Electric Motors and Specialties, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1432 (N.L.R.B. 1964)

1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
or all such activities.
OHIO CAR & TRUCK LEASING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they
have any question concerning this notice or compliance with its provisions.
Electric Motors and Specialties, Inc. and International Union
of Electrical , Radio & Machine Workers, AFL-CIO. Case No.
18-CA-5368. December 8, 1964
DECISION AND ORDER
On August 26, 1963, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He further found that the Respondent had not
engaged in certain other unfair labor practices as alleged in the com-
plaint and recommended the dismissal of these allegations. There-
after, the Respondent, the General Counsel, and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
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
entire record of this case, including the Intermediate Report, the
exceptions, and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations only to the extent consistent
herewith.
We agree with the Trial Examiner's findings that the Respondent
did not, as alleged in the complaint, engage in interrogation of and
surveillance of employees with respect to their union activities, or
threaten reprisals, or give warning notices or reprimands to employ-
ees as a result of their engaging in such activities, in violation of
Section 8(a) (1) of the Act. We also agree with the Trial Examiner
that Respondent did not, as alleged in the complaint, violate Section
8(a) (3) of the Act by terminating certain employees. Accordingly,
we shall adopt his recommendations that those allegations of the
complaint be dismissed.
149 NLRB No. 125.
ELECTRIC MOTORS AND SPECIALTIES, INC. 1433
The Trial Examiner, however, found that the Respondent had vio-
lated Section 8(a) (1) of the Act by unlawfully participating in the
circulation of a decertification petition and by adopting such petition.
He further found that Respondent had violated Section 8 (a) (5) of
the Act when it subsequently refused to bargain with the Union for
a new contract while the petition was pending before the Board. We
find merit in the Respondent's exceptions to these findings and con-
clusions of the Trial Examiner for the reasons hereinafter set forth.
1. The decertification petition
The Union was certified by the Board on October 31, 1961, and the
parties executed a contract expiring on February 26, 1963. In
November 1962, a meeting of certain employees was held at the home
of Becky Obendorf, an employee in the certified unit. The petition
was signed by those present and subsequently by other employees.
Thereafter, on December 26, 1962, it was filed with the Board.' The
evidence demonstrates that the only connection Obendorf had with
the petition was the holding of the initial meeting at her home and -
her signing of the petition. She did not address the employees at
the meeting or take any part in urging those present to sign. The
record is completely silent as to the subsequent circulation of the
petition although Obendorf testified, without contradiction, that the
petition was not circulated at the plant of the Respondent.
The Trial Examiner found, and the record demonstrates, that
Obendorf is not a supervisor. The Trial Examiner also found, how-
ever, that Obendorf was an "agent of management" and that she was
entrusted with certain management authority. We do not agree.
The evidence establishes only that Obendorf was an employee of long
standing whose experience, abilities, and suggestions were valued.2
There is no evidence that she had been cloaked by the Respondent
with any authority which could render it responsible for statements
made or actions taken by her. Certainly she was not in a "strategic
position to translate (to employees) the policies and desires of man-
agement."' If she identified herself with management, and we
cannot find such identification on this record, it was without Respond-
Case No. 13-RD-533.
The Trial Examiner, in reaching his conclusion of agency , relied in great part on two
instances of her exercise of this alleged authority : ( 1) Obendorf "reported" a girl was
missing from her machine ; the fact is , Obendorf merely inquired of her supervisor, Muhn,
where the missing employee was, and ( 2) Obendorf stated that she could not operate two
machines and more help was needed The record demonstrates , however, that she oper-
ated various machines at different locations and that, "If I am the only one back there,
you can ' t operate two machines at the same time." The request for help followed. These
incidents fall far short of indicating any agency relationship.
iInternational Association of Machinists , Tool and Die Makers Lodge No. 35 ( Serrick
Corp.) v N L.R.B , 311 U.S. 72, 80-81. Cf N.L R.B. v. Solo Cup Company, 237 F. 2d
521, 523-524 (C.A. 8)
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's knowledge or approval. Her opposition to the Union did not
make her an agent of Respondent so as to render Respondent respon-
sible for her conduct 4 Under Section 2(13) of the Act, the respon-
sibility of the Respondent for the actions of others alleged to be its
agents is controlled by the applicability of the common law rules of
agency.5 We find that the General Counsel did not sustain his burden
of proof as to the alleged agency of Obendorf. Therefore, on the
entire record, we do not agree with the Trial Examiner's legal con-
clusion that Obendorf was an agent of Respondent., Accordingly,
we find that the Respondent was not responsible for Obendorf's
limited activity with respect to the institution and the circulation of
the decertification petition.
Further, we do not agree with the Trial Examiner's finding that
the Respondent unlawfully sponsored or adopted the petition by
permitting its circulation on December 21 in the plant on company
time. The record demonstrates that such activity had previously
been brought to a halt in the plant and that, when informed that it
had begun again on December 21, a representative of the Company
stated that he would take steps to end any further circulation of the
petition. The evidence establishes that the petition was filed on
December 26, the plant having been shut down on December 23, 24,
and 25 for the Christmas holidays. There is no indication that any
attempt was made to circulate the petition in the plant on December 22.
The record does not contain sufficient evidence that the Respond-
ent's conduct on December 21 constituted sponsorship or adoption of
the petition on its part.?
Accordingly, we find that the decertification petition filed with the
Board on December 26, 1962, was the product of the Respondent's
employees alone and that the Respondent had not violated Section
8(a) (1) of the Act in connection therewith.
2. The alleged refusal to bargain
On December 11, 1962, the Union requested Respondent to enter
negotiations for a new collective-bargaining agreement to follow the
then-operative contract which, by its terms, was to expire on Feb-,
ruary 26, 1963. On December 26, 1962, a timely decertification peti-
tion was filed. On January 6, 1963, the Regional Office issued a
notice of hearing and thereafter held a hearing on January 16 on the
petition.
4 Superior Tool if Die Co ., 132 NLRB 1373 , 1385-1386.
5International Ladies' Garment Workers Union ( B.V D. Compannj) v. N L.R.B., 237
F 2d 545 , 551 (CAD C ).
6 See J. P. Stevens Company , Exposition Plant, 147 NLRB 1133, where the Board, on
similar facts, did not adopt a similar finding of agency by the Trial Examiner herein.
7 Cf Kit Manufacturing Company, Inc., 142 NLRB 957 , where the Company had ad-
vance warning that an employee intended to circulate a petition but took no steps to
deter this employee.
ELECTRIC MOTORS AND SPECIALTIES, INC. 1435
The Trial Examiner found that Respondent violated Section
8(a) (5) by its action on February 8, 1963, in declining to bargain
for a new contract with the Union. As indicated, this declination
came after the representation hearing and at a time that the matter
was awaiting decision on the merits. In concluding that Respondent
had violated Section 8(a) (5), the Trial Examiner rejected Respond-
ent's "plea of good-faith doubt" of the Union's majority. The Trial
Examiner did so on the basis of his subsidiary findings that Respond-
ent had engaged in certain illegal conduct respecting the decertifica-
tion petition, the net effect of which was, in the Trial Examiner's
words, to estop the Respondent from questioning the representative
status of the Union.
