Currie Machinery Co.

National Labor Relations Board - Board Decisions

Dec 11, 1964

149 N.L.R.B. 1584 (N.L.R.B. 1964)

1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the National =
Labor Relations Act, except to the extent that those rights may be affected by
an agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the aforesaid Act.
WE WILL offer to Fred Crawford and Michael Crawford immediate and full
reinstatement to their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a result of the discrimination
against them.
MORRISON-KNUDSEN COMPANY, INC. AND HAWAIIAN DREDGING
AND CONSTRUCTION COMPANY, A DIVISION OF DILLINGHAM
CORPORATION, A JOINT VENTURE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and-must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Subregional Office, 680 Ala
Moana Boulevard, Honolulu, Hawaii, Telephone No. 58831, Extension 408.
Currie Machinery Company and International Association of
Machinists , AFL-CIO, District Lodge No. 93 . Case No. 20-CA-
2785. December 11, 1964
DECISION AND ORDER
On August 12, 1964, Trial Examiner George L.- Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 his Decision attached hereto. There-
after, the Respondent filed exceptions to his Decision and a support-
ing brief, and the General Counsel filed a brief in answer thereto and
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, as
amended, the Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins]. .
The Board has reviewed the rulings 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 Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
149 NLRB No. 133.
CURRIE MACHINERY COMPANY 1585
and recommendations of the Trial Examiner, with the additions and
modifications noted below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifications:
Paragraph 1(e) is changed to read:
"In any other manner intefering with, restraining, or coercing
employees in the exercise of their rights under Section 7 of the Act." 2
Substitute the attached Appendix in place of the Appendix
attached to the Trial Examiner's Decision.
Under the Board ' s established policy not to overrule a Trial Examiner's credibility
findings unless a clear preponderance of all the relevant evidence convinces us that they
were incorrect , we find no basis for disturbing the credibility findings made by the Trial
Examiner in this case. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d
362 (CA. 3)
The Trial Examiner credited Hopper's testimony that on July 11, 1963 , Respondent
Vice President and Plant Superintendent Wally Currie told Hopper that employees
Garrison , Blatt, Hudson , and Hopper had been laid off primarily because of the Union
and that the Respondent had gotten rid of all the union voters; that all the employees
remaining were those who had voted for the Company in the Board election ; and that
wage increases had been granted and Respondent "was not going to sign a contract for
a year and that way [Respondent ] wouldn ' t have to be in the Union ." The Trial Ex-
aminer found that this credited testimony shows the union animus of Respondent and is
also an admission by Respondent that Blatt, Hudson, Carlton , Powers , and Glenzer had
been discriminatorily laid off, or, in the case of Glenzer , had discriminatorily not been
recalled We find further that this credited testimony also constitutes an admission by
Respondent that Garrison and Hopper , the alleged discriminatees herein, were discrimina-
torily laid oft, and that Respondent did not bargain in good faith with the Union
As the discriminatory layoffs found herein go to the very heart of the Act, we shall,
unlike the Trial Examiner , enter a broad order against the Respondent to cease and de-
sist from in any manner interfering with , restraining , or coercing its employees in the
exercise of the rights guaranteed them under Section 7 of the Act N L R B v Entwistle
Mfg. Co, 120 F 2d 532 (CA. 4), enfg. as modified 23 NLRB 1058 The Respondent's
additional violations of Section 8(a) (5) and ( 1) also support such an order.
z A counterpart paragraph shall be substituted in the notice which is to be posted by
the Respondent.
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:
WE wILL offer G. W. Hopper and Jack Garrison their former
jobs and pay them for wages they lost as a result of our having
discriminatorily laid them off for their union activities.
770-076-65-vol. 149-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AVE WILL NOT discharge or o therwise discriminate against any
employee for engaging in activity on behalf of International
Association of Machinists , AFL-CIO, District Lodge No. 93, or
for engaging in any other union or concert ed activity for mutual
aid or protection of employees.
EVE WILL NOT question our employees with respect to their
union desires and activities in a manner constituting interference,
restraint , or coercion within the meaning of Section 8(a) (1) of
the Act.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in their right to form, join , or assist any
labor organization or engage in any concerted activity or to
refrain from such union or concerted activity.
IVE WILL bargain in good faith, on request , with the Interna-
tional Association of Machinists, AFL-CIO, District Lodge No.
93, as the duly certified collective-bargaining representative of a
majority of our employees in a unit of our production and main-
tenance employees , and, if agreement is reached , will embody it
in a contract and sign it.
EVE WILL NOT unilaterally change the wages, hours , terms, and
conditions of employment of our employees.
