caused by equipment
breakdown, or even by individual employee requests, it adduced no
such evidence, and there is nothing in the record to diminish the force
of its admission of conduct violative of the Act.
However, we find merit in the Respondent's contention that the
record does not support a finding that the Respondent failed in its
bargaining obligation with respect to "job classifications." Although
5 Bob Morgan Motor Company , Inc., 106 NLRB 334, 335; Herman Sausage Co., Inc.,
122 NLRB 168; Bonham Cotton Mills, Inc., 121 NLRB 12,15; Armstrong Cork Company
v. N.L.R.B., 211 F. 2d 843 , 847 (C.A. 5).
CHAMBERS MANUFACTURING CORPORATION 725
the Respondent's answer admitted the making of unilateral changes in
job classifications, the record is clear that the Respondent actually had
no fixed job classifications with fixed job contents. Moreover, the
evidence shows that, during the period of the alleged unilateral action,
it was customary for the Respondent, when the need arose, to shift
employees temporarily from their usual occupations to other work. It
is therefore difficult to infer from such evidence that the temporary
shifting of employees from one job to another represented a substantial
change either in job classifications or in job content so as to impose
upon the Respondent the obligation of bargaining with the Union with
respect to such changes. In view of the foregoing and the special cir-
cumstances here involved, we find that the General Counsel did not
sustain the burden of establishing by a preponderance of the evidence
that the Respondent made unilateral changes in alleged "job classifi-
cations" in violation of Section 8 (a) (5) of the Act.
We also find, in agreement with the Trial Examiner, that the Re-
spondent further violated Section 8(a) (5) and (1) of the Act by
refusing to meet with the Union upon its request on July 9 and 11,
1957. In so doing, we do not rely on the Trial Examiner's finding that,
at the time of the July 9 and 11 requests for bargaining, job classifi-
cations were more formalized, thus providing a new subject matter for
bargaining which had not previously existed. As the Respondent
points out in its brief, there is no evidence to support such a finding
of fact. However, we concur in the Trial Examiner's other reasons
for finding an unlawful refusal to bargain on those dates.
The Respondent contends that it cannot be found delinquent in its
bargaining obligation because the Union itself did not bargain in good
faith. In support of its position, the Respondent relies upon Miller's
threat to increase the Union's demand by 10 cents an hour at each
bargaining session until agreement was reached. We find no merit
in this contention. As found by the Trial Examiner, such conduct on
the part of the Union was a mere tactical maneuver in the Union's
effort to force the Respondent to raise its offer above the rate of $1 per
hour and was not a serious impediment to further negotiations. In-
deed, Ryan, an admitted expert in the field of collective-bargaining
negotiations, knew that the Union's wage demands were nothing more
than tactical maneuvers. For one thing, Ryan did not base his rejec-
tion of the Union's demand for further bargaining on July 9, 1957, on
the ground that it was Miller's declared purpose to increase the Union's
wage demands at each bargaining session. Furthermore, it is clear
that Ryan regarded the Union's original demand of $1.40 an hour as
something less than realistic, because, as he testified, he was certain
"neither side was going to jump forty cents an hour."
We further agree with the Trial Examiner that the Respondent
was under a continuing duty to bargain with the Union upon its
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request and that, by refusing to meet with the Union pursuant to
Miller's request on November 20, 1957, the Respondent violated Sec-
tion 8(a) (5) and (1) of the Act.
The Respondent contends, however, that the November refusal
occurred after the charge in the instant case was filed and served; that
no amended charge was thereafter filed; and that therefore the Board
is barred by the 6-month limitations in Section 10(b) in finding a
violation of the Act based upon the November refusal. We find no
merit in this contention. It is clear that the November refusal to
meet with the Union was conduct similar in nature to the Respond-
ent's earlier refusal to bargain with the Union on July 9 and 11. It
is well established that the Board is not barred from finding specific
acts of misconduct which are part of a pattern of continuing conduct,
although such acts may have occurred after a charge was filed.6
3. For the reasons set forth in the Intermediate Report, we agree
with the Trial Examiner that the Respondent independently violated
Section 8 (a) (1) of the Act.
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, Chambers Manu-
facturing Corporation, Oxford, Mississippi, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with regard to rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, with United Steelworkers of America, AFL-CIO, as the
exclusive bargaining representative of all its employees in the follow-
ing appropriate unit :
All production and maintenance employees in the Respondent's
plant in Oxford, Mississippi, excluding office clerical employees,
watchmen, guards, and supervisors as defined in the Act.
(b) Making unilateral changes in wages and hours, or other terms
and conditions of employment of its employees in the above-described
appropriate unit without consulting and bargaining with the above-
named Union in violation of the Act.
(c) Prohibiting, by threats of discharge or in any other manner,
employees from engaging in union activities during nonworking
time.
(d) Promising employees wage increases, transfers to other jobs,
or other benefits, for withdrawal of their union membership, and tell-
ing employees that they would have to withdraw their union member-
ship to accept a transfer to jobs excluded from the appropriate unit.
°N.L.R.B. v. Kohler Company, 220 F. 2d 3, 7 (C.A. 7) ; N.L.R.B. v. Anchor Rome
Mills, 228 F. 2d 775, 779 (C.A. 5).