Contrary to the Trial Examiner, however, we have found that
Respondent did not engage in unlawful conduct in connection with
the decertification petition. We accordingly conclude that Respond-
ent was not estopped, in the circumstances, from challenging in good
faith the Union's majority status. We shall, therefore, dismiss the
8(a) (5) allegation.
Concluding, therefore, that Respondent has not violated the Act in
the respects alleged, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
CIIAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein , as amended ( issued March 14, 1963; charges filed January 16
and February 15, 1963), alleges that the Company has violated Section 8 ( a)(3) of
the National Labor Relations Act, as amended , 73 Stat. 519, by terminating the
employment of Robert Parker on or about January 4, 1963, and of Frances Pollack
on or about January 9, 1963, and failing to reinstate them because of their union
membership or activities ; and Section 8(a)(1) and (5) of the Act by said alleged
acts, by interrogation concerning union membership , activities and desires , surveillance,
threats, and warnings or reprimands because of employees' union activities , encourage-
ment, ratification , and condonation of solicitation of signatures for a decertification
petition, and by refusing to bargain with the Union as the collective -bargaining repre-
sentative of its employees in an appropriate unit, concerning terms and conditions
of employment.
The answer, as amended , puts in issue the status of three persons alleged to be
supervisors or agents of the Company, and denies the allegations of violation , itself
alleging that the terminations were pursuant to a contract with the Union (the refer-
ence being to a provision for satisfactory completion of a probationary period), and
that the Company advised the Union that it could not engage in contract negotiations
while a question concerning representation existed.
A hearing was held before Trial Examiner Lloyd Buchanan at Garrett, Indiana,
from May 15 through May 17, 1963, inclusive . At the opening of the hearing,
argument was heard on a petition to intervene filed on behalf of Electric Motors
Workers Local No. 1. The petition was denied. Argument on the petition and the
basis for the denial are sufficiently set forth on the record . Pursuant to leave granted
to all parties , briefs have been filed by the General Counsel and the Company.
On August 7 I received from the General Counsel a motion to reopen the record
herein and to consolidate this case with Case No. 13-CA-5692, in which a complaint
had been issued on August 5 alleging discriminatory issuance of two reprimands to
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
/employees on or about May 21, 1963, in violation of Section 8(a)(1),`(3), and (4)
of the Act. The motion with the complaint thereto attached are hereby marked and
'received as "Trial Examiner's Exhibit No. I."
Section 102.33 of the Board's Rules and Regulations, Series 8, provides that the
General Counsel may consolidate proceedings. Under the last paragraph of the
section, the Trial Examiner may rule on motions to sever; no authority is given to the
Trial Examiner to consolidate. (There will soon be in effect an amendment of the
rules, which permits the Trial Examiner to reopen, but the General Counsel to con-
solidate.') I think that I should not arrogate to myself authority which the rules vest
elsewhere. I pointed this out on the record and denied a motion to consolidate made
at a hearing in I. Posner, Inc., et al. Case No. 2-CA-7270. (At that time, I reopened
the earlier proceeding, Case No. 2-CA-6864 [133 NLRB 1573], and there considered
and denied the motion to consolidate.) In its Decision and Order in that case,2 the
Board, affirming my rulings, made no specific mention of the motion to consolidate.
Further support for this position can be found in the United Packinghouse Workers
case,3 where the Board, upholding the Trial Examiner's denial of a motion to con-
solidate, noted: "Under Section 203.33 of the Board's Rules and Regulations dis-
cretion to consolidate complaint proceedings is vested in the General Counsel."
Former Section 203.33 is the present Section 102.33. On the other hand, in Bonnaz
Embroideries Tucking and Pleating and Allied Crafts Union Local 66, et al. (William
L. Davis, et al., d/b/a, V. & D. Machine Embroidery Co.),4 the Board reversed the
Trial Examiner's denial of a motion to reopen and consolidate.
In The Standard Oil Company (an Ohio Corporation),5 all parties agreed to con-
solidation at the hearing. The Board did not comment on this. Similarly, in Acme
Boot Company, Inc.,6 the Trial Examiner granted a motion to reopen and consolidate
with new cases; no exception was taken to the Board, which issued no ruling on the
consolidation.
Without presuming to tell the Board what it should do, but only in the event that,
despite the rules and authorities cited, supra, it be held that the power is mine, I would
exercise my discretion 7 to rule that consolidation should not now be permitted. (The
requirement that consolidation be deemed "necessary" presumably would apply to the
Trial Examiner as it does, under Section 102.33, to the General Counsel.) There is
every reason to issue a report on the hearing held 3 months ago; but for other cases
decided or heard, this report would have issued well before the request for consolida-
tion . The evidence heretofore received calls for determination, which is now made.
Consolidation would not obviate further hearing; it would cause delay here and
scarcely lessen costs.
The discrimination and interference, if any, in connection with the two reprimands
which form the basis of the new complaint depend on wholly new and separate acts as
alleged , and findings thereon can be made regardless of the findings herein. Repri-
mands may not be a "sometime thing"; it would not be surprising if more were issued.
The existence of other violative acts can be separately determined. The motion to
reopen and consolidate is denied.
In view of the disposition now made, it is unnecessary to pass on the Respondent's
request of August 8, received on August 13, to extend its time to answer and object
to the General Counsel's motion. The Respondent's request is hereby marked and
received as "Trial Examiner's Exhibit No. 2."
Upon the entire record in the case and from my observation of the witnesses, 1
make the following-
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, an Indiana corporation with prin-
cipal place of business in Garrett, Indiana, manufactures electric motors and spe-
1 See Central Freight Lines, Inc., 133 NLRB 393, 399, where that procedure was
followed
2 133 NLRB 1567.
9 United Packmghoase Workers of Amerwca, CIO, et al (Wilson & Co , Inc ), 89
NLRB 310.
S 134 NLRB 879, 886.
6 137 NLRB 690, 697.
G 143 NLRB 628.
7 Concerning arbitrary abuse of discretion , see International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, Local 728 ( Overnite Transportation Company),
130 NLRB 1020, 1022.
ELECTRIC MOTORS AND SPECIALTIES, INC. 1437
cialties; and that during 1962 it sold and shipped directly to points outside the State
of Indiana materials valued at more than $50,000. I find that the Company is engaged
in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Supervisors
The General Counsel claims and the Company denies that Obendorf, Boren, and
Holmes were supervisors or agents of the Company during the period in question.
In the contract between the Company and the Union, which expired on February 26,
1963, Obendorf and Boren were listed as rank-and-file employees with reference to
their rates and seniority. (Holmes was not employed by the Company until September
1962. His name was thereafter posted on the seniority list without objection.) On
the other hand, it was testified that their votes had previously been challenged by the
Union, which then claimed that they were supervisors. But this latter is more than
balanced by the Union's formal objections to the 1960 election, which claimed that
Obendorf was an "eligible unit employee." While such admissions and claims are
not binding on the Board, the basis therefor is entitled to consideration.