All our employees are free to become or to remain members of
International Association of Machinists, AFL-CIO, District Lodge
No. 93, or any other labor organization , or to refrain from such
membership except to the extent that this right may be affected by an
agreement authorized by Section 8(a) (3) of the Act, as amended.
GuErziE MACHINERY COMPANY,
Employer.
Dated------ ---------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify the above -named employees if presently
serving in the Armed Forces of the United States of their right to,
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act
of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting , and must not be altered , defaced or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office, 13050 Federal Building , 450 Golden Gate Avenue, Box 36047,
San Francisco, California , Telephone No. 556-3197, if they have any
questions concerning this notice or compliance with its provisions.
CURRIE MACHINERY COMPANY 1587
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner George L. Powell at San Francisco, Cali,
fornia, on December 12, 13, and 16, 1963, pursuant to a charge led on July 23, 19631
by the Charging Party,' complaints by the General Counsel dated October 22 and
November 1, 1963, and answers led by Respondent 2 dated November 12, 1963, pre,
sents two issues: Whether Respondent discriminated against two employees in regard
to their tenure of employment in violation of Section 8 (a) (1) and (3) of the Act;
and whether Respondent refused to bargain in good faith within the meaning of
Section 8(a)(5) of the Act3 Respondent denied the allegations. Briefs were filed
by the Respondent and the General Counsel on February 5 and 3, 1964, respectively.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses 4 appearing before me,
I make the following:
i International Association of Machinists, AFL-CIO, District Lodge No. 93, herein
called Machinists or the Union.
2 Currie Machinery Company.
3 Relevant sections lead as follows:
SEC. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collecti'v
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiimg membership in a laboi organization as a condi-
tion of employment as authorized in section 8(a)(3)
fi * * * * * *
SEC. 8 (a) It shall be an unfair labor practice for an employer-
(1) to inteifeic with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization Provided, That nothing In this Act, or in any other statute of the
United States, shall preclude an employer from making an agreement with a
labor organization (not established, maintained, or assisted by any action de-
fined in section S(a) of this Act as an unfair labor practice) to require as a
condition of employment membership therein on or after the thirtieth day follow-
ing the beginning of such employment or the effective date of such agreement,
whichever is the later, (i) if such labor organization is the representative of the
employees as provided in section 9(a), in the appropriate collective-bargaining
unit covered by such agreement when made . . .
* * * * * *
(5) to refuse to bargain collectively with the representatives of his employees,
subject to the provisions of section 9(a)
(d) For the pmposes of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an agreement, or any
question arising thereunder, and the execution of a written contract incorporating
any agreement reached if requested by either party, but such obligation does not
compel either party to agree to a proposal or require the making of a concession . . .
4 The declaration that my findings are based on my observation of the witnesses is in-
tended to apply to the testimony of each and every witness, and my failure to comment
on the demeanor of a particular witness is not to be taken to mean that in evaluating
his testimony I have not taken his demeanor into consideration Moreover, when I give
logical reasons for rejecting the testimony of a particular witness, either in its entirety
or on a particular point, it should not be assumed that I rely exclusively on such reasons,
and that the demeanor of the witness has not been considered in evaluating his testi-
mony When I have indicated that I regard a particular witness as generally untrust-
woithy, it is to be construed to mean that I reject his testimony as a whole, unless I
explicitly indicate that I accept his testimony on a particular point
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Illinois corporation, has its main office and principal place of busi-
ness at Santa Clara, California, where it is engaged in the business of manufacturing
canning machinery. During the past calendar year it manufactured, sold, and shipped
goods valued in excess of $50,000 to customers located outside of the State of Cali-
fornia. I find, as admitted by the parties, that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act:
IT. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL-CIO, District Lodge No. 93, is
admitted by the parties to be a labor organization within the meaning of Section 8(5)
of the Act, and I so'find.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The layoffs
Union organization in Respondent took place beginning in early February 1963.5
At that time, Arnold, an organizer for the Union, introduced himself to employee
Jack Garrison in the Respondent's parking lot. Arnold saw a Machinists' publication
in Garrison's car and asked about the possibility of organizing Respondent' s plant.
Garrison, a longtime' member of the Machinists, furnished Arnold with a list of
Respondent's employees, signed an authorization card, and assisted Arnold in obtain-
ing signatures of other employees to authorization cards. Six other employees also
signed authorization cards for, the Union in February. These were Blatt , Hudson,
G. W. Hopper, Glenzer, Carlton, and Powers.
There were 12 employees in the production and maintenance unit involved. These
were listed in a letter dated February 19, from Don Currie,° and the list was used as
a checklist in the subsequent election. One of these, Copp, was later removed as he
had quit prior to the payroll period of February 7 to 14 (which was used in the
election), and two additional employees were added, i.e., Glenzer and Richard Currie.