CHAMBERS MANUFACTURING CORPORATION 727
(e) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist United Steelworkers of America, AFL-
-CIO, or any labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities
for the purpose of collective bargaining and other mutual aid or pro-
tection, 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, AFL-CIO, as the exclusive representative of the em-
ployees in the above-described unit with respect to rates of pay, wages,
hours of work, and other terms or conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its plant in Oxford, Mississippi, copies of the notice
attached hereto marked "Appendix."' Copies of the notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for a period of at least 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
Y 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 "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 National Labor
Relations Act, as amended, we hereby notify our employees that :
AVE WILL NOT prohibit, by threats of discharge or in any other
manner, our employees from engaging in union activities during
nonworking time.
Wn WILL NOT promise employees wage increases, transfers to
other jobs, or other benefits, for withdrawal of their union mem-
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership ; nor will we tell employees that they will have to with-
draw their union membership to accept a transfer to jobs excluded
from the appropriate unit.
WE WILL NOT make unilateral changes in the wages, hours, or
other terms and conditions of employment of employees in the
appropriate unit, without consulting and bargaining with United
Steelworkers of America, AFL-CIO, in violation of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the National Labor Relations Act.
WE WILL, upon request, bargain collectively with United Steel-
workers of America, AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described below with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody in a signed
agreement any understanding reached. The bargaining unit is :
All production and maintenance employees at our Ox-
ford, Mississippi, plant, excluding office clerical employees,
watchmen, guards, and supervisors as defined in the Act.
CHAMBERS MANUFACTURING CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Steelworkers of America , AFL-CIO, herein
called the Union , the General Counsel of the National Labor Relations Board, by
the Regional Director for the Fifteenth Region (New Orleans , Louisiana ), issued his
complaint , dated August 20, 1958, and amended on September 22, 1958, against
Chambers Manufacturing Corporation , herein called the Respondent . With respect
to the unfair labor practices , the complaint , as amended , alleges, in substance that:
(1) on or about October 30, 1956, the Board conducted an election in which the
Union was selected as bargaining representative by a majority of the employees in an
appropriate unit of production and maintenance employees , with specified exclusions,
CHAMBERS MANUFACTURING CORPORATION 729
at the Respondent's Oxford, Mississippi, plant; (2) on November 7, 1956, the
Regional Director certified the Union as the exclusive representative of all the em-
ployees in said appropriate unit; (3) Plant Manager Wheeler directed an employee
to withdrawn his membership from the Union in February 1957 and threatened to
discharge another employee in July 1957 for continued union or concerted activities;
(4) Supervisor Cecil Davis promised an employee a wage increase in March 1957,
conditioned upon his withdrawal of his union membership; (5) on or about January
22 and February 15, 1957, the Union requested the Respondent to furnish certain
wage and employee data, and that the Respondent has at all times failed and refused
to furnish such information and data; (6) during the months of March, April, June,
August, September, and October 1957, Respondent made unilateral changes in wages,
hours, and job classifications of employees in the appropriate unit; (7) on or about
July 9 and 11, 1957, the Union requested Respondent to bargain with it, and the
Respondent has refused and at all times thereafter has continued to refuse to bargain
with the Union as the exclusive representative of the employees in the appropriate
unit; and (8) by the foregoing conduct, the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
In its duly filed answer to the complaint as amended, Respondent (1) admits the
allegations pertaining to the Board's jurisdiction and the status of the Union as a labor
organization; (2) admits the appropriateness of the unit, that the Union was desig-
nated as collective-bargaining representative by a majority of the employees in said
unit in a Board-conducted election, and that the Regional Director certified the Union
on November 6, 1956, as the exclusive representative of all the employees in said
unit; (3) admits the allegations of fact that during the months of March, April, June,
August, September, and October, 1957, Respondent made unilateral changes in wages,
hours, and job classifications of employees in the appropriate unit but denies any
implication that such changes were improper or unlawful; and specifically denies all
remaining allegations in the complaint as amended or that Respondent engaged in
conduct violative of Section 8(a)(1) and (5) of the Act.
Pursuant to due notice, a hearing was held on October 7 to 9 and 21 to 22, 1958,
at Oxford, Mississippi. All parties were represented at the hearing and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to present oral argument at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. Subsequent to the
hearing, the Respondent filed a brief which I have fully considered.
Upon the entire record 1 in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation and a subsidiary of Chambers Corpora-
tion, which, in turn, is incorporated under the laws of the State of Indiana. The
Respondent operates a plant in Oxford, Mississippi, the only facility herein involved,
where it is engaged in the manufacture and sale of gas and electric ranges. During
the period from February 1 to July 31, 1956, which period is representative of all
times material herein, Respondent manufactured and sold at the Oxford, Mississippi,
plant finished products valued in excess of $300,000, approximately 98 percent of
which, in value, was sold, shipped, and delivered to points outside the State of
Mississippi.
Upon the above admitted fact, I find as Respondent concedes in its brief, that the
Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find, that United Steelworkers of
America, AFL-CIO, is a labor oragnization within the meaning of Section 2(5) of
the Act.
iI hereby note and correct the following inconsequential but obvious typographical
errors in the typewritten transcript of the testimony : On page 117, line 13, "$1.40" is
corrected to read "$1.00" ; on page 425, line 14, "December 1" Is corrected to read
"December 12"; on page 468, line 3, "if" is corrected to read "that"; on page 478,
line 2 , "a" is corrected to read "no" ; on page 520, line 6, the word "security" is to be
inserted after the word "union."