In September 1961, long before the statutory period but properly to be weighed
on the presumption of continuation of status, employees Lumpkin and Roose 8 com-
plained to Wayne Morrill, the Company's president, concerning the former's failure
to receive an automatic increase. Morrill checked with the assistant personnel man-
ager, Thompson, who declared that Lumpkin was working for Obendorf, who in turn,
had said that Lumpkin's work was not up to par. Here is uncontradicted testimony
of an apparent admission in the phrase "was working for," and reliance on Obendorf's
appraisal of Lumpkin's work, although Roose did not know whether Lumpkin there-
after received the increase.
Further testimony by the General Counsel's witnesses was to the effect that at that
earlier period Obendorf assigned work to employees on some half dozen machines,
but that she has fewer machines and employees now; she set up various machines, told
the employees which of them to Iun and what was expected, and kept an inventory of
the work as it progressed or was passed from one machine to another; further, that
her production records on each machine and each employee were later transferred to
a production or inventory sheet, which was then laid on Superintendent Muhn 's desk;
and that inventories are kept on other operations by company supervisors.
From the mass of testimony in this connection, it appears that Obendorf was the
conduit for the transmission of management's instructions and directions to employees.
Her assignment of work to others was with limited authority as she parceled it out
and directed changes when one job was completed and another needed to be done, as
indicated on a production sheet. (Roose testified that she checks with Obendorf only
when directed to do so by her own supervisor, Cramer.) Obendorf sets up machines,
shows others how to operate their machine, and helps them with their work, in this
performing no differently from O'Fallon, a former- supervisor, but now an admitted
rank-and-file operator who was called by the General Counsel and testified that she
has been moved to different jobs as a utility girl, has helped others with their work, and
has assisted some to learn their work. We come close to recognizing supervisory
status in Obendorf's asking for additional help as needed. But here the decision to
assign such temporary help is not hers.
One overenthusiastic witness, Clevenger, on whom I do not rely,9 testified that after
Cramer, who was identified as in charge of other supervisors and next in command to
Muhn, assigned her to certain work, Obendorf overruled the assignment. Clevenger
later explained that on one occasion she consulted Cramer' s assistant because Oben-
dorf was not her boss.
The finding indicated by all of the testimony concerning Obendorf's duties and
performance thereof is consistent with her rate- of pay, $1.65 per hour, which was
within the range of admitted rank-and-file employees, some of whom receive $1.62;
it is markedly less than $2.10, the only rate testified to as paid to a supervisor, who
was questioned primarily concerning her experience with Parker, infra. Nor'should
we overlook the fact that despite the testimony offered concerning Lumpkin' s grievance
to show Obendorf's status, it does not appear that the latter was called in or con-
sulted in the handling of that grievance.
8 Roose's position at that time in the local union , admittedly a labor organization, is not
clear. She has been its president since February 1962.
8 This is a credibility finding. Cf. Jackson Maintenance Corporation, 126 NLRB
115, 117.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While there is evidence of greater reliance on Obendorf than on other nonsuper-
visory personnel, she is not relied on as a supervisor, does not act as such, and does
not receive the recognition which the supervisors receive. Yet she is entrusted with
certain elements of discretion and direction which affect her status as viewed by the
employees. One instance, when she reported that another employee was away from
her work, further indicated, as several were informed, her connection with manage-
ment although without any authority of her own. From all of the evidence in this
connection, I find that Obendorf has not in fact been a supervisor, but has been
entrusted with such duties and clothed with such indicia of authority as a longtime
employee relied on by the Company, as when she told Muhn that she could not run
two machines and more employees were needed (others also operate more than one
machine); that, although a rank-and-file employee, she is an agent of management
and a conduit in transmitting its directions; and that she is so regarded by the employ-
ees. Whether she is thus its agent or a supervisor, Obendorf's acts and statements are
invested with apparent or actual authority, and the Company is responsible for them.
Boren is the oldest in point of service of three office or clerical employees, although
she does not work in the office. She handles stock records, and turns into the office
and transmits to supervisors data concerning the flow of material. If Boren is more
than a clerk with such duties, there is no evidence of it. The Company's reliance in
February on the filed decertification petition, infra, does not invest Boren, or any
other rank-and-file employee who obtained signatures, with the status of supervisor
or company agent, on that or an earlier date.
With respect to Holmes, it was brought out by the General Counsel that he was to
be a supervisor in fututo "He was going to be trained to be a supervisor, when he
learned all the things to be done on automatics." The future aspect and the fact that
Holmes was being trained to be a supervisor during the period in question are so clear
that the General Counsel stated as his position that a trainee-supervisor is, a supervisor
within the meaning of the Act. I will not thus confuse potentiality with actuality. As
for Holmes' duties and performance, Pollack testified that he, as distinguished from
her supervisor, showed her how to do things, not what to do, except "indirectly," and
frequently assisted her. Including Martin, who was hired some 4 weeks after Holmes
and was his supervisor, there have been approximately six employees in the pressroom
on the night shift. Holmes was neither a supervisor nor reasonably to be regarded
as such.
Nor is this finding to be modified because of a grievance concerning supervisors and
the reply thereto, received in evidence. The grievance was to the effect that the
Company kept hiring supervisors and placing them on hourly production jobs, replac-
ing rank-and-file employees. It asked that all laid-off employees be recalled as they
had more seniority than "the new supervisor pinning their jobs." In its reply, the
Company stated, "The supervisory positions which you refer to were offered to a
current employee of the Punch Press Department. The positions were rejected by
the employee and the Company subsequently offered the positions to people outside
our present employ...."
In this confusion between "employees" and "the employee," it appears that the
"supervisory positions" offered to a current employee were evidently work or types of
work rather than positions. As for their being turned over to people outside the Com-
pany's employ, these were apparently not supervisory: there is not even a reference
to the hiring of any other alleged supervisor besides Holmes.
B. The alleged independent violation of Section 8(a) (1)
1. Interrogation
On the basis of the findings concerning supervisory status and agency, we shall not
here consider alleged interrogation by Holmes or Boren; we are concerned with such
an allegation with respect to Obendorf. Testifying that Boren on numerous occa-
sions questioned him concerning the Union, Palmer added that this was once done in
Obendorf's presence, and that both of them asked at that time whether he had signed
a union card. I find no interference in this sole and weakly testified-to incident. Nor
does this suggest company knowledge, infra, of union activities engaged in by Parker
even if we could impute Obendorf's knowledge, if she had any, to the Company.
Parker testified that his reply to them was that it was none of their business, and that
he had in fact signed a card the day before. As for Obendorf and Boren (again it was
both of them) telling him that they hoped he had made the right decision and that it
was against the Union, this is not even alleged to be a violation.
ELECTRIC MOTORS AND SPECIALTIES, -INC. 1439
2. Surveillance
We need not dignify with analysis the testimony by two witnesses to support the
allegation of surveillance by Supervisor Bowmar when she appeared to be selecting
greeting cards in the only variety store in town at the time when these two passed the
store entrance on their way to a union meeting on the floor above. This testimony was
scarcely sufficient even without the credible and altogether sufficient explanation which
Bowmar thereafter submitted.
In this and some other items there appears to have been no more basis for the claims
made than there was when the Union filed its grievance concerning the failure to
promote an employee to supervisor, about which we heard several times; Smart, the
steward who helped process it with the president of the local union, testifying later that
both of them figured that the employee whom they had thus represented would not
be a good supervisor. Such testimony reflects on the good faith of the various claims
made to the Company (among them Smart's grievance concerning the warnings given
her, infra) and the allegations here presented.