After obtaining the 7 authorization cards from the 12 employees, the Union filed a
petition for certification of representatives with the Board (Case No. 20-RC-5340)
on February 15, 1963.
A week later, on February 22, employees Blatt, Hudson, and Hopper were laid off.
Thereafter on February 25 Respondent and the Union entered into a consent-election
agreement providing for an election to be conducted by the Regional Director in a
production and maintenance unit.
Pursuant to this consent-election agreement, an election was conducted on March 14,
at which time Respondent challenged the votes of Hopper and Hudson and the
Union challenged the vote of Richard Currie. Of the 10 votes not challenged, the
Union got 5 and 5 voted for no union. As the challenges were determinative of the
results of the election, the Regional Director conducted an investigation and issued a
Report on Challenged Ballots. He found (1) that Richard Currie, the son of Wally
Currie, enjoyed a special status by virtue of his relationship and was therefore an
ineligible voter, and (2) that Hudson and Hopper were on temporary layoff and were
eligible voters. The ballots of Hudson and Hopper were opened thereafter on April 17
and a revised tally of ballots showed that both of the ballots were for the Union.
Hence a majority of ballots had been cast for the Union. Certification of the Union
therefore issued on April 23 and was served on Respondent at its Santa Clara address
and on the Union at its Oakland headquarters.
Not one of the three employees laid.off on February 22 have been recalled to work
for Respondent, although many attempts were made by these employees to be rehired.
'It is noted that within the period when the laid-off employees were seeking reinstate-
ment, two new employees, DeLeon and Jordan, were hired (May 1963 ) in the same
job classifications to perform the same work at the same rate of pay as had been
received by Blatt, Hudson, and,Hopper. This was admitted by Don Currie.
5 All dates occur in the year 1963 unless otherwise noted.
6 Don Currie was the chairman of the board and the director of sales of Respondent
Wally Currie, his brother, was vice president and plant superintendent. The two
,brothers with their father and mother owned all the stock of Respondent.
CURRIE MACHINERY COMPANY 1589
1. Other layoffs
Employee Glenzer was laid off after the election. He had voted in the election
without challenge.
Employee Carlton was laid off by Respondent under very peculiar circumstances.
He was laid off out of seniority, although Respondent had professed a policy of fol-
lowing seniority in its layoffs. For example, in the layoffs of Blatt, Hudson, and
Hopper, Respondent made much of the fact that these three were the last employees
hired. Carlton on the other hand had greater seniority than employee Puckett. Wally
Currie, Respondent's vice president and plant superintendent, admitted knowing that
Carlton was for the Union and admitted that he was a "very good employee." How-
ever, Carlton, a "very good employee" was laid off before Puckett, who was charac-
terized by Wally Currie as only "pretty good." Wally Currie knew Puckett had been
talking against the Union prior to the election. When called upon to explain the
deviation from Respondent's policy of laying off in accordance with seniority, Wally
Currie changed his characterization of Puckett from a "pretty good man" to "He was
a good boy. He was very good."
Employee Powers, characterized by Wally Currie as an "excellent" employee, quit
his job with Respondent on May 20 after having been refused a pay raise. The refusal
to give the raise was allegedly because of "negotiations" with the Union. However,
11 days later on May 31 Respondent granted pay increases to other employees. The
credited evidence of Powers and Carlton, undisputed by Respondent, is that Wally
Currie asked Powers and Carlton in February before the election if they belonged to
the Union. Both men admitted to Currie that they were union members.
Employee Garrison, a known union adherent, was laid off on June 21. He had
acted in the capacity of observer for the Union at the election of March 14. Garrison
and Hopper are the only ones alleged as discriminatees in this case and the facts per-
taining to them will be discussed in greater detail below.
The five remaining employees listed on the eligibility list for the Board election,
namely, Cuthbert, Friedrich, Jones, Puckett, and Vandiver were not discharged or
laid off. On May 31 each received a pay raise in their paychecks This was the first
knowledge any of them had had that they were going to receive a raise It is clear
from the record also that these pay raises were given by Respondent without first
having discussed them with the Union, the employees' certified collective-bargaining
agent. There was some testimony by Respondent's witnesses that "periodic" raises
were given in the first part of each year. The "end of May" does not fit within the
definition of the "first part of the year."
2. Garrison
As noted earlier, Jack Garrison assisted the Union in organizing the Respondent's
plant. In late February, following the filing of the petition for an election, both Don
and Wally Currie had discussed the Union with Garrison. The Curries had told
Garrison that the Union would not be a good thing for their small company and it
would prevent Respondents employees from doing repair work customarily done in
customers' plants. Also as noted above, Garrison was the Union's observer in the
March election.