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and the Union's status as exclusive
bargaining representative therein
The complaint alleges, Respondent's answer and brief admit, and I find,
that all production and maintenance employees at Respondent's Oxford, Mississippi,
plant, but excluding office clerical employees, watchmen, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
In a Board-directed election conducted on October 30, 1956, the Union was
selected as bargaining representative by a majority of the employees in the said
appropriate unit. On November 7, 1956, the Union was accordingly certified as
the exclusive collective-bargaining representative of all the employees in the afore-
stated appropriate unit. I find that at all times since November 7, 1956, the Union
has been, and is, the exclusive representative of the employees in the aforestated
appropriate unit for the purpose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment within the meaning
of Section 9(a) of the Act.
2. The negotiations
Following an exchange of correspondence between the parties, the Union sub-
mitted to Respondent a proposed collective-bargaining agreement in advance of the
first meeting which was held on December 12, 1956. A second meeting was held
on January 21, 1957. Failing agreement, a third meeting was held on February 15,
1957, in the offices and under the auspices of a conciliator of the Federal Mediation
and Conciliation Service, without success. With respect to what transpired at these
meetings, Emerson F. Miller, the Union's staff representative, was the only witness
for the General Counsel, and George P. Ryan, Respondent's attorney from Indian-
apolis, Indiana, was the only witness for Respondent.
(a) The negotiating meetings of December 12, 1956, and January 21, 1957
These meetings were held in Oxford, Mississippi . The Union was represented by
Staff Representatives Miller and Shewmake and a three-man employee committee,
with Miller acting as the spokesman and negotiator. The Respondent was repre-
sented by Ryan, its attorney from Indianapolis, Indiana, with full power and author-
ity to negotiate a binding agreement. Respondent's local attorney, Will Hickman,
was also present at the second meeting as an observer. The Union's proposed agree-
ment, consisting of 20 pages and containing 23 articles with numerous sections and
subsections, was discussed at the first meeting, article by article and section by section.
At the second meeting, the parties discussed, article by article, the Respondent's
proposed agreement , consisting of 11 pages and 28 articles, which contained Re-
spondent's counterproposals and also embodied provisions agreed upon at the first
meeting. Each bargain session lasted the better part of a day.
The status of the negotiations at the end of the second meeting was as follows:
The Respondent had agreed to a number of the Union's proposals and the Union had
agreed to a number of Respondent's proposals. The Respondent had made counter-
proposals on some other items, some of which were acceptable to the Union and
others unacceptable. With respect to most of the money items, Respondent's posi-
tion, in general , was that it would not agree to any provision which would cost the
company money. The Union had requested $1.40 per hour for the base rate of pay.
The Respondent refused to offer more than its current rate of pay of $1 per hour,
the minimum required by the Fair Labor Standards Act, making it clear that it was
not pleading poverty but that there was a plentiful labor supply in the area at that
rate. The Union wanted double time for work in excess of 8 hours in any one day
and for work in excess of 40 hours in 1 week. Respondent would not agree
to. premium pay for work in excess of 8 hours in any one day and offered to
pay time and a half for work performed in excess of 40 hours in 1 week, which was
the requirement under the Fair Labor Standards Act. The Union wanted double
time for work performed on holidays and pay for unworked holidays. Respondent
offered only to pay time and a half for work actually performed on holidays. Re-
spondent's offer of 3 hours of reporting pay was unacceptable to the Union.
The main discussion centered around the base rate of pay. Ryan repeatedly made
it clear throughout the negotiations that the Respondent did not intend to offer more
than $1 per hour. On the other hand, Miller, on behalf of the Union, admittedly
CHAMBERS MANUFACTURING CORPORATION 731
made it clear that he would not agree to that rate, that he would not modify his
request of $1.40 per hour unless the Respondent offered more than $1 per hour, and
that there would be no agreement unless the Respondent raised its offer. At the close
of the second meeting, Ryan stated that unless the Union was prepared to modify
its wage demand, there was nothing to be gained by any further discussion . At that
point, Miller stated that he would modify his demand to $1.50 per hour and an
additional 10 cents per hour at each successive meeting. The meeting thereupon
broke up without any arrangement for further meetings.
Based upon the entire record considered as a whole, I am of the opinion and find
that the Respondent bargained in good faith at the two negotiating sessions and
that at the end of the second meeting the parties had reached a bona fide impasse
over wages .2 Ryan admitted that he felt that their differences as to the noneconomic
items of the contract were not of such character that they could not be ironed out.
(b) The meeting with the conciliator on February 15, 1957
As a result of the efforts of Mr. Rosenberry, a conciliator of the Federal Media-
tion and Conciliation Service, a third meeting of the parties took place in his office
in Memphis, Tennessee. Ryan testified that he attended this meeting on assurances
by Mr. Rosenberry that the Union had agreed to modify its wage demands. At this
meeting, Respondent was represented by Ryan; and the Union, by Miller and the
three-man employee committee.
Only Miller and Ryan testified with respect to what occurred at this meeting.
An examination of both versions discloses that the respective positions of the parties
on the wage issue remained the same.3 On the one side, Ryan made it clear that
the Respondent's proposal was still $1 per hour, that he did not intend to raise it,
and that there was no use in further discussions of any other items unless the Union
were to modify its wage demand. On the other side, Miller made it clear that
unless the Respondent raised its offer above the $1 per hour figure required by law,
he would not reduce his wage demands. There was no request for a discussion of
any other provisions of the proposed contracts, and none was had. Mr. Rosenberry
then had a brief conference with each group separately; the respective positions
of the parties remained unaltered.