3. Threats
At a grievance meeting on February 5, 1963, the Union's field representative
brought up the subject of new hiring by the Company, and asked whether it expected
to expand. Jerry Morrill, son of Wayne Morrill, replied on behalf of the Company
that it was going to fire all of the union people and hire new people to take their place.
When Carter, the union representative, stated that was just what she thought, Morrill's
rejoinder was, "Well, that is just what you wanted me to say, wasn't it?" Admittedly,
Morrill "kind of chuckled a little bit, but he was real serious after he said it." Morrill
himself testified that he had spoken facetiously. If the seriousness of the subject makes
light treatment inadvisable (the inclusion of this allegation should prove that to the
Company), the atmosphere was not so grim. I find no threat in Morrill's remark and
the manner in which he made it.
4. Warnings and reprimands
The Company issued nine warnings or reprimands to various employees between
October 1, 1962, and March 19, 1963. Except for one of these, which was issued to
Obendorf, all were issued to members of the Local. Smart is the steward in the
punchroom. Hirschbiel is the chief steward, and Roose, it has already been noted, is
president of the Local. Gaff is vice president. Whether Sayles has held any union
office or engaged in union activities does not appear
It is alleged that five of the nine were issued because of employees' union activities
As we shall see, these were made the subject of grievances which were processed
pursuant to the contract between the Company and the Union. Presumably, the other
three were admittedly not issued because of such activities. These figures do not show
disparate treatment (if they were offered for that purpose). Neither do we know how
many employees were union members, and how many were not; nor the number of
_violations of company rules observed by management.
The analysis in this connection must include the reasons for the issuance of these
violation slips and the General Counsel's evidence to show that there was no valid
basis and that they were therefore prompted by the employees' union activities. We
can pass over quickly any suggestion, in the testimony that Obendorf's reprimand was
not handed to her but-that she was only told of it, that the four reprimands or warnings
not being litigated were not bona fide but were presumably (with no evidence of this)
issued to avoid apparent connection with union activities.
a. Smart
The first of the five violation notices was issued to Smart on October 2, 1962. It
recited "reneated verbal warnings concerning (her) visiting and bothering people who
are operating presses ...," and declared that the reprimand was now being issued
because she had interfered with Sayles' work. On the following day, Thompson
issued a memorandum to Smart, explaining the reprimand and declaring that it had
been given to her "in this specific instance" because of her arrogant attitude when
warned and because she was usually the one who started distractive conversations with
other employees. There followed on November 28 a letter to Smart from Jerry
Morrill, who confirmed-removal of the reprimand from Smart's file that day: he now
understood that she did not intend to "flaunt authority ," and he did not "care to take
it to court" or to arbitrate her grievance.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reserving for the present what may be said with respect to all of these notices, it is
clear that, while it was claimed on Smart's behalf that she did not deserve the
reprimand, there is no evidence that she or anyone else on her behalf questioned the
reference to repeated warnings. Nor did Smart deny her immediate supervisor's
testimony that she went from one employee to another, and that when he warned- her
of a reprimand if she did not stop, she challenged the Company to issue one; or
Cramer's testimony that he had himself previously talked to her about visiting during
working hours.
b. Hirschbiel
On October 12, Muhn and Ludwig, who is in charge of personnel, signed a report
headed "Disciplinary Interview with Virginia Hirschbiel on Thursday, October 11,
1962." This recited that she had been called to the personnel office, but before enter-
ing she stated that it was unfair and unjust to call her in without a union witness.
Informed that a witness was not necessary since she had been called in for disciplinary
reasons, she continued to insist on a witness, and stated that she would make no reply.
She repeated this with "constant interruption" of the interview. Muhn then declared
that she had been involved in "considerable contention" in her department, that other
employees had been upset with resultant disharmony and unpleasantness, and that
the Company would not tolerate further irritation by her; she was threatened with
dismissal. The report closed with the statement that a reprimand was being placed
in her file because of her "insubordination and arrogance" while the two company
representatives were "attempting to extend verbal discipline."
Despite all that was said concerning this item, we have no information concerning
the "contention" in which Hirschbiel had been involved, and no basis for judging
whether the intent to discipline, for which she had been summoned, and the remarks
made to her themselves constituted unlawful interference.
On October 12, Hirschbiel filed a grievance form under the existing contract, in
which she recited that she felt that the Company had been unfair when it refused to
let her have union representation to verify what was said when she was called into the
office. She had offered to check out, and said that she had done no wrong.
On the same day, Muhn issued a memorandum, in which he pointed out that she
had belligerently sought union representation without knowing why she had been
called in: She had been called in for disciplinary reasons, and the Company would
not deny representation as called for in the agreement. At one point, prompted by
the General Counsel, Hirschbiel testified that she had a grievance pending when she
went into the office, and that she had been told that the disciplinary action was about
the "grievance ... and many other things." But the testimony thereafter referred to
the grievance now before us and which arose out of the October 11 incident. She had
not been summoned in connection with any pending grievance, about which no more
was said at that time or at the hearing except for an attempt thereafter "to make the
record clear" and a leading question by counsel for the Union to the effect that she
had referred to the pending grievance. It is clear that Hirschbiel had not been called
in connection with a pending grievance; her statutory and contract right to repre-
sentation was inapplicable. The employee's right to representation when she pre-
sents a grievance is not violated when the employer calls her in for admonition or
discipline.
c. Sayles, Gaff, and Smart
On February 6, 1963, the Company issued warning notices to Gaff and Sayles,
charging them with leaving their place of work during working hours; and to Smart,
charging that in 1 day she had been similarly guilty six times and that two other
employees came to her place of work and talked with her. In an argumentative and
self-serving memorandum dated February 20, Jerry Morrill recited his own "fit of
irrationality" at a grievance meeting the night before in promising to remove the three
warning slips; but he declared that he would abide by his promise to "remove" the
slips although they would not be withdrawn from the files. (We need not concern
ourselves with the distinctions and explanation offered, which apparently reflected
further if still insufficient consideration ) Of interest is the reference to an admission
by Smart that she had left her work station.
Here again there is no denial of the stated reasons for issuance of the warning slips.
It is not only in connection with production that an employer may insist on employees
remaining at their machines. It was pointed out that there are also safety reasons.