Immediately following the election, according to Garrison's credited testimony,
Respondent's attitude toward him changed. Members of the Currie family who earlier
had been very friendly to him rarely spoke to him thereafter. Garrison was the most
experienced and the highest paid man in the employ of the Respondent, yet during
the latter part of his employment he was reduced to doing the work of a shop laborer.
By May 31 Garrison was the only employee remaining on Respondent's payroll who
had voted for the Union. Also it is noted that all other employees except Garrison
received wage increases on May 31.
On June 5 Respondent passed out Blue Cross enrollment cards to all employees to
fill out except Garrison. And it was not until June 7 when anything was said to him
regarding his impending layoff, and at that time he was told only that it was a possi-
bility. On June 19 Union Business Agent LeBlanc protested to Don Currie that
Garrison should not be laid off. Nevertheless on June 21 Garrison was informed
that it was his last day. Don Currie testified that he discussed the layoff with Garrison
on several occasions. But when pinned down, however, he was vague and indefinite
as to the time and place of such discussions.?
7 From a careful study of the record I have concluded that the testimony of Don Currie
is generally untrustworthy.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Hopper
As noted earlier, employee G. W. Hopper signed an authorization card for the Union
in February and was laid off on February 22, shortly after the filing of the petition for
election. He was told when laid off that he should check back in 'a week or two for
further employment. Thereafter he contacted Wally Currie on a number of occasions,
both by telephone and in person, and was told there was no work and to "check with
the Union." Hopper was not told at any time that he was not to be put back to work,
yet the Respondent hired two men in May to perform the same job Hopper had been
doing. The last time Hopper checked into the plant for work was on July 11. At
that time he was refused work and told again to check with the'Union. Hopper
credibly testified that Wally Currie at that time told him that Garrison, Blatt, Hudson,
and Hopper had been laid off primarily because of the Union and that the Respondent
had gotten rid of all of the union voters. According to Hopper, Wally Currie told
him that all the employees remaining were those who had voted for the Company,
that wage increases had been granted, and that Respondent "was not going to sign a
contract for a year and that way [Respondent] wouldn't have to be in the Union."
B. The bargaining
The dates of bargaining meetings are in dispute The following is a chronological
recitation of the credited evidence covering the period of time from April 23 through
July 12.
LeBlanc, who negotiated for the Machinists, received a copy of the certification of
representation in Case No. 20-RC-5340 on May 1. This had been issued on April 23,
but had been forwarded to the Union's Oakland office which in turn forwarded it to
LeBlanc. The Union set up a meeting of the employees of Respondent for the evening
of May 16. At this meeting the employees decided that the terms and conditions of
employment they wished -to have presented to Respondent as their proposed agree-
ment was embodied in a document entitled "Independent Machine and Manufactur-
ing Agreement." Thereafter on May 17 LeBlanc telephoned Don Currie and arranged
a meeting for May 22. LeBlanc failed to attend this meeting, but another one was
set up for May 28
At the meeting of May 28, which started at about 1 p.m., LeBlanc gave Don Currie
two copies of the Independent Machine and Manufacturing Agreement. Currie read
through the agreement. When he came to the union-security clause he said "Never."
He also asked for and received an explanation of the seniority clause. As to the
length of term, he told LeBlanc that he wouldn't sign anything but a 1-year agreement.
(The proposed agreement had a 2-year term.) And as to wages he said the wage
scale embodied in the contract would not hurt Respondent as "we do better than this."
No discussion was had as to pay raises for any employee. The meeting ended with
Don Currie agreeing to draw up his proposals and call LeBlanc. Before leaving the
meeting, LeBlanc requested a list of employees showing the wages paid them, their
hire dates, and job classifications.
On May 31 LeBlanc received a copy of a letter from Don Currie dated May 29,
setting forth a list of the employees, their wages, hire dates, and job classifications; the
information requested at the conclusion of the meeting of May 28. •
Also on May 31 Respondent granted all employees of Respondent, except Garrison,
a pay raise.
The next meeting of LeBlanc and Don Currie was on June 4, at which time Currie
gave LeBlanc two copies of a typewritten agreement which Currie had prepared. This
agreement conformed to the Independent Machine and Manufacturing Agreement,
above, except for the following: (1) the union-security clause proposed by the
Machinists had been changed to a union-membership clause, which LeBlanc said he
would have to look over and check with his boss; (2) Currie called LeBlanc's atten-
tion to a paragraph he added to the management clause in which a rule was set up
that management could, if they wished, lay off any employee when he reached the age
of 65; (3) the termination clause in the agreement was changed from 2 years to 1 year;
and (4) an additional job classification entitled "Caster Production" at $2.25 per hour
was added.