The meeting, which had lasted less than a half hour, ended with Mr. Rosenberry
taking a copy of the contracts proposed by the Union and the Respondent, and ad-
vising the parties that he would study the contracts and try to arrange another
meeting. No further meetings were arranged or held.
It is clear, and I find, that the impasse on wages, which existed at the end of the
second meeting , remained unbroken at this meeting. I accordingly find that there
was no unlawful refusal to bargain at this meeting.
3. The Respondent 's unlawful conduct
The complaint alleges, and the General Counsel contends , that the Respondent
violated the Act by its conduct ( a) in refusing to furnish to the Union , upon request,
certain wage and employee data; (b) in making unilateral changes in wages, hours,
and job classifications of employees in the appropriate unit; and .(c) in refusing to
meet and bargain with the Union , upon request , with respect to wages, hours, and
other conditions of employment.
(a) The alleged refusal to furnish requested data
Miller testified that in each of the meetings hereinabove discussed, as well as in
a telephone conversation on July 9, 1957, discussed infra, he requested Ryan to
furnish a list of the employees, with their classification, seriority, wage rate, and the
number of hours spent at different jobs; that he had emphasized the necessity for
such data to enable Miller to determine whether and to what extent he could modify
his wage demands; and that Ryan at all times refused to furnish the requested data,
stating that the Respondent was not pleading poverty and would not open its books
2 Miller's testimony (denied by Ryan) concerning Ryan's alleged refusal, upon request,
to furnish certain wage and employee data, and concerning Ryan's alleged statements at
the second meeting that Respondent's proposed contract was a package deal which could
not be considered or negotiated piece meal, is not credited far the reasons discussed in
section III A 3(a), infra.
9 Miller's testimony (denied by Ryan) that he again requested, and was refused, certain
wage and employee data to aid him in formulating a different wage proposal, is not
credited for the reasons discussed in section III A 3(a), infra.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and records to the Union. Ryan, on the other hand, categorically denied that any
such requests were ever made. He further testified that he had been specializing for
a number of years in representing employers in labor relations matters, that he was
well aware of the fact that the alleged requested data has been held to be relevant
to negotiations, and that he therefore would have furnished such information and
data if in fact they had been requested.
Miller admittedly was an experienced union negotiator of many years standing.
Yet, he made no written requests for the alleged data and his contemporaneous
notes of the negotiations make no mention of such requests. Nor did he make any
mention of such requests in his narrative description of the negotiations in his
pretrial affidavits to a field investigator of the Board. Moreover, his pretrial affidavit
of October 2, 1957, admittedly failed to mention the respects in which, according to
Miller's own testimony, the parties were in agreement, and, indeed, contained state-
ments as to Respondent's position on many items which were directly contrary
to Miller's testimony. When these matters were called to Miller's attention on
cross-examination, he sought to explain the omission or contradiction by testifying
that at the time he made the affidavit he had forgotten about these matters or did
not think that they were important to substantiate the Union's charge. Moreover,
although it appears from Millers' testimony that Ryan's reply was not responsive,
Miller admittedly made no comment to Ryan on his unresponsive answer. Finally,
although Union Representative Shewmake was present at the first two meetings, and
a three-man employee committee was present at all three meetings,4 the General
Counsel did not call any other witness to corroborate Miller's testimony.
Under all the circumstances, and upon consideration of the entire record, including
the demeanor of the witnesses, I will credit Miller's testimony only where it is un-
denied and is not inconsistent with that of Ryan, and will discredit Miller's testimony
wherever it conflicts with that of Ryan. I find, in accordance with Ryan's testimony,
that Miller did not at any time request Ryan to furnish the alleged data and that
therefore Ryan never refused to furnish same.
(b) Unilateral changes in wages, hours, and job classifications
The complaint alleges that during the months of March, April, June, August,
September, and October, 1957, the Respondent made unilateral changes in wages,
hours, and job classifications of employees in the appropriate unit. The Respond-
ent's answer admits this allegation but denies that such changes were improper or
unlawful. The General Counsel adduced no evidence with respect to the nature or
type of unilateral changes, relying on the fact that said allegation was admitted in
the Respondent's answer. The Respondent also adduced no evidence bearing on
the nature or type of unilateral changes it admittedly made during the periods alleged
in the complaint. The Respondent contends in its brief that "whether or not unlaw-
ful or improper changes were made is a matter of evidence" and that the General
Counsel has failed to sustain his burden of proof in this respect.
In view of the Respondent's admission in its answer, there was no need for the
General Counsel to adduce evidence to prove that Respondent did in fact make
unilateral changes in the wages, hours, and job classifications of the employees in
the bargaining unit during the months set forth in the complaint. The record shows
that such changes were made without prior consultation with, or notice to, the
Union which was still the exclusive bargaining representative of said employees .5
And such unilateral changes continued to be made despite Miller's protest to Ryan in
a telephone conversation on July 9, discussed infra, that he had heard that some
employees had been given wage increases, and despite Respondent's unlawful refusal
to bargain on July 9 and 11, 1957, as hereinafter found.
It is well settled that an employer may lawfully take unilateral action with respect
to the terms and conditions of employment as to which a bona fide impasse had
previously been reached in negotiations, provided that the unilateral changes do not
exceed that which the employer had offered the Union in the negotiations. Respond-
ent's unilateral action in this case did not meet this test.
Taking the position most favorable to the Respondent, I will assume that the wage
changes were merit increases to individual employees. Respondent's base rate of pay
at the time of the negotiations was $1 per hour, the rate which it offered to the Union
and which was the minimum required by law. Any merit increase would therefore
4 Respondent's local counsel was present only at the meeting of January 21, 1957.
5 The only time the Respondent got in touch with the Union after the meeting of
February 15, was on July 9, 1957, when Ryan returned Miller's long-distance call and
refused the Union's request for a further meeting. See discussion infra.
CHAMBERS MANUFACTURING CORPORATION 733
increase the individual 's wage above the $ 1 per hour rate . The Union 's proposed
contract , which was discussed at the meeting of December 12, 1956, contained no
provision for merit increases and consequently there was no discussion at that time
on this project. The Respondent's proposed contract, which was discussed only at
the meeting of January 21, 1957, contained a proposal with respect to merit increases
which is set forth below .6 This proposal embodied the Respondent's then cur-
rent practice , which was in effect prior to the commencement of negotiations, but
did not specify the amount of the merit increases which was usually 5 or 10 cents
per hour.
After this provision was read at the meeting of January 21, 1957, Miller asked if
the Respondent had a formalized merit increase plan. Ryan replied that they had
nothing in writing; that the plan that was being followed was to review the perform-
ance of the employees every so often and, if an employee showed improvement in
his performance or had been assigned additional responsibilities and his superiors
recommended a merit increase on either factor , the employee would be given an
increase . Miller objected to the unilateral control over merit increases which the
provision lodged in management and to the fact that it did not permit an employer
to process his grievance through arbitration, the final step provided in the grievance
procedure. Ryan replied that he felt certain that any abuse of discretion could be
worked out in the preliminary steps of the grievance procedure. The parties then
passed on to a discussion of the next provision in Respondent's proposed contract.
Ryan admitted that he never made any proposal to the Union as to the specific
amount of the merit increases, which at that time was usually 5 to 10 cents per hour.
A consideration of the entire record convinces me, and I find, that no impasse.
had been reached at that time with respect to the method of granting merit increases.
The proposal was explained ; each side stated its respective position ; and the parties
passed on to discuss other provisions without having reached agreement on this one.
The Union had no further opportunity thereafter to discuss this provision of the
contract. Moreover, even if, contrary to my finding, a bona fide impasse had been
reached in this respect , Respondent 's unilateral grant of merit increases, without
advising the Union thereof, went further than the Respondent's proposal in which
Respondent specifically agreed to advise the Union immediately when any merit
increase was put into effect.
The record also shows, and I find, that no impasse had been reached with respect
to hours of work or the work classification of employees. Indeed, Ryan testified
that in connection with the discussion of wages at the meeting of January 21, 1957,
Miller had asked about the job classifications; and that Ryan replied that they did
not have any formal job classifications at that time because production was still in
a formative stage, and that many employees were moved around from job to job
and paid the same rate of $1 per hour.
In view of the foregoing, I find that the Respondent was under a duty to consult
with, and notify, the Union as the exclusive bargaining representative of the em-
ployees before making changes in the wages, hours, and job classifications of any
of the employees in the appropriate unit, and to grant the Union the opportunity
to negotiate on the impact of such changes . I further find that the Respondent's
failure to fulfill that duty violated Section 8(a) (5) and (1) of the Act.7
8 The second and third paragraphs of article VIII are as follows :
The performance of each employee shall be reviewed at least once each six (6) months
during the life of this contract without prejudice to the Company's right to make more
frequent reviews in its discretion. If, in the Company's judgment, such review dis-
closes that the employee's performance has improved, the Company will grant merit
increases in accordance with the improvement shown. The Company agree to advise
the Union immediately when any merit increase is placed into effect.
Complaints that the Company has abused its discretion in connection with grant-
ing, or refusing to grant, merit increases may be presented as a grievance through
the grievance procedure provided in the contract. Such complaints, however, shall
not be subject to arbitration.
7 See, e.g., Bob Morgan Motor Company, Inc., 106 NLRB 334, 335; Herman Sausage
Co., Inc., 122 NLRB 168; Bonham Cotton Mills, Inc., 121 NLRB 1235. White's Uvalde
Mines v. N.L.I?.B., 255 F. 2d 564 and 574 (C.A. 5), relied on by Respondent, turned on
its own facts and is distinguishable on the ground, among others, that, unlike in the
instant case, the merit increases "had all accrued before bargaining sessions commenced."
Indeed, on petition for rehearing (255 F. 2d 574), the court specifically recognized the
principle that an employer may not grant individual merit increases without first negotiat-
ing with the statutory bargaining representative.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusals to bargain, upon request
After several efforts to contact Ryan by telephone, Miller finally succeeded in
having a long-distance telephone conversation with Ryan on July 9, 1957. Miller
stated that he wanted to have another meeting to negotiate any part of the contract,
whether the issues involved be economic or noneconomic, and that he wanted to
find some ground on which to negotiate. Ryan replied that Respondent's position
remained the same as before and therefore he first wanted an assurance that the
Union was willing to modify its wage demands in the area of the Respondent's wage
proposal of $1 per hour before he would agree to have another meeting. Miller
refused to give any such assurance. During the conversation, Miller stated that he
had heard that some employees had received wage increases. Ryan replied that he
did not believe it. The conversation ended with Ryan refusing to agree to another
meeting.8
On July 11, 1957, the Respondent received from Miller a telegram, containing
the Union's request that the Respondent meet "for the purpose of negotiating a
contract on hours of work, wages, and conditions of employment." This telegram
admittedly was forwarded to Ryan, Respondent's counsel. There admittedly was
no reply to this telegram.
On November 20, 1957, Miller called Ryan by telephone, long distance, and
wanted to know if they could have another meeting and attempt to reach an agree-
ment on the contract. Ryan admittedly replied that in view of the Union's position
as to filing another petition for an election, the company had substantial doubts as
to the Union's majority status and therefore the Respondent would not meet with
the Union until its majority status was established by an appropriate Board
proceeding.
The Respondent contends in its brief that there was no unlawful refusal to bargain
on July 9 and 11 because, the Respondent argues, an impasse continued to exist in
view of the respective positions on the wage issue; that is, Ryan's adherence to
his proposal of $1 an hour, and Miller's unwillingness to give any assurance that
the Union would modify its demand in the area of Respondent's proposal. I do
not agree.
There had only been two meetings, the last one on January 21, 1957, in which
the provisions of a proposed contract had been discussed item by item. Six months
had elapsed since the last meeting, and 5 months had elapsed since the meeting in
the conciliator's office where the parties remained deadlocked on the wage issue.
In addition to the money items, a number of noneconomic items, as to which
there had been no impasse, still remained unresolved. These included, among others,
the wording of the management clause, a part of the seniority clause, a part of
the grievance procedure, and the mechanics and procedure for granting, and grieving
about, merit increases. Miller wanted a meeting to negotiate such issues as well
as the money items in an effort to reach some area of agreement on an entire con-
tract. The "Act clearly requires an employer to bargain on all matters involving
the employees' terms and conditions of employment" and the fact that the parties
had reached an impasse on wages 5 months earlier, constitutes no "defense to a
refusal to bargain with respect to other matters which the Union requested be
considered." 9 Indeed, Ryan admitted that he felt that their differences on the
noneconomic items of the contract were not of such character that they could not
be ironed out. The fact that in the telephone conversation of July 9, Miller was
unwilling to give any assurance that he would modify his wage demand in the area
of Ryan's proposal, is not, under all the circumstances, conclusive. In the previous
meetings Miller had indicated a willingness to modify his wage demand if Ryan
would make some offer above the $1 an hour figure required by law. Ryan was
at all times just as adamant in refusing to give any assurance that he would increase
his wage offer above $1 an hour. Yet, on cross-examination, Ryan admitted the
s The findings with respect to the telephone conversation are based on Miller ' s testi-
mony wherever it is undisputed and not inconsistent with that of Ryan , and on Ryan's
testimony wherever it conflicts with that of Miller . Thus, Ryan did not deny that
Iitiller ' s request was for a meeting to negotiate any part of the contract , whether economic
or noneconomic issues were involved ; nor did he deny Miller 's testimony concerning wage
`increases received by employees . Ryan merely testified that "at no time during the nego-
tiations did Miller mention the subject of wage increases made by Respondent." [Em-
phasis supplied .] Moreover , Miller ' s testimony in this respect is consistent with the fact
that some employees had received wage increases during the period from March to July 9.
o Pool Manufacturing Company, 70 NLRB 540, 549.
CHAMBERS MANUFACTURING CORPORATION 735
"possibility of our reaching an agreement" on a rate above the $1 figure through
the process of collective bargaining, explaining that "in order to conclude a collec-
tive bargaining agreement the Company has to pay more than it wants to pay, and
the Union has to take less than it wants to get." Thus, it does not follow that a
resumption of discussion on other matters, particularly noneconomic items, might
not have led the parties to eventual settlement of the entire disagreement between
them. There was always the possibility that either the Respondent or the Union
might retreat from its seemingly inflexible position on the wage issue because of
concessions given or taken on the noneconomic or other items. The fruition of
this possibility into an actuality may not be foreclosed by the Respondent's refusal
to meet with the Union. "It is elementary that collective bargaining is most effec-
tively carried out by personal meetings and conferences of the parties at the bar-
gaining table." to
Indeed, the more lapse of time had created the occasion appropriate for collective
bargaining even on some of :the money items. Thus, with respect to the Union's
proposal for paid vacations, discussed at the first meeting on December 12, 1956,
Ryan took the position that Respondent would not grant paid vacations for the
year 1957 because the plant had not yet gotten under full production and the
employees were relatively new and inexperienced. There was no discussion of
paid vacations at the second meeting of January 21, 1957, because Respondent's
proposed contract contained no provision to that effect. Thus, in July 1957, the
opportunity to discuss paid vacations for the year 1958, or at least for that part
of the year which would be covered by any contract finally executed, arose for the
first time. Ryan's admission that Respondent did in fact give paid vacations to the
employees in 1958 strongly indicates eventual success in reaching agreement on this
item. Also, in July 1957 the work classifications, which obviously bear a direct
and important relationship to the wage scale, were more formalized and the jobs
of the employees more stable, thus opening up further areas for bargaining. As
previously pointed out, and particularly in view of Ryan's admission of the possi-
bility of agreement being reached on a rate above the $1 per hour offered by
Respondent, there is no telling to what extent the Union and/or the Respondent
may have been willing to modify their position on wages in the light of having
reached satisfactory agreement on this and perhaps other issues. The appropriate
testing ground is at the bargaining table.
Moreover, as previously found, during the months of March, April, and June,
1957, Respondent unlawfully made unilateral changes in wages, hours, and job
classifications of employees, without notification to, or consultation with, the Union.
Such unilateral changes continued to be made during the months of August, Sep-
tember, and October, after the Respondent had refused the Union's request for a
further meeting. The Union was therefore entitled to an opportunity to negotiate
on the impact of such changes as had been put into effect and were intended in the
future. The opening which such changes make for the correction of existing in-
equities among employees and for the possible substitution of other items in lieu
of part of the proposed changes, suggests a number of opportunities for bargaining.
Thus, even apart from any other considerations, Respondent's own conduct alone
had created the occasion appropriate for collective bargaining."
Upon consideration of the entire record considered as a whole, I find that Re-
spondent's refusal to meet with the Union for collective-bargaining purposes, upon
the latter's request on July 9 and 11, 1957, constituted a refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
The Respondent's refusal to meet with the Union, upon the latter's request on
November 20, 1957, is based on an alleged good-faith doubt as to the Union's con-
tinued status as the majority representative of the employees in the appropriate unit.
However, it is well settled that any possible numerical loss of majority representation
must be attributable, as I find, to Respondent's prior unlawful refusals to bargain.
Under these circumstances, the Union's status as exclusive bargaining representative
continued as a matter of law and the defense of good-faith doubt of majority is
not available to :the Respondent.12 Accordingly, I find that Respondent's refusal
to meet with the Union for collective-bargaining purposes, upon the latter's request
on November 20, 1957, constituted a further refusal to bargain in violation of
Section 8 (a) (5) and (1) of the Act.
10 United States Cold Storage Corporation, 96 NLRB 1108, enfd. 203 F. 2d 924
(C.A. 5), cert. denied 3'46 U.S. 8118.
11 Cf., e.g., N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224.
"Franks Bros. Company v. N.L.R.B., 321 U.S. 702.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Respondent's alternative defenses
Respondent contends in its brief that "assuming for the sake of the argument that
the Employer had refused to bargain on July 9-11, the Union had previously violated
the Act in the same regard." This contention is based on Miller's conduct (1) in
initially asking for a $1.40 hourly wage rate, which constituted an increase of 40
percent, and, at the end of the second meeting, increasing that demand to $1.50
per hour with the statement that it would be raised 10 cents at each subsequent
meeting; and (2) in allegedly attempting to go behind Ryan's back to deal directly
with the Employer. Respondent argues that such conduct constituted bad-faith
negotiating on the part of Miller and that Respondent therefore cannot be found
to have violated the Act.
The record clearly shows that Miller's conduct in raising his wage demand to
$1.50 per hour with the statement that it would be increased 10 cents per hour at
each subsequent meeting, was merely a tactical bargaining maneuver employed
in an effort to force the Respondent to raise its offer above the then current rate
of $1 per hour, the minimum required by law. Nor does the record support the
Respondent's contention that Miller was attempting to deal directly with the Em-
ployer behind Ryan's back. I find no merit in Respondent's alternative defenses.
(e) Interference, restraint, and coercion
In addition to the unilateral action found to be violative of Section 8(a)(1) as
well as Section 8(a)(5) of the Act, the complaint alleges further specific violations
of Section 8(a)(1). The factual findings with respect to these alleged violations
are based on the credible and undenied testimony of employees Rhoma Thweatt and
Edward Moorehead.
In February 1957, Plant Superintendent Wheeler told Thweatt, who was at that
time employed as a janitor, that he would like him to take the job of watchman.
When Thweatt agreed, Wheeler stated that Thweatt would have to get out of the
Union in order to take the watchman's job, that neither the Company nor the Union
allowed the watchman to be in the Union, and that Thweatt would have to get his
union card and turn it in to the Company's office. About a week later Wheeler
again spoke to Thweatt, while the latter was sweeping near Wheeler's office. Wheeler
asked Thweatt if he had gotten his union card, and Thweatt replied that he had not.
Although he made an effort to do so, Thweatt did not get his card back.
In July 1957, while occupying the position of watchman, Thweatt went to
Superintendent Wheeler's office to get his check. On this occasion, Wheeler stated
that he had heard that Thweatt was organizing for the Union "on the job and off";
warned that he would not tolerate it; and threatened to fire Thweatt if Wheeler
caught him "first hand." With respect to the threat of discharge, Thweatt testified
on cross-examination that Wheeler threatened to "fire me if he caught me first-hand
organizing on the job or off." Thweatt denied to Wheeler that he did any organizing
and stated that he believed Wheeler had been misinformed.
On March 21, 1957, Chief Engineer Cecil Davis spoke to employee Moorehead
in the toolroom about the latter's prior request for a raise. Moorehead was per-
forming toolroom work at that time. Davis stated that the Union and the Company
had reached a statemate which made it hard for men like Moorehead, who deserved
a raise, to get one. Davis then stated that Moorehead could get released or with-
draw his card from the Union, and then "we can transfer you to engineering and
give you a raise." Moorehead agreed to do so and asked Davis how to go about
getting his card back. Davis suggested that Moorehead "go to one of the Union
boys and ask for a withdrawal card from the Union."