Partisans will argue on the one hand that the removal of a warning notice or
reprimand from an employee's file indicates that it was issued without sufficient
reason ; on the other, that the Company did not want trouble or further.upset of its
employees. Aside from consideration of the Company's stated reasons for these with-
drawals as it admittedly declared that they meant little and that it did not want to go
ELECTRIC MOTORS AND SPECIALTIES, INC. 1441
to court over them, I shall not choose between these alternative arguments . Whether
these notices were withdrawn to avoid arbitration, as Jerry Morrill had declared in
connection with Smart's earlier reprimand, after "all benefited from this little experi-
ence," or because in these cases he was "persuaded [that] the other side [was] right,"
the revocations do not prove unlawful issuance. It may further be noted that even
an unwarranted reprimand is not per se violative; it must tend to interfere with pro-
tected concerted activities. Certainly this is not shown where it appears to have been
issued for sufficient and valid reason. Testimony by Gaff that nonunion employees
in the punch press department also had visited with each other is not helpful since we
do not know the circumstances in such cases or whether such visits were known to
the Company. Nor does an employee's friendly relations and conversations with her
supervisor at her machine, brought out to show absence of company animus on the
one hand and justification for talking on the other, warrant visiting with other
employees.
d. Roose-February 14
On February 14, 1963, the Company posted a general notice warning against post-
ing and removal of material from the bulletin boards without management's consent,
and warning that anyone guilty of this was subject to disciplinary action. What dis-
cussion then ensued, we do not know. But that Roose took some steps is apparent
from an undated handwritten note from Thompson appended to a copy of the notice,
as follows:
Betty: Sorry about the problem however if you had brought the first note to
our attention rather than removing it from the board I am sure we would have
handled the problem much quicker. Please consider this a warning to yourself
and others that we must enforce shop rules.
If Company action against an offender in such a case was warranted, it would not
be warranted against Roose in the absence of evidence that she was connected with
the alleged offense. To single out her and her group because she was president of the
Local, as she testified (although the note indicates otherwise), would be to penalize
them for their union activities in a situation not shown to be connected with the
Union, and would constitute interference with concerted activities. But the notice as
posted did not single out Roose or any member of her "group": it specifically cited
anyone who posted or removed material without approval. Only after Roose raised
the issue did Thompson refer to her removing the note in question and declare that
she should "consider this a warning" to herself and others that shop rules must be
enforced. As the general notice posted by the Company does not appear to have been
violative, the later reply to Roose was quite in order after she had identified herself
with the action taken contrary to shop rules.
e. Roose-February 20, 1963
On February 20, Jerry Morrill wrote to Roose in connection with her own employ-
ment . Reciting a telephone call the day before in which she had informed a supervisor
(not her own) that she would not be in that day, and pointing out that the absence was
not for a reason covered by the contract, it warned her of disciplinary action if in the
future such absence, previously not cleared with her immediate supervisor, resulted in
closing down a production line.
Roose testified that she had always, when about to be absent on union business,
cleared with her supervisor in advance. She had never called the plant before; she
spoke with her supervisor "ahead of time." Despite an unnecessary reference to the
Company's limited obligation in this respect, Morrill specifically stated that his con-
cern was-not- with absence for union business, but with her assumption of approval.
The Company did not here depart from either the contract or past procedure.
5. The decertification petition
Employee O'Fallon testified that at a meeting in Obendorf's home on November 19,
she and some 10 or 15 other employees signed a single sheet of paper. To this had
since been attached a second sheet, with a total of 54 signatures, and an acknowledg-
ment or affidavit by Boren on a third sheet, which recites that the signatures were
affixed between December 17 and 19 to a statement calling for decertification.
O'Fallon maintained that the statement, now at the top of the first page, was not there
when she signed. But there is no question that the meeting was called and signatures
obtained "to throw the . union out." (No attempt has been made to explain the
November-December variance or to argue any conclusion to be drawn from it.) The
three sheets, as a decertification petition, were filed with the Board on December 26.
770-076-65-vol. 149-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having entrusted Obendorf with apparent authority as its representative, the Com-
pany cannot divorce itself from, and is responsible for her efforts in connection with,
the decertification petition. Obendorf's was the second signature on the petition; Boren
signed first. To the extent that Obendorf encouraged signatures, holding the meeting
in her home, the Company itself encouraged signatures. It also appears without con-
tradiction that on or about December 21 Thompson was told that several employees,
including Obendorf, were "still trying" (there was earlier reference to undefined
attempts on December 3) on company time to get employees to sign the revocation
petition; and that the Company was permitting this while union supporters were not
allowed to talk on company time. Thompson's reply was that he thought it had
stopped and he would see what he could do to end it. This indicates actual company
knowledge of some of Obendorf's activities with respect to the decertification petition.
While the allegation is that Thompson encouraged, ratified, and condoned the solicita-
tion of signatures (not as the Company's brief has it, that he had to do with solicitation
of signatures), I rely not only on his failure to act on December 21 and the Company's
reliance on the petition in refusing to bargain in February; but also on Obendorf's
role and her status, which were fully litigated. Should the Company object to this
interpretation of the complaint and the evidence received, it could hardly claim the
extension , infra, of its defense to embrace a good-faith doubt, which is not alleged,
in support of its refusal to bargain.
Recognizing the argument which can be made on the Company's behalf, I neverthe-
less find that its indicated reliance on Obendorf and her status vis-a-vis other employees
on the job, noted supra, made her an agent of the Company, and that her activity in
connection with the decertification petition constituted company interference with
concerted activities. Admittedly the Company thereafter adopted the petition when it
cited it and the employees' interest in the pending representation proceeding and in
the independent union as the reason for its refusal to bargain.
C. The alleged violation of Section 8(a)(3)
Probationary employment does not allow discrimination in its termination. The
issue with respect to Parker, as in Pollack's case, infra, is whether his work as a
probationer was satisfactory or whether he was discriminated against because of union
activities.
The General Counsel has cited rule 24 of the Company's rules, and its provision for
warning prior to discharge for failure to meet production standards. But, unlike vio-
lations under the Act, it is not clear that the rights and the procedures available to
permanent employees may be claimed by probationers although precipitate action
may in some situations indicate discrimination.
On the other hand, no conclusion can be drawn in the instant cases from the fact
brought out by the Company that between October 1, 1962, and the latter part of
January 1963, the Company discharged four other employees in addition to Parker
and Pollack. That those other discharges were not, or are not alleged to be, dis-
criminatory casts no light on the issues here. While the conclusion might be drawn
that discharges are not unusual, the question of discrimination against Parker and
Pollack remains.
1. Parker
Parker worked as a probationary employee from December 3, 1962, to January 5,
1963. He testified that he signed a union card on his own time and gave it to Wolford,
another employee, during a work break on January 2; and that he did not tell anyone
about it.
According to Parker, Ludwig called him into his office on January 5 10 and told
him that Blocker, the supervisor, had recommended that he be laid off because he had
not put out enough work and because she had to admonish him about talking. While
he had been told that he was doing very good work, he had never been told of produc-
tion requirements or warned.
Ludwig, who does the actual hiring and firing, but who admittedly had no personal
knowledge of Parker's work or shortcomings, testified that he discharged Parker
because of his unsatisfactory work: poor production and not working at his post.
Whether in referring to Parker's poor production record, which he had discussed with
Thompson, Ludwig had in mind the absence record, which affected Parker's total
production, is not clear. "Not working at his post" appears to refer to the proven
absences, infra; "unsatisfactory" is all-embracing.