During this meeting Currie stated to LeBlanc that he would accept the union-
security clause proposed by the Union if all of the employees in the unit became
union members. LeBlanc countered by suggesting that he would exclude present
employees from compulsory union membership if Currie would agree- to include
future employees. This meeting of some 10 minutes duration closed with LeBlanc
promising to look over the typewritten copies of the agreement submitted by Currie
CURRIE MACHINERY COMPANY 1591
and call Currie for another meeting. Following this meeting LeBanc suggested
to Union Organizer Arnold that he attempt to get all the present employees to sign
applications for union membership.8
Following the suggestion by LeBlanc to sign up the present employees of Respondent
as members of the Machinists , Arnold went to the home of employee Warren Jones
,on June 5. Jones was reluctant to sign an application for membership as he had just
received a raise on May 31 and told Arnold that the employees were going to get some
insurance . (The Blue Cross enrollment cards were distributed on June 5. ) Employee
Bob Cuthbert came in during this meeting and agreed that he also had received a raise
.and was about to receive benefits under some insurance program . He too was reluc-
tant to sign telling Arnold that he did not want the same thing to happen to him that
had happened to the other men who had indicated a desire for union membership.
On June 17 LeBlanc and Don Currie had a telephone conversation in which they
again discussed union security . Arguments were exchanged for and against this provi-
sion in the contract but nothing was settled and a meeting was set up for June 19.
On June 19 Arnold accompanied LeBlanc to Respondent 's plant where they met
with Don Currie . The following took place : ( 1) Currie told them he had not changed
his mind with respect to the union -security clause proposed by the Union ; (2) LeBlanc
asked Currie to put back to work employees Hudson, Hopper , Glenzer, and Blatt;
(3) he also asked Currie not to lay off Garrison out of seniority ; and (4 ) he asked
Currie why raises had been given to the employees during this period of negotiations.
Currie replied to the last question that their raise was a periodic raise. LeBlanc then
asked Currie why he had attempted to get health and welfare insurance from the Blue
Cross, to which Currie admitted , in effect, he had no right to do. This meeting lasted
,about one-half hour but before it was over LeBlanc had agreed to a 1-year term.
On June 20 Arnold talked to employee Puckett at lunchtime. Don Currie came
,out of the plant to where they were talking and told Arnold that he was trespassing
and he, Currie , did not want his men bothered when they were eating. Arnold then
left the premises.
On June 21 , 24, and 25, LeBlanc telephoned Don Currie but was told in each
instance that he was "out."' On June 26 he talked with Don Currie about the union-
security clause in an attempt to arrive at an agreeable clause. Currie told him that
it was against his principles to make employees join a union but he, Currie , promised
to call LeBlanc.
On July 11 LeBlanc again telephoned Currie and was told he was "out" and on
July 12 LeBlanc filed the present unfair labor charge against the Respondent. There
has been no bargaining thereafter . However, at the hearing Respondent indicated
a willingness to continue bargaining.
1. The insurance negotiations of Don Currie
Lawrence D. Wagnon , group representative for Blue Cross insurance plans, credibly
testified that he received a telephone call from Don Currie on June 3, at which time
'Currie told him that he, Currie , was in the middle of union negotiations with the
Machinists and would like facts and figures on rates and benefits of the Machinists'
insurance program . Wagnon then wrote a letter to Respondent and delivered it and
some brochures to Don Currie that same afternoon of June 3. These brochures out-
lined the Machinists ' plan. Currie, on June 3, told him that he would be dealing with
.the Union the following day and for Wagnon to contact him again on the next day,
June 5. On June 5 Wagnon again came to Respondent's office and talked with Don
Currie. At that time, Currie told him the union negotiations were stalemated and he,
Currie, wanted to put in a group insurance program anyway. He thought the people
needed it. Wagnon told Currie that he could not write the Machinists ' program unless
'Currie had a Machinists ' contract , so they settled on a different program for small
groups. Wagnon left enrollment cards with Don Currie who told him that he wanted
to put the program into effect as soon as possible . Wagnon was to return and pick up
the cards on the following Friday (June 7 ). (Don Currie distributed the cards to
the employees , except Garrison , and to management officials on the same day , June 5.)