A few days later, Davis again spoke to Moorehead, while the latter was working
in the toolroom. Davis said that since they were sure that Moorehead would do
what he had promised, they had not waited for Moorehead to get his withdrawal
card from the Union but had gone ahead and transferred him to engineering and
given him a raise of 15 cents per hour. During the first week in which his raise
and transfer were effective, Moorehead's duties were substantially the same. There-
fore, he gradually did more experimental work.
Moorehead testified that he was under the impression that employees in the
engineering department were not in the appropriate unit and were not represented
by the Union. Moorehead never did get a withdrawal card from the Union.
Concluding Findings
The parties stipulated that Wheeler and Davis were supervisors within the meaning
of the Act during the times material to the complaint.
CHAMBERS MANUFACTURING CORPORATION 737
As the classifications of watchmen and guards were excluded from the appro-
priate unit, Thweatt would not be represented by the Union upon being transferred
to such a position. However, whether he be considered a watchman or a guard,
he still had the right guaranteed by Section 7 of the Act to continue to be a member
of the Union. Superintendent Wheeler's statement that he would have to get his
card back from the Union and turn it in to the Company's office if he were to
transfer to the job of watchman, obviously constituted interference, restraint, and
coercion in the exercise of that right. That Wheeler had an erroneous understand-
ing of the law in this respect, confusing unit with the Union, is of course no defense.
Whether Wheeler's prohibition against Thweatt engaging in union activities, on
penalty of discharge, was directed to "on the job and off" or to "on the job or off,"
the result is the same. In either event, and even assuming the existence of a rule
prohibiting union activity during working time, the prohibition was broad enough
to include Thweatt's nonworking time on the Respondent's premises and, hence, to
that extent deprived him of rights guaranteed by Section 7 of the Act.13
Finally, Chief Engineer Davis' promise to grant Moorehead a raise if he would
transfer to the engineering department and coincident therewith withdraw his mem-
bership from the Union obviously constitutes interference, restraint, and coercion
proscribed by Section 7 and 8 (a) (1) of the Act. Contrary to Respondent's conten-
tions, the engineering department is not excluded from the bargaining unit and,
even if it were, the result would be the same as in the case of Thweatt.
I find that by the foregoing conduct of Superintendent Wheeler and Chief Engineer
Davis, the Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act and thereby violated Section
8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent refused to bargain with the Union at all times
on and after July 9, 1957, in violation of Section 8(a) (5) and (1) of the Act, I will
recommend that Respondent be ordered to bargain with the Union, upon request,
as the exclusive representative of its employees in the appropriate unit concerning
rates of pay, wages, hours, and other terms and conditions of employment, and
if an understanding is reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees at Respondent's Oxford, Mississippi,
plant, but excluding office clerical employees, watchmen, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. United Steelworkers of America, AFL-CIO, has been at all times since No-
vember 7, 1956, and is, the exclusive representative of all the employees in the
aforestated appropriate unit for purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
3. By making unilateral changes in the wages, hours, and job classifications of
employees in the appropriate unit during the months of March, April, June, August,
September, and October, 1957, and by refusing on July 9, 11, and November 20,
.1957, to bargain with the above-named Union as the exclusive representative of
the employees in the aforestated appropriate unit, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of
the Act.
v Limestone Manufacturing Company, 117 NLRB 1689 , 1701, and cases cited therein.
525543-60-vol. 124-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By the foregoing conduct, by telling an employee he would have to withdraw
his membership from the Union if he were to transfer to a watchman's job, by
prohibiting, on penalty of discharge, an employee from engaging in union activities
on Respondent's premises during nonworking time, and by promising an employee a
raise if he would transfer to the engineering department and withdraw his member-
ship from the Union, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in, unfair labor practices within the meaning of
Section 8 (a)( I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Paperhandlers' & Straighteners' Union No. 1, International
Printing Pressmen & Assistants ' Union, AFL-CIO and News
Syndicate Co., Inc . Case No. 2-CD-168. August 27, 1959
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF CASE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that, "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D) of
.Section 8(b), the Board is empowered and directed to hear and de-
termine the dispute out of which such unfair labor practice shall have
arisen. ..."
On August 20, 1958, News Syndicate Co., Inc., herein called the
News, filed with the Regional Director for the Second Region a charge
alleging that Paperhandlers' & Straighteners' Union No. 1, Interna-
tional Printing Pressmen & Assistants' Union, AFL-CIO, herein
called the Paperhandlers, had engaged in, and was engaging in, cer-
tain unfair labor practices within the meaning of Section 8 (b) (4) (D)
of the Act. It was charged, in substance, that Paperhandlers had
induced and encouraged employees of the News to engage in a strike
,or concerted refusal to work with the object of forcing or requiring the
News to assign certain work to employees who were members of the
Paperhandlers rather than to other employees, who were represented
by Truck Drivers Union Local No. 807, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
herein called Teamsters.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.79 and 102.80 of Board Rules and Regulations, Series 7, the Re-
gional Director investigated the charge and provided for a hearing
upon due notice to all of the parties. The hearing was held before
I. L. Broadwin, hearing officer, on September 17 and November 20,
1958. All parties appeared at the hearing and were afforded full
124 NLRB No. 92.