10 Here again is a grasping at straws: January 5 was not a regular payday But it
ended the calendar week. Parker was employed at the beginning of a calendar week
ELECTRIC MOTORS AND SPECIALTIES, INC. 1443
Despite the questions put to Thompson at the hearing concerning production
standards , it does not appear that these standards were improper or improperly applied
to Parker or Pollack. Presumably the General Counsel's investigation disclosed the
facts in this respect . He did not challenge the Company to produce figures to support
its conclusion , although they were available . 11 In Pollack's case, infra, figures were
testified to on both sides. Parker did not question Ludwig with respect to either of the
two reasons given to him . On the following Monday, Parker did go with his mother
to Blocker 's house and asked why she had recommended that he be fired . Her reply
appeared to be quite definite: she had nothing to do with ' it. It was less definite, and
possibly evasive , when she added that "it was Chet Ludwig-in his department he was
the one that had [you] fired." This did not settle the question of recommendation for
action by Ludwig. Blocker did not testify concerning this. That Ludwig has the
responsibility to discharge has already been noted . We shall soon see that Blocker
was not in fact pleased with Parker 's services . Ludwig further testified that he relies
on the supervisor 's report and the personnel file. It is not clear that Parker's poor
production stemmed from his absences . But if Ludwig relied on Blocker 's recom-
mendation , and the latter was based on Parker's absences , which were litigated even
to comparison with the attendance of others , the facts here support the discharge.
It is not necessary that the official who effects a discharge in reliance on the recom-
mendation of a supervisor have all of the latter 's information . We do not have an
instance of shifting of explanations which would warrant a finding that they were
pretextual.12
Wayne Morrill testified that Ludwig investigates , as he did in this instance , after a
supervisor 's recommendation for discharge , and that Parker was discharged on
Blocker's recommendation . Concerning Parker's production , Blocker testified that
his work was "reckless," and that he several times told her that he was unable to work
because of trouble with his back. The term "reckless" was not explained. On both
direct and cross -examination she was questioned more concerning his absences. Her
summary statements concerning them were supported by the Company 's timecards,
even to her testimony that, after several absences , Parker once stated that he had to
take his mother to the doctor. Whatever Parker's devotion , Blocker was clearly and
unfavorably impressed when he told her that he would give up the best job for his
mother.
It appears further that Parker's neighbor , Miller, worked on 2 days when Parker
himself reported that he was unable to get to the plant because of poor roads.Parker
testified that an inspector whose name he did not know but whom he referred to as
Smitty (presumably not Miller ); and another neighbor , Mrs. Keller, were also away
because of the road conditions . We do not know the details of their employment
history for any possible showing of different and unlawfully discriminatory treatment
accorded Parker. But evidence was received concerning Miller, and it indicates that
the roads did not prevent travel to work. Of a total of 168 hours 13 that he could have
worked, Parker was absent 25 1/2 . I rely on these figures and on the explanation by
Blocker, who impressed me as well informed and reliable , concerning the unsatis-
factory nature of Parker's services-even though she had thought that a pay increase,
which did not go through , might prove an incentive to Parker.
With reference to Parker 's testimony that Ludwig told him that Blocker reported
that she had to speak to him about talking , he stated further that he was allowed to
speak with - other employees in his department except Wolford, and that Blocker had
warned him not to speak in Morrill 's presence to Wolford , the only union member
"There is no basis in logic nor in authority ( cf. 3 Wigmore on Evidence , section 291)
for an inference contrary to the Company ' s testimony . While the court in N L R B. v.
Sam Wallwek , et al, d /b/a Wallick & Schwalm Company , 198 F 2d 477 , 483 (C A. 3),
cited the Trial Examiner ' s statement that the respondents had failed to adduce evidence
concerning their profit-loss position , the Intermediate Report ( 95 NLRB 1262, 1277)
makes it clear that the economic issue was there tested , with the employer refusing to
disclose certain records concerning its economic defense There is a marked difference be-
tween refusal to submit relevant evidence when challenged, and an omission of further
evidence when , a general statement is received without objection or challenge concerning
its accuracy Cf Roskam Baking Company , 142 NLRB 1173 . where the General Counsel
offered evidence which " tended to negate the Frespondent ' s] claim "
12 Cf N L R B v International Furniture Company , 199 F 2d 648 , 650 (C A 5)
13 This figure is based on five 40-hour weeks , less 4 days when the plant was closed To
the extent that absences were considered, we do not know what procedure was followed ;
no explanation was sought or offered for the delay of 6 working days between Parker's
last absence and his discharge.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the machine shop. Parker 's conclusion was that he could talk to others on company
time. But in an earlier statement he said that he was not allowed to talk to anyone
in the department except Wolford! Ignoring this confusion , it appears only that
Parker signed a union card on January 2, and there is no evidence of company knowl-
edge of this.
In touching all the bases while we wonder about any possible claim of company
knowledge , it may be said that, aside from the absence of close relationship between
management and Obendorf , previously noted, there is no other sufficient ground for
imputing her knowledge to Ludwig , who effected the discharge , or Blocker, who
recommended it. Wolford , the Union 's recording secretary , called by the General
Counsel presumably to show company knowledge , testified that about 5 minutes after
Parker gave her his union card , Obendorf , standing about 15 feet away, saw her hand
the card to Hirschbiel , the chief steward; Blocker was not mentioned at this point.
Hirschbiel later, without mentioning Obendorf, placed Blocker 10 to 12 feet away.
Aside from the question of imputation of Obendorf 's knowledge to the Company,
it has not yet been suggested that we assume that Obendorf ( or was it Blocker?)
knew that this was a union card and specifically Parker's. In fact, while pressing the
allegations of discrimination , the General Counsel's brief is silent concerning the
elements of union activities and company knowledge thereof. Bricks can indeed be
made without straw. But it is trifling with the Board's processes to base and thereafter
maintain allegations on speculation and hope.
Superimposed on all of this is the limited extent of Parker 's union activities, his
signing of a card, and the absence of evidence that the Company even believed that
he was engaged in such activities . If Blocker told him not to speak with Wolford
in Wayne Morrill 's presence , this is not alleged as a violation. If anything at all, it
may suggest a sympathetic attitude toward him on Blocker 's part, and it does not
show Blocker's or Morrill's knowledge or impression of union activities by Parker.
In fact, Parker signed the decertification petition approximately 3 weeks before this
discharge.
If more needs to be said, there is no claim of discrimination against any union
officer or any employee who was known to have engaged in union activities generally
or the processing of grievances . I have not overlooked 14 Hirschbiel 's testimony that
Blocker in March 1962 warned of a hard time for union officers, and threatened
possible loss of her job. Not alleged as a violation , this was presumably offered to
show Blocker's animus , or the Company 's. Hirschbiel has been the Union's chief
steward since the election held at that time, but there is no evidence of animus toward
her or that she has been given a hard time . It does not appear that Parker's discharge
was discriminatory.
2. Pollack
Pollack, also a probationary employee, worked from November 28, 1962, until
January 9 , 1963, when she was discharged. She was employed for exactly 6 weeks,
her last workday being January 8 . Although she testified that her production improved
from 500 to 795 stators , with as much as 811 at one time a few days before her
discharge , and that Martin , her supervisor , complimented her on the latter figure and
Cramer was pleased , it stands uncontradicted that Thompson worked with her to
see if the work could be speeded up although he testified that she was getting along
all right. Thompson testified that he would not call this "assisting" Pollack; but a
document in the latter's file, signed by Ludwig, declared that Thompson had worked
with her to assist her . If this appears to reflect on Ludwig's credibility , the fact is
that Pollack testified , as noted supra, that she was frequently assisted by Holmes.
On the afternoon of January 9, Cramer called and told her not to come in to
work that night. When she asked the reason , he said something about her record,
and told her to come in the next day. On January 10 Ludwig told her that they
were not satisfied with her production record. He and Cramer told her that they
expected 900 to 1,000 stators per day. Pollack had never before been told how
many she was expected to turn out , but was now told that she "wasn't being retained
because of [her] production."
One of the General Counsel 's witnesses , a longtime employee, testified that she
produced 1,000 stators on February 6, "That is considered tops." There is no sufficient
14 The objection to testimony which is remote, immaterial , or trifling is underscored by
the need to refer to it in making findings ; for, as when allegations are made without evi-
dence to support them, there is little restraint on claims that testimony has been over-
looked or ignored. Comparison can be made between the extent of analysis herein where
violation is found, and that required to show the insufficiency of proof concerning allega-
tions not sustained.
ELECTRIC -MOTORS AND SPECIALTIES, INC. 1445
basis for us to conclude whether the 1,000 quantity was reasonable for a probationer
of 6 weeks, or whether Pollack's production of some 800 was reasonable and in
fact acceptable.
With respect to company knowledge of any union activities engaged in by Pollack,
we cannot impute to the Company, Holmes' knowledge concerning the extent of her
interest in the Union. The knowledge of a rank-and-file employee is not to be imputed,
however possible direct transmission which has not been shown. Finding of company
knowledge that Pollack engaged in union activities cannot be based on Holmes'
questions as to what she had decided or how her father felt about the Union, or on
his statement that he would try to talk her out of it if she intended to join. Of like
quality is her statement to Holmes that she wanted to read a union leaflet which had
been distributed by union members. The futility of so much of this is underscored
by realization that discrimination is alleged, not against union officers or those who
distributed leaflets, but against two employees whose union activities were minimal.
Not to be overlooked (else, why brought out?) is Pollack's testimony that, as she
received the union card on her lunch hour one day about the end of December, her
supervisor went by and saw the card passed. Equal support for the General Counsel's
case or lack of it lies in the fact that in the intervening period of approximately 2
weeks before she was discharged Pollack did not give the signed card to anyone;
she testified that she signed it on January 5. As for Holmes' statement to Pollack
and her father that she had been discharged because of her intention to join the
Union, even if this could be attributed to the Company and found to be unlawful
interference, there is not even a suggestion to support the allegation of discrimination,
that Holmes was the Company's confidant or that he knew why Pollack had been
discharged. It has not been shown that Pollack's discharge was discriminatory.
D. The alleged violation of Section 8(aX5)
It is admitted that after a Board-conducted election the Union on October 31, 1961,
was certified as the exclusive collective-bargaining representative of the employees
in the following unit, which is an appropriate unit within the meaning of Section 9(b)
of the Act:
All production and maintenance employees of the Company employed at its Gar-
rett, Indiana, plant excluding professional and technical employees, plant and office
clerical employees, guards and supervisors, as defined by the Act.
It is further admitted, stipulated, or otherwise beyond dispute that the Company
and Union, on or about March 9, 1962, executed a collective-bargaining agreement
which expired on February 26, 1963; that on December 11, 1962, the Union demanded
that the agreements be reopened; that the Company replied on December 18, ex-
pressing its desire to negotiate changes in the agreement; that the certification petition,
supra, was filed with the Board on December 26, and was pending on February 5,
1963, when the Union renewed its demand by letter; and that on February 8 the
Company declared that it would be an unfair labor practice for it to engage in contract
negotiations while a representative proceeding was pending.
Ignoring the fact that the Company's reason referred to the petition which had
been filed since its reply of December 18, the General Counsel urges that the change
in the Company's position, from stated desire to unwillingness to negotiate, is "a part
of" the violation. The change was warranted if the reason was valid. If the reason,
i.e., the filing of the decertification petition, is without merit, there was violation in
the February 8 refusal to bargain, regardless of the Company's change in position.
Our issue is thus, not the change in the Company's position, but the validity of its
reason for refusing to bargain.
With issuance of the instant complaint, the decertification petition was dismissed
by the Regional Director on March 15, 1963, as he declared, "No question concerning
representation exists herein at the time" in view of the charges and complaint now
before us, which had been respectively filed and issued since the close of the repre-
sentation hearing.
Absent unusual circumstances, an employer must bargain with a certified union
for at least 1 year from the date of certification 15 With this said , we must distinguish
between bargaining during that year and maintenance of a collective-bargaining agree-
ment during its term, on one hand, and any obligation to negotiate for a new agree-
ment, on the,other. As the General Counsel pointed out, the Company's violative
course of conduct occurred at the end of the certification year. Here the contract
16 Ray Brooks v. N L R B, 348 U.S. 96.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was maintained until its expiration on. February 26, 1963, and was by agreement
extended on a day-to-day basis thereafter. The refusal was to bargain for a new
contract, not with respect to or under that which was expiring.
A material question at such a time is whether the union represents a majority. But
now we meet the point that in the face of its own interference, the employer may
not raise that issue. The Company's interference, found supra in connection with
the decertification petition, prevented a fair decertification or representation test, so
that it was estopped to question the Union's continued majority or to assert that a
question of representation existed. The Board's "restrictive" test of interference
with the "laboratory conditions" for an election. would warrant a setting aside of the
election under these circumstances.16 With the Company estopped to question the
Union's majority, the refusal to bargain was violative. A "coercive atmosphere" 17
had been engendered, and this prevented free action by the employees.
It is true that, faced with conflicting claims which give rise to a real question
concerning representation , an employer may not recognize one of them until rights
are determined under the procedures set forth in the Act.'8 Without equating the
filing of a decertification petition with a rival claim, we may regard the asserted
defense as a plea of good-faith doubt of the Union's majority. But such a defense
to a claim of recognition is not available to an employer who has prevented the free
development of conflicting claims and who therefore may not urge the existence of a
good-faith doubt.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations 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
of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist there-
from, and take certain affirmative action in order to effectuate the policies of the Act.
We have seen that the Company, by actively sponsoring the decertification petition
by its agent, Obendorf, and by condoning and ratifying it, refused to bargain collec-
tively with the Union, and thereby interfered with, restrained, and coerced its,
employees. I shall therefore recommend that the Company cease and desist there-
from and from any like or related conduct. We have also seen that, because of its
violation in connection with the decertification petition, the Company could not
question the Union's continued majority. But the Company's estoppel is quite different
from the right of employees to question and to have tested the Union's majority; and
this should be considered before a direction for continued recognition by the Company.
If but for the Company's estoppel to raise the question of the Union's continued
majority, the Company or dissident employees could press a petition for decertifica-
tion, it would be a punitive and, under the circumstances, an unjust denial of em-
ployees of the right to a new determination of bargaining representative and to direct
that the Company bargain with the Union for another year. The extent of the
Company's involvement with the decertification petition through Obendorf's connec-
tion does not warrant such a holding; we have noted O'Fallon's testimony that well
over two-thirds of the 54 signatures were affixed after the initial meeting called for
that purpose. The circumstances under which these were obtained are not before us
beyond the fact that the acknowledgment of the petition was executed by Boren, a
rank-and-file employee. There is no evidence that the signers generally repudiated
the petition or that they otherwise did not repudiate representation by the Union.