The following morning of June 6, LeBlanc telephoned Wagnon, as he had heard
'that Wagnon was discussing insurance plans with the Respondent . Wagnon assured
LeBlanc that he was not selling Respondent the Machinists ' plan but LeBlanc told
8 As noted earlier , Arnold was the one who started organizing the Respondent in Febru-
ary through Garrison In the "middle of May" he had taken out a notice of a meeting
of the employees , but did not post it because of objections by Wally Currie . Nevertheless,
a meeting of the Respondent ' s employees had been held on May 16.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that Currie's discussion of any insurance plan was illegal. Wagnon immediately
telephoned Currie telling him what he had been told and Currie told him to hold off
and wait and see what was going to happen. Some 3, 4, or 5 weeks later Don Currie
told Wagnon that nothing further could be done on the insurance plan, and, as of
the time of the hearing , no insurance plan has been put into effect.
2. Respondent's position as to the union-security clause
With respect to the union-security clause in the contract proposed by the Machin-
ists, Don Currie first testified that he did not know how his Company would take such
a clause. Later on when he testified on direct examination as part of the Respondent's
case, he related, "I said I do not know whether our management would be too pleased
with this section." Three questions later he said, "I told Mr. LeBlanc it was a rather
close election and we didn't feel that we had a right to force the men to join the Union
who do not necessarily want to join it."
LeBlanc credibly testified that he was not authorized to sign a union membership
clause at the time it was presented to him at the meeting of May 28, but that subse-
quent to that day he did receive permission to modify the clause.
3. Credibility
In this case I have generally credited the witnesses for the General Counsel. In
addition to their demeanor on the stand, their stories impressed me as being more
consistent. In instances where it appeared they may have made an error with respect
to a date they were not loath to admit error. It is also noted that many of the wit-
nesses for the General Counsel were no longer employees of Respondent and had no
present interest in the proceedings. In addition, one witness, Wagnon, had never
been an employee.
On the other hand, the principal witness for Respondent, Don Currie, although in
agreement with some aspects of what took place during the various bargaining meet-
ings, would have me believe that the meetings were held on totally different dates
than as testified to by the General Counsel's witnesses. Apparently this was done to
attempt to establish a longer period of bargaining before May 31. He would even
have me believe that the meetings he had with the Blue Cross representative, Wagnon,
were on dates other than those testified to by Wagnon. Apparently he attempted to
show that he met with LeBlanc on June 4 before he saw Wagnon_the first time (and
thus show an impasse in bargaining), but his own records as well as other testimony
(his secretary) pointed to the accuracy of Wagnon's testimony. Wagnon's testimony
under the circumstances was inherently credible.
Don Currie changed his testimony many times and in many ways. As an illustra-
tion, it will be sufficient to note that he had supplied a sworn affidavit to a Board
agent on August 29. The testimony he gave in that statement happened to coincide
with the testimony given by the General Counsel's witnesses at this hearing. How-
ever, Currie, in his testimony at the trial, contradicted his testimony given on Au-
gust 29. He attempted to explain away these embarrassing contradictions on the
ground that when he gave the affidavit he assumed the Board agent had particular ref-
erence'to a calendar and he was not correlating the informtion. He did admit, how-
ever, that he knew that there was an unfair labor practice charge pending and that the
investigation had to do with that charge. He admitted that he read over his statement
and made corrections and deletions and additions in his own handwriting and that he
was fully cognizant of the contents of the sworn statement. His testimony at,the
trial was that the dates given in the affidavit were in error and he> had no notes to
refer to. He stated that he gave the affidavit at Respondent's plant while he was in
his brother Wally's office some 100 to 200 feet away from his own office. Under
.these circumstances I find his oral testimony to,be incredible.9 In other instances
There are many more inconsistencies in the record and rather than to give an ex-
haustive list of them I will simply mention a few more as follows: When presented with
a 'copy of the Union's proposed contract he stated that the Union's pay scale was less
'than the Respondent's whereas his own records proved the contrary ; In his affidavit,
Currie stated that at the first meeting'held'on May 28 "LeBlanc asked for a list of em-
ployees with pay scale and classification and I mailed that the next day" whereas on the
stand he testified that his letter dated May 29 ( in which this information was listed)
CURRIE MACHINERY COMPANY 1593
when he was attempting to explain away errors in testimony he appeared to blame
whoever it was that prepared the information for his signature rather than shoulder
any of the responsibility.
4. Conclusions
The record in this case reflects a course of conduct taken by Respondent in disregard
of the purposes and policies of the Act. Respondent destroyed employee union activ-
ity, a guarantee given them under Section 7 of the Act, by laying off those who were
in favor of the union and granting pay increases to those who were not in favor of
the Union. It is interesting to note that, although Don Currie testified that the
employees should have Blue Cross insurance and he was interested in getting it for
them, he never followed through with this although he did grant the wage increase.