(This is not to suggest that they did repudiate the Union: the testimony did not cover
this.) It is not mere lapse of time which warrants an opportunity for the employees
to make their choice; but the indicated desire of a substantial number to disaffiliate
which, on the record here, may or may not have represented uncoerced action. An
election to be set by the Regional Director will provide the necessary laboratory
conditions for a free expression of opinion. Here, unlike the recent Oilfield Mainte-
19 Dal-Tex Optical Company, Inc., 137 NLRB 1782.
17 Cf. Bernhardt Bros. Tugboat Servace, Inc, 142 NLRB 851, where such an atmosphere
was held to bar recognition of one of two rival unions
18 Novak Logging Company, 119 NLRB 1573, 1574; Signal Oil and Gas Company, 131
NLRB 1427, 1433, affd. 303 F. 2d 785 (CA.5).
ELECTRIC MOTORS AND SPECIALTIES, INC. 1447
nance case,19 there is no question of repudiated contracts but as we have seen, of
bargaining for a new contract. We recall that, without claim of any earlier refusal
to bargain, the parties had passed the end of the certification year and had then.
come to the end of their collective-bargaining agreement, which extended beyond the
end of that year. Under these circumstances, while recommending that the Company
cease and desist from refusing to bargain and interfering with employees' rights, I
shall not recommend that it be directed to enter into further negotiations at this time.
Company, Union, and the employees will thus be left in the position which existed
at or about the end of the certification year and the expiration of the contract, and
opportunity will be provided to' decide the rights and obligations of all without denying
those of the employees particularly.
I shall recommend that, under the Board's "remedial power under Section 10(c)," 20,
the Board direct the Regional Director for Region 13, upon an appropriate petition,
to direct an election in the appropriate unit when he is satisfied that the effects of
the unlawful refusal to bargain and interference have been dissipated and determines
that a free and untrammeled election can be held. While Obendorf's status as agent
has been found, it is itself a narrow basis on which to superimpose a more extensive,
and what would in this case be a punitive, remedy. To deny the remedy would be
to ignore the interference with employees' rights; to direct immediate bargaining
would likewise be to ignore their right to change their representative at the end of
a reasonable period.
For the reasons cited in the subsection entitled "The alleged violation of Section
8(a)(3)," I shall recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge and failure to reinstate Parker and Pollack.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio & Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. All production and maintenance employees employed by the Company at its
Garrett, Indiana, plant, excluding professional and technical employees, plant and,
office clerical employees, guards and supervisors, as defined by the Act, constitute a
unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
3. The Union was on February 8, 1963, and prior thereto, the exclusive bargaining
representative within the meaning of Section 9(a) of the Act, of all employees in
the aforesaid unit for the purpose of collective bargaining. ,
4. By refusing, on February 8, 1963, to engage in contract negotiations with the
Union, and by actively sponsoring, condoning, and ratifying a decertification petition,
thereby refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit, the Company has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
5. By such acts, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
19 Oilfield Maintenance Co, Inc, et al, 142 NLRB 1384 Cf. also Quality Coal Corpora-
tion. et a7, 139 NLRB 492, modified as to remedy, 319 F. 2d 428 (C A. 7), where the
employer committed various violations including an attempt to cancel a continuing con-
tract without giving any reason I should think that in the instant case, with its limited
violation, the absence of evidence concerning the circumstances under which two-thirds
or three-fourths of the names were signed to the petition, and the employees' right to make-
a new choice of representative when the collective-bargaining agreement expired, the
Board will adopt the following language from the court's opinion in Quality Coal:
The Interest of industrial peace, a cardinal purpose of the Act, as well as its spirit
and intent, here require only that the employees involved be permitted to express
their existing choice concerning collective bargaining representation in an atmosphere
free from employer assistance to any union.
20 Checker Taxi Company, 131 NLRB 611, 625, where widespread violations of the Act
were found in a case where the representation proceeding was still pending. Cf. also
A. 0. Smith Corporation, Granite City Plant, 137 NLRB 361.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The Company has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company, Electric Motors and
Specialties, Inc., Garrett, Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the exclusive representative of all em-
ployees in the appropriate unit with respect to rates of pay, hours of employment,
or other conditions of employment, by actively sponsoring and condoning or ratifying
a decertification petition.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Upon request, bargain with the exclusive representative of the employees in
the appropriate unit, and embody in a signed agreement any understanding reached.
(b) Post at its place of business in Garrett, Indiana, copies of the attached notice
marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Di-
rector for Region 13, shall, after being duly signed by the Company's representative,
be posted by the Company immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps shall be taken
by the Company to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of this Intermediate Report and Recommended Order, what steps have
been taken to comply herewith.22
It is further recommended that the complaint be dismissed insofar as it alleges
violation of Section 8(a)(3) of the Act.
It is further recommended that the Regional Director for Region 13 be directed,
upon an appropriate petition, to direct an election in the appropriate unit when he
is satisfied that the effects of the unlawful refusal to bargain and interference have
been dissipated and determines that a free and untrammeled election can be held.
21 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Derree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
211n the event that this Recommended Order be 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor-Management
Relations Act, we hereby notify our employees that:
WE WILL bargain upon request, with the exclusive representative of all em-
ployees in the bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment, and embody in
a signed agreement any understanding reached. The bargaining unit is:
All production and maintenance employees employed by the Company
at its Garrett, Indiana, plant, excluding professional and technical em-
ployees, plant and office clerical employees, guards and supervisors, as
defined by the Act.
WE WILL NOT sponsor and condone or ratify a decertification petition.
KOLD KIST, INC. 1449
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
ELECTRICAL MOTORS AND SPECIALTIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Kold Kist, Inc. and Ice, Frozen Food Drivers & Handlers &
Cold Storage Warehousemen , Local 942, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Petitioner. Case No. 21-IBC-9134. December 8,1964
DECISION ON REVIEW AND
DIRECTION OF ELECTION
On September 15, 1964, the Regional Director for Region 21 issued
a Decision and Direction of Election in the above-entitled proceed-
ing. Thereafter, the Petitioner in accordance with Section 102.67 of
the Board's Rules and Regulations, Series 8, as amended, filed with
the Board a timely request for review of such Decision and Direction
of Election averring that substantial questions of law and policy were
raised with respect to the Regional Director's inclusion of employees
classified as "demonstrators" in the requested unit of production and
maintenance employees. The Employer filed a statement in opposi-
tion to the Petitioner's request for review. Thereafter, the Board, by
telegraphic Order dated October 8, 1964, granted the request for
review and stayed the election. The Employer resubmitted its state-
ment in opposition as its brief to the Board.
Pursuant to the provisions of 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 McCulloch and Mem-
bers Leedom and Brown].
The Board has considered the entire record in the case with respect
to the Regional Director's determination under review, together with
the briefs of the parties, and finds as follows :
The Regional Director, over the objections of the Petitioner,
included the demonstrators in the appropriate unit on the ground
that, among other things, they performed unit work for substantial
periods of their working time and therefore shared a community of
interest sufficient to require their inclusion in the requested unit.
We disagree.
149 NLRB No. 145.