The law is clear that where there is an outstanding certified majority representative of
the Act (see Ray Brooks, 98 NLRB 976, enfd. 204 F. 2d 899 (C.A. 9), affd. 348
the employees in a unit the above conduct violates Section 8(a)(5), (3), and (I) of
U.S. 96; Franks Bros. Company, 44 NLRB 898, enfd 137 F. 2d 989 (C.A.D C.),
affd. 321 U.S. 702; Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F. 2d
732, cert. denied 341 U. S. 914; N.L R.B. v. Benne Katz, d/b/a Williamsburg Steel
Products Co., 369 U.S. 736; and Medo Supply Corp. v. N.L R B., 321 U.S. 678).
Additionally the evidence shows a flexibility of approach reflecting a willingness to
compromise on the part of the Union while the Respondent stood firm on almost
every matter. Respondent's proposal that it would sign the Union's union-security
clause if the employees would all join the Union is no sign of a willingness to com-
promise. It had gotten rid of all the union members but Garrison and had raised
the pay of all but Garrison and was promising insurance to all but Garrison. Under
these circumstances it was not taking a big chance by conditioning signing of the
union-security clause on getting the employees to join the Union. Employees Jones
and Cuthbert refused to join under these circumstances. N.L.R B. v. Reed & Prince
Mfg. Co., 205 F. 2d 131 (C.A. 1); and compare N.L.R.B. v. Almeida Bus Lines, Inc.,
142 NLRB 445 enforcement denied 333 F. 2d 729 (C.A. 1).
C. The discharge violations of Section 8(aX3)
The credited testimony of Hopper spells out the union animus of Respondent and
is an admission by Wally Currie, the general superintendent, that Blatt, Hudson, Carl-
ton, Powers, and Glenzer had been discriminatorily laid off, or, in the case of Glenzer,
had not been recalled Because the charge did not allege discrimination with respect
to these five employees the General Counsel did not request the Trial Examiner to
find a violation with respect to them. Also the General Counsel noted that none of
these five employees desired to have any further ielationship with Respondent.
The Respondent asserted that the layoffs of Hopper and Garrison were for economic
reasons. This is even refused by its own records. The January sales for 1963, as
submitted by Respondent, were more than triple those of 1962. February sales for
1963 were almost triple those of 1962 and this was the month of union organization
followed a request made 3 weeks earlier , he admitted in his testimony that the first
time he talked to Wagnon he told Wagnon that Respondent was in negotiations with the
Union But this talk with Wagnon was in June at a time when , according to Respond-
ent's defense, the pay raise of May 31 had been granted because he and the Union were
in a stalemate and hence could not have been negotiating ; Currie testified he called
LeBlanc on May 25 to set up a meeting but altered his testimony on a leading question
by his counsel to say that it was sometime during that week (May 25 fell on Saturday
and he would not have been working ) , Currie testified that he instituted the wage raise
of the employees on the day following the day on which his brother Wally came to him
and told him that he should give the raise The raise was effectuated on May 31, but
later on Don Currie testified that the plant did not work on Memorial Day, May 30, so
these events could not have happened , and finally it is noted that Respondent's letter
dated May 29 reflects the existence of pay raises to which he testified were not to become
effective until May 31 The May 29 letter indicates that there was no impasse in bargain-
ing negotiations as he testified because this letter had just been requested the day before
at the May 28 meeting . The letter which listed the rates of pay after the pay raise was
made is also inconsistent with his testimony that Wally requested the raise the day before
it was given.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the layoff of three individuals. It was not until May that the 1962 sales were
appreciably more than those for the same month in 1963, and this was the month
when two new employees were hired Don Currie's position that he could see early
in the year the decline in sales in his machinery manufacture and hence he was eco-
nomically justified in making the layoffs is untenable. He had hired two new men in
May to do the same type of work and to receive similar pay and to have similar job
classifications as those laid off, and he had laid off Carlton out of seniority to Puckett
and had discriminated against Garrison. His story is implausible and a mere pretext.
As to Garrison and the reason given for his layoff, it is remembered that the reason
given was that Garrison was getting to be 65 and he was the highest paid employee.
Garrison was the highest paid employee. Garrison, according to Currie's letter of
May 29, was making $3.40 an hour. However Jones had just been raised to $3.25
an hour and two employees including Puckett were making $3.30 an hour. Puckett
was the one, as noted above, that was kept as against Carlton, who not only ranked
him on seniority but ranked him on ability according to the first testimony of Wally
Currie. It is also noted that it was not until the meeting of June 4 between LeBlanc
and Don Currie that there was any indication that Respondent wanted a policy to be
able to lay off employees who reached the age of 65. At this time there was no indica-
tion this was for the benefit of Garrison. The very fact that such a layoff at age 65
was to be solely in the discretion of the employer would, under the circumstances
surrounding the latter days of Garrison's employ, point toward a use of the rule to
discriminate against Garrison. The law is clear that a good rule cannot be used to
discriminate against employees in violation of the Act. Accordingly, I find that the
layoff of Garrison because he was reaching age 65 was a pretext with the real reason
being that he was active in bringing in the Union. Hence such a discharge would dis-
courage membership in the Union and thus would violate Section 8 (a) (3) and (1)
of the Act.
In his brief, the General Counsel states that he does not request the Trial Examiner
to find that Blatt, Hudson, Carlton, Powers, and Glenzer were discriminatorily laid
off or otherwise discriminatorily treated. This was based on the fact that the charge
does not allege they were discriminated against by Respondent, "and none of them
desires to have any further relationship with the Respondent." The complaint does
not allege the layoff of these named five employees as being violative of the Act and
I am unable to find from the record that their layoffs have been litigated fully by
parties. Respondent was not on notice of having to defend its actions in this regard
and put on evidence it may have had. Accordingly, I will make no finding with
respect to them.
IV. THE REMEDY
The appropriate remedy for the discharge of Garrison and Hopper is to reinstate
them with backpay and interest computed under the formulas approved in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. The Company should also be ordered to cease and desist from discriminating
against employees for union or concerted activity and from like or related violations
of employee rights under the Act.
The appropriate remedy for the refusal to bargain in good faith is to order the
Respondent to cease and desist from not bargaining in good faith and to order it to
bargain with the Union and, if an agreement is reached, to reduce it to writing and'
sign it.
The Company shall also be ordered to cease and desist from interfering with,
restraining, and coercing the employees in the exercise of their rights guaranteed them
under Section 7 of the Act.
Finally, I shall recommend the posting of an appropriate notice.
CONCLUSION OF LAW
1. By interrogating the employees as to their union activities, by giving them wage
increases, and by promising them insurance benefits, I find the Respondent has inter-
fered with, restrained, and coerced its employees in violation of Section 8(a)(1) and
Section 2(6) and (7) of the Act
2. By discharging employee Jack Garrison and G. W. Hopper under the circum-
stances and for the reasons described above, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
CURRIE MACHINERY COMPANY 1595
3. By affecting the wages, hours, and terms and conditions of employment under
the circumstances and for the reasons described above without first bargaining with
the duly designated majority representative of the employees, the Respondent was not
bargaining in good faith with the majority representative of the employees but rather
was engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Currie Machinery Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against employees because of their activity on behalf of Inter-
national Association of Machinists, AFL-CIO, District Lodge No. 83, or because of
other union or concerted activity for mutual aid or protection.
(b) Refusing to bargain in good faith with International Association of Machinists,
AFL-CIO, District Lodge No. 93, or any other labor organization which represents
the majority of its employees in an appropriate unit.
(c) Making unilateral changes in the wages, hours, and terms and conditions of
employment of employees without first bargaining in good faith with the majority
representative of such employees.
(d) Interrogating employees as to their union membership.
(e) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Offer to reinstate employees G. W. Hopper and Jack Garrison to their former'
or substantially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by
reason of the discrimination against them.
(b) Notify G. W. Hopper and Jack Garrison, if they are serving in the Armed
Forces of the United States, of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
(c) Upon request, bargain with the International Association of Machinists, AFL-
CIO, District Lodge No. 93 as the certified bargaining agent of its production and
management employees and, if agreement is reached, embody it in a contract and
sign it.
(d) Preserve and make available to the Board or its agents, upon request, for
examination and copying, all payroll records, social security and payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms hereof.
(e) Post at its plant at Santa Clara, California, copies of the attached notice marked
"Appendix." 10 [Board's Appendix substituted for Trial Examiner's Appendix.]
Copies of such notice to be furnished by the Regional Director for Region 20, shall,
after being duly signed by an authorized representative of the Respondent, be posted
immediately upon receipt thereof, and be maintained by it for a period of 60 consecu-
tive days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of the receipt of this Decision, what steps Respondent has taken to comply
herewith."
lsIn the event that this Order is adopted by the Board, the words "as Ordered by"
shall be substituted for "as Recommended by a Trial Examiner of" in the notice. In the
further event that the Board's Order be enforced by a United States Court of Appeals,
the words "a Decree of the United States Court of Appeals, Enforcing an Order of" shall
be inserted immediately following "as Ordered by."
11 In the event that this Order is adopted by the Board, this provision shall be modified
to read* "Notify said Regional Director, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith."