Elliott-Williams Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1242 (N.L.R.B. 1964)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten , coerce, or restrain The Kroger Co., Ace Sign Erection
and Service Corp ., Earl E . Bright, Inc., Service Products , Inc., or any other
person engaged in commerce or in an industry affecting commerce for any of
the objects set forth in the preceding paragraph.
COLUMBUS BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
LOCAL UNION No. 683, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL UNION # 98, SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL UNION # 200, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL #423, INTERNATIONAL HOD CARRIERS ', BUILDING AND
COMMON LABORERS ' UNION OF AMERICA , AFL-CIO,
Labor Organization.
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 or members may communicate directly with the Board 's Regional Office,
Transit Building, Fourth and Vine Streets, Cincinnati , Ohio, Telephone No.-381-1420,
if they have any questions concerning this notice or compliance with its provisions.
Elliott-Williams Co., Inc. and Sheet Metal Workers' Interna-
tional Association , Local 503, AFL-CIO. Case No. 25-CA-1795.
November 30, 1964
DECISION AND ORDER
On March 31, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof. The Gen-
eral Counsel filed ' a brief in support of the Trial Examiner's
Decision.
149 NLRB No. 107.
ELLIOTT-WILLIAMS CO., INC. 1243
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 [Members Fanning, Brown, 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, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner with the following additions and
modifications.
1. Like the Trial Examiner, we find that the employees promoted
by Respondent to positions as group leaders were not possessed of
supervisory authority. While these employees did have the author-
ity to recommend wage increases, the record demonstrates that such
recommendations would not be acted upon favorably by the Respond-
ent unless and until the Respondent had made an independent inves-
tigation and determination of whether the recommended increases
were merited . The group leaders, therefore, could not make effective
recommendations within the definition of Section 2(11) of the Act .2
The record demonstrates that their assignment and direction of work
was of a routine nature and did not require the exercise of independ-
ent judgments Having found the group leaders to be employees
within the meaning of the Act, we affirm the Trial Examiner's con-
clusions that Respondent's conduct as directed against group leaders
Westfall, Eldridge, and Hobbs, among others, was violative of Sec-
tion 8(a) (1) and* (3) of the Act. ,
2. We further find, in agreement with the Trial Examiner; that
employee Davis was authorized by the Respondent to engage in
unlawful activity intended to dissipate the Union's majority for the
purpose of providing the Respondent with what it apparently deemed
1 The Trial Examiner concluded that the Respondent 's conduct was unlawful under
Section 8 ( a) (1), (3), and ( 5) of the Act . We are in agreement -but note that, on
July 24 , 1963, the Board issued its Decision and Order in a prior case involving the
parties hereto, finding therein that the Respondent had violated Section 8 ( a)(1) and (5)
of the Act. Elliott-Williams Co., Inc., 143 NLRB 811. The events complained of in the
Instant case follow so closely in point of time those actions of Respondent found to be
violative of the Act in the prior case that it becomes obvious, and we so find, that the
conduct held by the Trial • Examiner herein to be unlawful must be viewed as but a con-
tinuation of the Respondent 's overall design to avoid bargaining in good faith with the
Union. We do not, therefore, regard the Respondent ' s conduct which is unlawful under
Section 8(a) (5) In the Instant case to be violations of the Act which are separate and
distinct from those actions which we held to be violative of Section 8(a) (5) in the prior
case Having so found, "Respondent's Request for Opportunity To Show Contrary to
Trial Examiner's Findings . which Findings Were Based on Material Facts Not Appearing
in Evidence in the Record" is hereby denied. -
2 The Santa Fe Trail Transportation Company, 119 NLRB 1302, 1306.
See Angello C. Scarullo , et al., d/b/a Legion Utensils Company, 109'NLRB 1327, 1339.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be a proper reason for refusing to bargain with the Union. The
record is replete with testimony which when viewed in its totality is
more than sufficient to establish Davis' authorization. For example,
Davis testified that the Company knew nothing of his endeavors with
respect to the petition of June 18, 1963, which stated, in effect, that
those who subscribed thereto no longer had any interest in the Union.
Davis contended that if the Company found out he was involved,
"... I probably would have lost my job." Mrs. Elliott, vice president
of the Company, testified, however, that she did know about the
petition because : "Well, Floyd Davis brought it to me." There-
after, on August 17, 1963, Davis berated Westfall, a union committee-
man, in the presence of Mrs. Elliott who, rather than disavowing
Davis' actions, instead joined with him in this conduct. Further,
Davis, who was not a supervisor, on the same date, informed Eld-
ridge, a union committeeman and over whom Davis had no authority
whatsoever, that Eldridge was discharged and that he should pick
up his check. Davis also verbally attacked Committeeman Hobbs
because of the latter's union activity in the presence of Mrs. Elliott
who stood by silently. Hobbs also testified that, in September 1963,
Davis offered him $300 to leave Respondent's employ; and when
Hobbs asked Davis to get the money, Davis, a short time thereafter,
stated that "they" would not go over $200. In addition, Super-
intendent Ross, an admitted supervisor, told Hobbs that Davis had
been paid a large amount of money. Hobbs testified that Ross stated
that the purpose of the payment was: "To get rid of Westfall, Phil
Eldridge and myself." Ross further stated, according to Hobbs, that
"... Davis still had $200 coming to him, that if Phil did not return."
Viewing all of this and other testimony in the record in the aggre-
gate, we cannot reach any conclusion other than that Davis' anti-
union conduct was authorized by the Respondent.
3. Contrary to the Trial Examiner, we find that employees West-
fall and Eldridge, who were constructively discharged by the
Respondent as a result of the latter's constant harassment of both
men, were validly offered reinstatement to their former positions by
the Respondent. Eldridge had specifically stated to Mr. Elliott,
president of the Company, that he would not accept a prior offer of
reinstatement without assurance that the harassment to which he had
been subjected would be discontinued were he to return to work. On
September 24, 1963, Elliott wrote to Eldridge that the Company
agreed to the "conditions" imposed by Eldridge. Eldridge made no
reply. No more bona fide offer of reinstatement could, in our opinion,
have been made. Westfall received an unconditional offer of rein-
statement which he apparently declined because he already had
ELLIOTT-WILLIAMS CO., INC. 1245
accepted another position 4 Respondent also made a second uncon-
ditional offer of reinstatement to Westfall . Westfall did not reply.
Unlike Eldridge, at no time did Westfall impose any conditions
under which he would accept reinstatement . Respondent 's offers
were, on their face, unconditional ; and, in view of the fact that
Respondent accepted the conditions imposed by Eldridge, there is no
reason to believe it would not have done so with respect to Westfall
had the latter imposed similar conditions . It is plain that Westfall,
like Eldridge , rejected the offers of reinstatement for reasons unre-
lated to the absence of any expressed assurance against further
harassment or to any belief that the offers were not made in good
faith.5
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner, and orders
that the Respondent, Elliott-Williams, Co., Inc., its officers, agents,
successors , and assigns , shall take the action set forth in the Trial
Examiner's Recommended Order, with the following modifications :
1. Substitute for paragraph 2(b) of the Recommended Order the
following :
"(b) Make whole Ronald Westfall and Philip Eldridge for any
loss of earnings they may have suffered by reasons of the discrimina-
tion against them, as set forth herein."
' Respondent 's letter to Westfall of September 11, 1963, announced receipt of the
charge herein and stated : "As far as we are concerned , you voluntarily resigned your
employment with this company. However in order to avoid the costs of a trial and any
misunderstanding , we are hereby stating that you may return to work for the company
immediately , and also you will maintain your same seniority and rate of pay." With
respect to this offer which he rejected , Westfall , who had obtained other employment after
his termination at Respondent 's plant, testified that the reason for its rejection was that:
"I didn't know right at the time, I didn't actually want to go back, but I figured to reply
to them in case I did."
5 Inasmuch as Respondent 's offers of reinstatement to Eldridge and Westfall were valid
ones , we shall modify the remedy recommended by the Trial Examiner to the extent that
Respondent need not now reinstate these employees but that Respondent shall make
Westfall and Eldridge whole for any loss of earnings they may have suffered by reason
of Respondent 's discrimination against them by paying to each a sum of money equal to
the amount each would have earned from the date of his constructive discharge through
the date on which he received Respondent 's unconditional offer of reinstatement, which
dates are not set forth in the record, but which offers were mailed on September 11 and 24,
1963, respectively , less net earnings during said period. Backpay with interest at the
rate of 6 percent per annum shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 298 , and Isar Plumbing & Heating Co ., 138 NLRB 716.
Member Jenkins would find , as did the Trial Examiner, that the Respondent was obli-
gated to assure both Eldridge and Westfall that they would not be harassed if they re-
turned to work. As such assurance was never given Westfall , he would find that Re-
spondent's offer to him was not a valid one. See California Lingerie, Inc., 129 NLRB
912, 914. For this reason , he would adopt the Recommended Order of the Trial Examiner
as to this employee.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute for the second substantive paragraph of the notice
the following : -
WE WILL make whole Ronald Westfall and Philip Eldridge
for any loss of pay they may have suffered as a result of the
discrimination practiced against them.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding involves a complaint 1 issued pursuant to Section 10(b) of the
National Labor Relations Act, as amended, herein called the Act, heard before Trial
Examiner Joseph I. Nachman at Indianapolis, Indiana, on December 18 and 19,
involving allegations that Elliott-Williams Co, Inc., herein called the Company or
Respondent, violated Section 8(a)(1), (3), and (5) of the Act by specified acts of
interference, restraint, and coercion; by constructively discharging two employees;
and by refusing to bargain with Sheet Metal Workers' International Association, Local
503, AFL-CIO, herein called the Union or Local 503. The General Counsel and
Respondent were represented at the hearing. All parties were afforded full oppor-
tunity to be heard, to adduce pertinent evidence, to examine and cross-examine wit-
nesses, and to argue orally on the record. Oral argument was waived. Briefs
submitted by the General Counsel and by Respondent have been duly considered.
Upon the pleadings, stipulations, evidence, and the entire record in this case, includ-
ing my observation of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT 2
I. THE UNFAIR LABOR PRACTICES ALLEGED
A. The facts
1. Background
On July 24 the Board issued its Decision and Order (143 NLRB 811), in the earlier
case involving Respondent, adopting (with a minor exception not here material) the
findings, conclusions, and Recommended Order set forth in the Intermediate Report
of Trial Examiner Henry S. Sahm, issued by the latter on April 16. In that case it
was found that Respondent violated Section 8(a)(1) of the Act by (a) threatening
its employees with reprisal if they engaged in union activities; (b) coercively inter-
rogating employees; (c) granting wage increases and other economic benefits to
induce employees to disavow the Union; (d) threatening elimination of employee
benefits if they selected the Union; (e) offering to bargain directly with its employees;
and (f) polling its employees as to their preference between the Union and another
labor organization; and also violated Section 8(a)(5) of the Act by refusing on
August 13, 1962, and thereafter, to bargain with the Union as the representative of
the employees in the appropriate unit. The order recommended by Trial Examiner
Sahm, and adopted by the Board, directed Respondent to cease interfering with,
restraining , or coercing its employees from refusing to bargain collectively with the
Union, and affirmatively directed Respondent to bargain with the Union on request.
It should be noted that among the witnesses who testified on behalf of the General
Counsel in the aforementioned proceeding were employees Hobbs, Westfall, and
Eldridge. The three employees mentioned were members of the Union's negotiating
committee, and the two last mentioned are the alleged discriminatees in the instant
case.
1 Issued November 5 upon a charge filed August 19 and an amended charge filed Septem-
ber 9. Unless otherwise indicated, all dates mentioned are 1963
2 No issue of commerce or labor organization is involved. The complaint alleges and
the answer admits facts which establish both of these elements. I find the facts as
pleaded . Also, the complaint alleges, the answer admits, and I find that all production
and maintenance employees at the Company's Indianapolis, Indiana, plant, including plant
clerical employees and field assemblers and service employees, but excluding all office
clerical employees, draftsmen, professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining. The
Board has asserted jurisdiction over Respondent and has found the aforementioned unit
to be appropriate. See Eliott-Williams Co., Inc., 143 NLRB 811.
ELLIOTT-WILLIAMS CO., INC. 1247
2. Identity of the principal actors
The facts will present themselves in better perspective if the cast of characters
involved in the events are first identified . James H. Elliott and his wife, Ruby Elliott,
are president and vice president , respectively , of Respondent . Thomas D. Ross and
James McClure were , during the relevant period , or a portion thereof, production
manager and shop foreman, respectively .3 Jack H . Rogers is Respondent 's counsel
who participated in some of the events hereafter referred to. Floyd Davis, an
employee of Respondent , likewise actively participated in many of the events hereafter
detailed . The complaint alleges that he acted with respect to the matters involved as
an agent of Respondent . This is denied by the answer , and the issue raised will be
disposed of in the course of this Decision . Ronald Westfall , Philip Eldridge, and
Van Hobbs are employees of Respondent It is uncontroverted that these three were
the spearhead of the union movement in the plant ; were the employee members of the
Union 's negotiating committee ; and testified at the hearing before Trial Examiner
Salim . Respondent contends that Westfall , Eldridge, and Hobbs, as well as Davis,
were , since mid-June, supervisors within the meaning of the Act , while the General
Counsel contends they were never invested with supervisory authority . That issue
likewise will be disposed of in the course of this Decision . Ray Coyle is business
agent of Local 503, and Frank Elbrink is an organizer for the International with which
Local 503 is affiliated.
3. The current facts
Shortly after Trial Examiner Sahm's Intermediate Report issued on April 16, Coyle
and his negotiating committee called on Elliott and demanded bargaining. Elliott
refused, saying it was his purpose to litigate the matter before the Seventh Circuit.
On or about June 11, Davis engaged Westfall , Eldridge, and Hobbs in conversation
and suggested a petition to be signed by the employees disavowing the Union as their
bargaining agent . Davis asked them if they were not "sick and tired" of the things
Coyle was "pulling on you ," and stated that Coyle was not doing anything for them
and was responsible for the men not getting any raises. Davis also stated that if the
men would sign a petition he had prepared , they could get rid of Coyle and make
more money. After reading the petition which Davis had, Westfall decided to rewrite
the document , and after doing so, at Davis' request , circulated it among the employees
and obtained the signatures to it of all 21 employees in the plant . The petition, as
redrafted by Westfall, read:
We the undersigned, as of June 11, 1963 , no further desire at this time for the
AFL & CIO to be the bargaining agent of the Elliott Williams Co., Inc.,
employees.
Davis admitted that he spent about 2 hours discussing the proposed petition with
Westfall , Eldridge, and Hobbs; that this discussion took place in the plant during
working hours; and that he prevailed on Westfall to circulate the petition among the
employees "because they weren 't too friendly towards me, because they knew I was
against it [the Union] ." Westfall spent about 3 hours circulating the petition among
the employees and then gave it to Davis who went with it toward the Elliotts ' office.
In about 15 minutes Davis returned and told Westfall that the petition "looked all
right to Mr . and Mrs. Elliott ." Davis also admitted that he exhibited a copy of the
petition to Superintendent Ross and told the latter "these boys is about ready to, you
know, quit this union thing, maybe we can get the show on the road and get settled
down around here now." Mrs. Elliott admitted that Davis gave her a copy of the
petition after it had been signed by the employees , and she posted it by the timeclock.4
3 These facts are alleged in the complaint and admitted by the answer.
s These findings are based on the composite of the credited testimony on this subject by
Westfall, Eldridge, and Hobbs, and on the testimony of Davis and Mrs. Elliott which, to
that extent, I regard as in the nature of an admission against interest. As hereafter set
forth, I find that in the circulation of the petition, and with respect to other matters
hereafter referred to, Davis acted as agent of Respondent. Davis claimed that the peti-
tion was his own idea ; that it was not instigated, fostered, or promoted by any manage-
inent official ; that he purposely withheld from management all information about the mat-
ter because "I would have lost my job if they knew I was doing something like that . . . .
I do not credit these denials by Davis. It'is simply incredible that Davis could have spent
2 hours discussing this matter with Westfall, Eldridge, and Hobbs, and that Westfall
could have spent 3 hours circulating the petition among the personnel, consisting of 21
employees, all during working hours, without the facts having been known to management.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The alleged supervisory status of Westf all, Eldridge, and Hobbs
Later the same day, but after the aforementioned petition was circulated among
and signed by the employees, Superintendent Ross addressed a meeting, attended by
certain employees, in his office. In addition to Ross, those in attendance were West-
fall, Eldridge, Hobbs, Davis, and Bob Henry.5 According to Westfall, Eldridge, and
Hobbs, they attended this meeting in Ross' office at the direction of Davis 6 Ross
told the assembled group that a so-called Card-O-Dex system, designed to speed up
production, was being installed which would require moving Shop Foreman McClure
out of the shop and into the office, and that the employees present were being made
"group leaders," one in each of the several departments in the plant; 7 that this would
mean more money for the group leaders because of the additional responsibilities;
that the group leaders would be in charge of their respective departments and respon-
sible for the men under them; that all the group leaders would have the same authority;
that they were not authorized to hire, fire, or grant wage increases, but that they could
recommend a merit increase of 10 cents for their men 8 As to the statement by Ross
that the change would result in more money for the group leaders, Davis asked when
the increases would be effective. Being unable to answer the question, Ross tele-
phoned Elliott and then advised the group leaders present that the increases would be
effective the following week. The men protested this was not soon enough Ross
then called Elliott again and reported back that the increases would be effective that
day. As a result, the group leaders immediately received wage increases from $1.95
to $2.15 per hour.9 About the same time Elliott put into effect a general wage
increase to all employees.'0 At the group leaders' meeting, Westfall recommended a
wage increase for one employee in his department and was told it would be granted.
Apparently this was part of the general wage increase granted to all employees about
that time. There is no evidence that Westfall made any other recommendation for
a wage increase. Also at this meeting, Eldridge commented that the duties outlined
for the group leaders were no different than the duties they had theretofore performed.
Ross laughed and said, "You were never called a group leader "
There is no evidence that the group leaders ever granted an employee time off or
gave a reprimand or reward to anyone in his department. Although employees were
at times moved from one department to another, this was done by Ross or McClure,
who made the decision what employee was to. be transferred and where. Admittedly,
the group leaders spent virtually their entire time performing the same work as the
other employees in their department There is no showing that the group leaders
inspect the work of other employees, or report deficiencies in their work. While the
payroll in evidence shows that considerable overtime was worked, there is no evidence
that the group leaders made the decision to work overtime, or what employees should
do so. Aside from the meeting with Ross on or about June 11, there is no showing
that there were any meetings of the group leaders, or meetings with management
personnel of higher authority. It does appear that the group leaders would get from
the office the orders for the week and from this they would know and tell the men in
their department what finished components would be required of them for those
orders. There is no showing that this work required the exercise of independent
judgment, or that it was other than routine.
6 Henry was found by the Board in the prior proceeding to be a supervisor.
9 Davis did not deny this.
7 The departments, and the employees assigned as group leaders in the respective de-
partments were as follows: doors, Westfall ; walls and posts, Eldridge ; tops and bottoms,
Hobbs ; lumber and crating, Davis, metals, Henry, and shipping and receiving, Dinkins
The record is silent as to the presence of Dinkins at the meeting referred to.
8 Davis testified that the group leaders were told they had the authority to fire Elliott
testified that the group leaders could not fire. As set forth in a subsequent portion of
this Decision, I do not credit Davis' testimony generally, and I particularly reject his
statement that the group leaders were given authority to fire.
9 Ross did not testify, and Elliott did not deny that he had such conversations with
Ross. The findings set forth above are based on the uncontradicted and credited composite
testimony of Eldridge, Westfall, and Hobbs.
10 According to Elliott, the wage schedule he then put into effect was a starting rate of
$1.60, with a 5- cent increase each 30, 60, and 90 days, and after that a merit increase of
10 cents to a maximum of $1.85. The scale for group leaders was $2 15. Elliott admits,
however, that Group Leader Henry was then earning $2.90, and employees Bobby Ford
and John Ford were then given increases of 15 cents , making their rate $1.90.
ELLIOTT-WILLIAMS CO., INC. 1249
5. The alleged bargaining on August 16, and the refusal to bargain thereafter
On July 24, the Board issued its Decision and Order in the earlier case (143 NLRB
811) adopting, with one exception not here material , the findings , conclusions, and
recommendations set forth in the Trial Examiner's report, as well as his Recom-
mended Order. By letter dated July 31, Union Business Manager Coyle requested
that Respondent bargain in accordance with the Board's Order. By letter dated
August 7, Attorney Rogers advised Coyle that Respondent "is in compliance with
the . Board's Order . . . [and will] bargain as you have requested." August 16
was fixed as the date for the first meeting. Preparatory thereto, Coyle advised Rogers
that it would be necessary for Westfall, Hobbs, and Eldridge to be excused from work
on August 16, so they, as members of Union's negotiating committee, might attend the
bargaining session, and Rogers agreed to make necessary arrangements." As agreed,
the parties met on Friday, August 16, at Rogers' office. Present for the Company
were Rogers and Mrs. Elliott. Present for the Union were Business Manager Coyle,
International Representative Elbrink, and negotiating committee members Westfall,
Hobbs, and Eldridge. The Union presented its contract demands. Rogers then
requested, and the Union agreed, that there be an adjournment to August 26, so that
in the interval he could examine the Union's proposals and prepare Respondent's
proposals. At the August 16 meeting, neither Mrs. Elliott nor Rogers raised any
question about the supervisory status of Westfall, Hobbs, or Eldridge, or about the
propriety of their attendance at said meeting as negotiators on behalf of the Union.
In fact, according to the record, Mrs. Elliott made no comment whatever during the
meeting. The meeting scheduled for August 26 was never held, the negotiations
admittedly having been called off by Respondent 12
Following the meeting of August 16, a series of events are alleged by the General
Counsel to have occurred, which require extensive discussion The evidence with
respect to these incidents is so conflicting that proper presentation requires a r6sum6
of the evidence offered by both parties.
6. Events after August 16
a. The General Counsel's case
(1) Events on August 17
(a) Westfall
On August 17,13 Westfall arrived at the plant about 7:40 a in After parking his
car, he noticed Davis and another employee standing on the loading dock at the rear
of the plant. As Westfall walked by, Davis called him an "SOB," said he would
crush Westfall's skull, and asked how Westfall could "do such things to Mrs. Elliott."
Westfall continued into the plant without saying anything to Davis and, as the 8 a.m.
starting time had not yet arrived, began reading a newspaper. Davis followed
Westfall into the plant, and kept repeating "what was the big idea, Westfall." At this
point Mrs. Elliott approached Westfall, shoved him, and said "Yes, what's the big
idea, you big bully. You got a lot nerve coming back in here today." She also
stated, "Look, here is you big union man, here, look at him, won't even hold his head
up and look at me to talk to me. He's a real big man. He and none of the others
would even stand up when I came in down there to the meeting we held with them."
Mrs. Elliott then called Westfall "a big fat slob," hit him with her fist and pushed
him, saying, "come on , fight me, you big bully, I am not afraid of you." Mrs. Elliott
then accused Westfall of bullying Eldridge, that "little puny, skinny, slimy runt."
"This finding is based on the credited and uncontradicted testimony of Coyle. Al-
though Rogers testified as a witness, he did not contradict Coyle's testimony in this regard
L According to Coyle, Rogers telephoned a few days after the August 16 meeting and
canceled the meeting set for August 26, saying he saw no purpose in negotiating in view
of the pendency of the current charge (filed August 19). Rogers, when he testified, did
not deny that he made the statement attributed to him by Coyle Elliott admitted that he
directed Rogers to cease negotiating with the Union , and that he did so because he was not
convinced that the Union represented a majority. I find it unnecessary to make a finding
as to the reason for the termination of negotiations . That they were terminated is ad-
mitted The only question is whether the termination was legally justified-an issue
hereafter dealt with
13 This was Saturday which is a normal workday at Respondent's plant.
770-076-65-vol. 149-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westfall made no reply to Mrs. Elliott, but continued to read his newspaper. Mrs.
Elliott then went to her office and returned with Elliott who told Westfall to "Get out
there and get to work," that he wanted the door Westfall had been working on
finished that morning. Westfall protested that the 8 a.m., starting time had not yet
arrived, but Elliott insisted that he start work immediately and began pushing Westfall
toward his work station, saying if Westfall did not want to work he should get out.
Westfall made no comment, but left the plant premises.
(b) Eldridge
On August 17, Eldridge arrived at the plant premises about 7:30 a.m., and noticed
the Elliotts' car in the parking lot, although it was unusual for the Elliotts to be at the
plant that early. After packing his own car, Eldridge started across the street to get
coffee, but observed Mrs. Elliott, who was standing on the loading dock, make some
motions toward the inside of the building. Davis then came out of the building and
approached Eldridge saying, "I am sorry, but you don't work here any more. You
are fired and your check is in the main office." 14 Eldridge then went to the dock
area where Mrs. Elliott was standing, and told her he understood he was fired and if
that was true he wanted his check. Mrs. Elliott replied, "Your check is in the front
office if you think you would like to get it." Eldridge went through the plant, into
the office reception area, and then into Elliott's private office where he repeated the
statement that he understood he was fired and wanted his check. Elliott thereupon
asked Eldridge, "What did you think you were pulling?" and "What did you mean by
going downtown yesterday?" Eldridge replied that he was not trying to pull anything
and that he went down to negotiate a contract. Elliott then stated that no union
would come into the plant, and if it did he was going to leave and take his money with
him. Eldridge again stated that if he was fired he wanted his check. Elliott replied,
"You are not fired, but I am going to get all three of you guys .... You can go back
to work anytime you want to if you think you can work under conditions you are
going to work under." At this point Mrs. Elliott, who had not been in the office
during the earlier portion of the conversations, entered and called Eldridge "a scrawny
little lying rat " Elliott began punching his finger into Eldridge's chest saying, "I am
going to get even with you." At this point Davis entered the office and asked Mrs.
Elliott if she had Eldridge's check. Mrs. Elliott thereupon threw the check on the
floor and said to Eldridge, "Pick it up like you always do, you scrawny little scummy
rat." Eldridge said nothing, picked up the check, and left the premises.
(c) Hobbs
Hobbs arrived at the plant on August 17 about 7:50 a.m., accompanied by employ-
ees John and Bob Ford. Davis came toward them and told Hobbs that he (Hobbs)
was not "going to work that day." Hobbs nonetheless started into the plant, but Davis
physically blocked the way and told Hobbs that he (Hobbs) had "done the Elliotts
dirty by going down to negotiate " Hobbs, in a loud voice, asked Mrs. Elliott, who
was standing on the dock about 15 feet away, three times whether he (Hobbs) was
fired. Mrs. Elliott made no reply. Hobbs then left the premises, saying, "If this the
way you want to play I will go to the Labor Board."
When Westfall, Eldridge, and Hobbs left the plant on August 17, each went to a
restaurant operated by Eldridge and telephoned Coyle. From there they went to the
union hall where the incidents of the morning were discussed with Coyle. The latter
telephoned Rogers, informed him of the events at the plant earlier that day, and con-
cluded by saying that the three employee members of his negotiating committee had
been "rousted" out of the plant, and that he "didn't think it was negotiating in good
faith." Rogers replied that he had told the Elliotts the preceding evening that events
of this nature must not occur; that he would communicate with the Elliotts and call
Coyle back. In a short time Rogers called and told Coyle "that he thought he had
Mrs. Elliott calmed down where she wouldn't cause any more trouble," and that the
men could now return to work. Coyle suggested that because of the earlier events
the men were in no condition to work that day, but would report for work Monday
morning, August 19. Rogers agreed.15
14 Friday is the normal payday, but as Eldridge was at the negotiation meeting the pre-
ceding afternoon, he did not receive his check at the usual time. Why Westfall did not
go for a check is not disclosed by the evidence.
's Rogers did not deny that this conversation occurred or the statements attributed to
him by Coyle.
ELLIOTT-WILLIAMS CO., INC. 1251
(2) Events after August 17
(a) Westfall
After Westfall started work on the morning of August 19, he was engaged in con-
versation by Elliott who stated, in substance, that he (Westfall) had "pulled a silly
thing"; that he had planned to make Westfall shop foreman, but that Westfall had
thrown it all out the window, and added, `Besides that you are not even going to be
working here any longer, I am going to get rid of you ...." Elliott also told Westfall,
"I want you to bring in you[r] bowling shirt .... Nobody likes you, they don't want
to bowl with you." 16 Shortly thereafter, Mrs. Elliott, who normally works in the
office,1T set up a temporary desk in the plant, about 8 to 10 feet away from Westfall,
and from which point she could observe virtually all operations in the plant. Mrs.
Elliott had never done this before. Her desk in the plant was maintained at least
until September 3, and Mrs. Elliott spent virtually the entire workday at this desk.
Every day until Westfall left the plant on September 3, as hereafter related, she made
side remarks to him while he was at work, such as "I bet you cheat at cards"; "I bet
you cheat on your wife"; "I bet you cheat at everything you do"; "You ought to have
your head examined"; "I think you are crazy."
Also on August 19, about an hour after work began, Elliott, accompanied by Davis
and Foreman McClure, came to Westfall's work area and told the latter that Davis
had reported that he (Westfall) was throwing away usable lumber. Davis interjected
to state that Westfall had on a number of occasions complained to Superintendent
Ross that specially cut pieces of lumber were missing, that he (Davis) had to recut
them, and the missing lumber would later be found on the scrap truck. Davis claimed
that employee John Luke had observed Westfall throwing such lumber away several
times. Westfall denied these accusations. However, the following day Westfall was
given a written reprimand, the first he had received in the 4 years and 9 months he
worked for Respondent. On September 3 Westfall was given another reprimand
allegedly for "work error." Is
During the last week of August, Davis told Westfall that he (Westfall) was going
to be fired; that he would be "fired for fighting on company property." Davis also
said that he and employee John Luke were to take care of that, and that in the same
way they would take care of Eldridge and Hobbs. Davis further stated that he, and
apparently Luke, had been paid "good money" to get rid of the aforementioned group
and that they could not back out.
Westfall's last day of work was September 3. Shortly after starting work he sought
an interview with Superintendent Ross and told the latter that he could not work there
any longer and wanted to quit and get his vacation pay. Ross said he would look into
the matter and shortly thereafter told Westfall that he would be paid for his vacation
time and could leave whenever he wished. His checks were brought to him and he
left the plant about noon of that day. He has not since worked for Respondent.
(b) Eldridge
After the events of August 17, as above stated, Eldridge also reported for work on
August 19. Although Eldridge had received no reprimand in the 7 years he worked
for Respondent, he was given a reprimand on August 26 and another on August 29.19
During the day of September 3, after Westfall had quit work, Mrs. Elliott set up her
temporary desk near Eldridge's work station in such a way as to observe him at all
times. During that afternoon Davis approached Eldridge at the latter's place of
work, and asked Eldridge why he did not "do like Westfall and walk out and quit,"
and that if he would do so, he (Eldridge) would be given "a good recommendation."
Eldridge replied that he saw no reason to quit. Davis then said that Eldridge would
"quit one way or the other"; that he "would either walk out or get carried out."
16 The Company sponsors a bowling team and the shirt was company property.
17 Mrs. Elliott did regularly come into the plant a number of times each day to conduct
time studies.
18 The evidence shows that during the first 9 months of 1963, Respondent gave a total
of 12 reprimands to its entire work force. Eight of these were given on or after August 20,
and six of the eight went to Westfall and Eldridge.
19 Reprimands were also directed to Eldridge on September 19 and on an undisclosed
subsequent date. These were presumably mailed to Eldridge, as his employment at the
plant terminated on September 3, as hereafter related.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis also told Eldridge that Elliott had said that if the Union came in he would
close the plant, and added, "Ain't no 3 punks going to cause me to loose my job and
get away with it." The following morning Eldridge did not report for work; instead,
he telephoned Elliott and told the latter that he would not return to work. Elliott
asked why, and Eldridge replied that Davis had said he (Eldridge) would either walk
out or be carried out of the plant 20 Elliott stated he had no knowledge of this.
Eldridge continued by telling Elliott that he could not work with Mrs. Elliott and
Davis "riding me all the time," and that he was not coming back. Elliott asked
Eldridge to reconsider, stating that his work was satisfactory and that he would like
to have him continue, but if he decided to leave, he would give him a good recom-
mendation. Eldridge has not worked at the plant since.21 There is no showing,
indeed Elliott does not even claim, that he asked Davis about his alleged threat to
Eldridge; or that he then gave Eldridge any assurance that Davis would not harm him.
(c) Hobbs
After Hobbs' return to the plant on August 19, he and Davis had several conversa-
tions. The first such conversation occurred on August 19, Davis suggesting that
Hobbs quit, saying he could get a job elsewhere, and that the Elliotts did not want
Hobbs in the plant. When Hobbs refused, Davis said Hobbs would leave one way
or another, that if he did not there would be trouble, and both would get fired for
fighting. In the early part of September, Davis asked Hobbs if the latter would leave
for $300 and a good recommendation. Hobbs told Davis he would think it over and
later told him to get the money Later in the day Davis told Hobbs "they" would not
go over $200. Hobbs told Davis to forget the matter. Also, early in October, Hobbs
heard Davis tell employee Clarkson that he (Clarkson) would have to leave because
he had joined the Union, and that Hobbs would have to leave with Clarkson. Hobbs,
thereupon, told Davis "Hell with you." Davis then pushed both Clarkson and Hobbs
out of the plant. Superintendent Ross observed this incident, and told Hobbs that he
(Ross) knew it was going to happen. However, neither Ross nor the Elliotts took
any action against Davis. Hobbs and Clarkson went to see Business Agent Coyle and,
after a telephone conversation between Coyle and Rogers, returned to the plant where
they were met by Elliott and Davis. Elliott told Hobbs and Clarkson to return to
work, and in their presence told Davis that any repetition of his conduct of that day
would result in his being discharged About mid-October, Hobbs was told by Super-
intendent Ross that Davis had been paid a large amount of money to get rid of
Westfall, Eldridge, and Hobbs and still had $200 due him if Eldridge did not return.
Hobbs was working for Respondent at the time of the hearing.
(3) The offers of reinstatement
(a) Westfall
On September 11 Elliott wiote Westfall a letter which stated, in substance, that
when Westfall left the plant on September 3, he had stated he was quitting, but that
Respondent had now received a copy of the charges (filed September 9) 22 which
alleged that Westfall had been constructively discharged; that so far as Respondent
was concerned, Westfall had quit, but to avoid any misunderstanding, and the expense
of a trial, that Westfall could return to work maintaining his seniority and rate of pay;
but that unless he advised Respondent on or before September 17 of his intention to
return to work, the Company would assume that he (Westfall) had voluntarily quit.
Under date of September 23, Westfall wrote Elliott that he had not voluntarily
quit his job but had been forced to do so, and that he would not return to work until
the charges filed with the Board had been disposed of. Under date of September 24,
Elliott wrote Westfall again. This letter stated that as no reply had been received to
Elliott's prior letter of September 11 offering full reinstatement, he (Elliott) was
assuming that Westfall did not wish to return to work for the Company. The letter
continued, however, with the statement that unless Westfall advised to the contrary by
20Eldridge and Davis both testified at the hearing before me. Eldridge is about 5 feet
6 inches in height, extremely thin, and probably weighs no more than 125 pounds. He
gave every appearance of being a sickly man. Davis, on the other hand, is about 5 feet
8 inches, trim but stockily built, and probably weighs 185 to 200 pounds. If Eldridge was
in fear of bodily injury from Davis, I can understand why that would be.
21 Respondent's offers of reinstatement to Eldridge and Westfall will be discussed
hereafter.
= This has reference to the amended charge which Respondent received September 10.
The original charge was filed August 19.
ELLIOTT-WILLIAMS CO., INC. 1253
September 27, Respondent would assume that Westfall did not wish to return to work
and was "completely rejecting my offer of reinstatement." 23 Westfall did not reply
to that letter.
(b) Eldridge
On September 11 Elliott wrote Eldridge that in their September 4 telephone conver-
sation Eldridge stated he was quitting, and had repeated that statement 2 days later
when he picked up his check, but that Respondent had now received the charge
alleging that Eldridge had been constructively discharged; that in Respondent's view
Eldridge had voluntarily resigned but to avoid the expense of litigation and any mis-
understanding, Eldridge could return to work with his same seniority and rate of pay,
but that he must do so on or before September 17, otherwise Respondent would
assume that he had voluntarily quit. Eldridge did not reply to this letter, but by
telephone arranged to meet with Elliott at the plant some 3 or 4 days later. Accord-
ing to Eldridge, the arrangement was that he and Elliott were to talk alone, but when
he arrived at the office, he found not only Elliott, but Mrs. Elliott and Rogers and a
tape recorder operating; Eldridge insisted that the tape recorder be cut off and that
Rogers and Mrs. Elliott leave, but finally agreed that Rogers could remain, and the
meeting continued with Eldridge, Elliott, and Rogers present; that reinstatement was
offered him, but he told Elliott if Mrs. Elliott was going to continue to "ride us," and
if Davis keeps talking about "walking out or being carried out," the meeting was just
a waste of time; that Elliott only agreed to talk to Davis, but gave no assurance that
Davis would not continue the conduct to which Eldridge objected; and that Elliott
asked that the charges which had been filed be dropped. The meeting concluded
with Eldridge agreeing to talk with Coyle about withdrawal of the charge, and to
advise Elliott of the results.
Under date of September 24, Elliott wrote Eldridge as follows:
In my office last week we discussed your coming back to work, and you stated
that you would return under certain conditions. I agree to those conditions and
therefore expect you to return to work on or before September 27, 1963.
If you do not return on or before that date then I must assume you do not
wish to return under any conditions.
This letter is to be taken as an offer of reinstatement to your same job with the
same rate of pay and seniority.
Eldridge admittedly did not reply to the foregoing letter.
On October 29, Elliott wrote Eldridge again, stating that he had received no reply
to the letter of September 24, but again offered Eldridge "reinstatement to your same
job and same rate of pay with your same seniority," and stated that he could return to
work at any time. Elliott concluded by saying, "This will be the Company's final
offer of reinstatement" and that unless Eldridge reported to work by November 19, or
made some arrangement for an extension of the time, that Respondent could "only
assume that you are completely rejecting my unconditional offer of reinstatement."
Eldridge discussed the last mentioned letter with Coyle, and at the latter's request a
meeting was arranged for November 21 in Rogers' office. Present at this meeting were
Elliott, Rogers, Coyle, Eldridge, and Westfall Eldridge admits that at this meeting
Elliott told him he could return to work any time he wished up until' December 2; that
he told Elliott that he would consider the matter and advise him of his decision, one
way or the other, no later than December 2; that he never thereafter communicated
with Elliott in any way: According to Coyle, Respondent made no offer at this meet-
ing to reinstate Westfall. Coyle also testified that during the course of this meeting,
he again asked that Respondent negotiate with the Union, and that the latter refused,
expressing doubt as to the Union's majority status. Coyle's statements were not
denied by Elliott or Rogers.
b. Respondent 's case as to the various events on and after August 17 , and the
alleged of}ers of reinstatement
(1) Testimony of Davis
Davis, who is currently employed by Respondent, admits that on the morning of
August 17 he was on the loading dock when Westfall came toward the plant; that
' The record does not indicate whether Westfall's letter of September 23, and Elliott's
letter of September 24, crossed in the mails , or whether Elliott wrote his letter after re-
ceiving Westfall's letter, possibly for the purpose of "window dressing " The evidence
shows that all letters sent by Elliott to Westfall and Eldridge, here referred to, were de-
livered the day following their date It is, therefore, at least possible the two letters did
not cross However, a finding in that regard is unnecessary.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he was angry , he "probably cussed" the latter as he passed ; that Mrs. Elliott
came out , stomped her foot , and, pointing her finger at Westfall , said , "You lied, you
cheated on us, we trusted you." Davis testified that he did not "recall" Mrs. Elliott
hitting Westfall or "touching" him in any way, but did admit that "like he [Westfall]
said she may have called him a fat slob ." Davis also admitted that when Eldridge
arrived at the plant on the morning of August 17, he went to the front of the plant to
meet him , and because he regarded Eldridge as having done the same thing Westfall
did, that he told Eldridge to go "because we don't want you in here"; that when
Eldridge protested that he wanted to get his check , he took Eldridge through the shop
and into the office; that at the request of Mrs. Elliott , Elliott got the check , gave it to
Mrs. Elliott who, in turn, handed it to Eldridge , and that he ( Davis ) then said , "Let's
go," and led Eldridge out of the plant; that in doing so he was protecting Eldridge
from other employees . 24 He denied that Elliott punched or poked Eldridge in any
way. Davis likewise admits that when Hobbs came to work on August 17 he told the
latter "you are out of work today," and that when Hobbs attempted to get into the
plant , he (Davis ) blocked the doorway and told Hobbs "take off" and not to come
back again . Davis further admits that Westfall , Eldridge, and Hobbs returned to
work the following workday (August 19), and that he did nothing to prevent them
from working . The reason for his lack of activity on August 19, as distinguished from
his activity the preceding Saturday , he did not explain . The October incident involv-
ing Hobbs and Clarkson , as above set forth, is likewise admitted by Davis. His
explanation for that conduct is that Hobbs and Clarkson had said they were through
with the Union , and shortly thereafter word came around that they were the new
representatives of the Union; that he felt they had lied to him; that he became
mentally upset and "flew off the handle ." Davis denied that he ever received , or told
anyone that he received , money to get any employee out of the plant or to engage in
any antiunion activity or that the Elliotts authorized or had any knowledge of his
conduct in that regard until after it occurred.
With regard to the August 19 incident involving the discovery of usable lumber on
the scrap truck , allegedly discarded by Westfall , Davis testified that for some time
there had been complaints mostly from Westfall 's department that specially cut parts
were missing and since his reports showed he had cut the parts , he was charged with
failure to cut the parts and falsifying his report of work done; that he asked the
janitor to be on the lookout for missing parts; late Friday afternoon , August 16, the
janitor reported finding four usable parts , but he told the janitor not to say anything;
that Saturday evening the trash truck was emptied and no one had access to the plant
until the following Monday morning, the time of the alleged incident ; that after the
men had been at work for about an hour on Monday, he (Davis ) checked the trash
truck and found eight parts with trash thrown over them . To corroborate Davis,
Respondent offered testimony on this point by Elliott, McClure, and Luke. None of
them gave any testimony as to how the material in question got into the trash. They
only testified that they saw the material on the truck , that it was measured and found
usable . Davis denied that he had thrown the parts in the trash in an attempt to
"frame" Westfall.
(2) Testimony of Mrs. Elliott
Mrs. Elliott denied that she had any information about the drafting or circulation
of the petition which the men signed until the petition was brought to her by Davis.
She admitted she posted it on the bulletin board . When asked why she had done so,
Mrs. Elliott was unable to give any reason other than that she was confused . She says
that she went to August 16 meeting in Rogers ' office "for the sole purpose" of telling
Coyle that no one in the plant wanted the Union, and claimed that she knew this to be
a fact because the petition bore the signature of all the employees . Although she
claimed she had no knowledge whether the members of the negotiating committee
(Westfall , Eldridge, and Hobbs) had been granted leave to attend the meeting, she
admitted that she raised no question about their attendance at the meeting, nor did
she object to their presence because of their alleged supervisory status. She does not
claim that she told Coyle that the employees did not want the Union , or for that
matter that she made any statement at the meeting The reason for not carrying out
her stated purpose she did not explain . She admits that the following day she was
angry with Westfall , Eldridge, and Hobbs "because they had lied to me"; the lie
allegedly consisting of the fact that they had signed the petition stating they were
24 It is worthy of note that with respect to the persons present when Eldridge was given
his check , Davis corroborates Eldridge and contradicts both of the Elliotts who testified,
as hereafter set forth , that Elliott and Eldridge were alone in the office, and that neither
Davis nor Mrs. Elliott was present.
ELLIOTT-WILLIAMS CO., INC. 1255
giving up the Union, and yet had gone down to Rogers' office the preceding day to
negotiate a contract, which "got us in a jumble out there." She admitted that she
talked with Westfall the morning of August 17, and that she called him a liar, but
denied that she directed any other epithet toward him, or that she pushed, shoved, or
hit Westfall in any way. She denied that she gave any kind of signal to indicate the
arrival of Eldridge that morning, claiming that she did not see Eldridge until he came
into the outer office to get his check. According to Mrs. Elliott she remained in the
outer office at all times that Elliott and Eldridge were talking in the inner office, and
that Davis came in later, but only as far as the outer office.25 She denied that she
called Eldridge "a slimmy [sic] rat" or used any words to that effect. Mrs. Elliott
disclaimed all knowledge of the August 17 incident involving Hobbs, claiming she did
not hear what Davis said. She did not deny the testimony of Hobbs that he was
standing about 15 feet away from her and in a loud voice asked her three times if he
was fired, and that she did not reply. Mrs. Elliott admitted that she had a temporary
desk set up for her in the plant on the morning of August 19, from which point she
could observe virtually all of the plant operations. She denied that this was for the
purpose of harassment, claiming, as did Elliott, that this was done because Superin-
tendent Ross was away on vacation, the men were disturbed, the office was crowded,
and, in any event, she had to go into the plant hourly to check on matters. Mrs.
Elliott also denied, as did Elliott, that Davis was ever told or in any way encouraged
to harass or humiliate Westfall, Hobbs, or Eldridge, or that he was paid or promised
payment to bribe or force any employee to leave his work.
(3) Testimony of Elliott
Elliott admitted that just after Trial Examiner Sahm's report issued,26 Coyle, along
with Westfall, Eldridge, and Hobbs, came to his office and demanded bargaining,
which he refused, and that in the course of this conversation Coyle told him that
Westfall, Eldridge, and Hobbs constituted the Union's negotiating committee. Elliott
claimed that he knew nothing of the petition which the employees signed until it was
handed to him by Mrs. Elhott,27 and he denied that the decision to create the group
leader positions and to grant the wage increases was in any way contingent upon the
employees signing the petition. Elliott claims that, although he had told Coyle he
was going to litigate the prior case to the court of appeals, when he learned the men
had signed the petition disavowing the Union, he saw no sense in further litigation if,
in fact, the men did not want the Union. He testified that he thereupon called the
employees together and told them if they really meant that they no longer wanted the
Union he was going to abandon the litigation, and that the desired result could be
achieved by his agreeing to recognize the Union but that negotiations would collapse
if the men did not appear at the bargaining sessions.28 Hearing no objection to this
plan from the employees, according to Elliott, is the reason that the letter of August 7,
agreeing to meet with the Union on August 16, was written, and why he became so
angry when he learned that Westfall, Eldridge, and Hobbs had attended the August 16
bargaining session. According to Elliott, both Westfall and Hobbs came to his office
to get their paychecks on the morning of August 17. He makes no claim of having
said anything to either of them.29 Elliott admits that he went into the plant before
the starting hour and told Westfall to, "get to work," and that Westfall, apparently
taking offense, left the plant. He denied that when talking to Westfall, he ever pushed,
shoved, or manhandled him in any way. Elliott claims that Eldridge did not come in
25 This portion of her testimony is, of course, in conflict with the testimony of Davis, a
witness called by Respondent and for whose credibility Respondent vouched.
2s That report issued April 16.
27 Elliott did not say when this was. However , as Davis gave it to Mrs. Elliott about
the time it was signed , and she promptly posted it on the bulletin board , I must assume
he became aware of its existence about the time or shortly after the employees signed it
Moreover, Davis testified that he discussed the petition with Superintendent Ross on the
day it was circulated for signature by the employees Not only was notice to Ross notice
to Respondent, but it is inconceivable that Ross did not discuss a matter of that nature
with Elliott Ross did not testify, nor did Respondent explain its failure to call him.
While the record shows that Ross is no longer employed by Respondent , there is no show-
ing that his attendance could not have been secured by subpena
28 None of the employees who testified mentioned any such meeting or that Elliott ever
made such a statement to them
29 In the course of their testimony neither Westfall nor Hobbs made any reference to hav-
ing gone to Eliott 's office. In fact, according to Hobbs, he was prevented from entering the
plant that morning by Davis, and Davis admitted this to be a fact.
1256 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
for his paycheck on the day Westfall and Hobbs did, but rather that he came the next
day,30 that they talked in Elliott's private office with no one else present, that Davis
came into the outer office, said nothing to Eldridge, but that when Eldridge saw Davis
he turned white and left hurriedly.31 Elliott admits that in talking with Eldridge he
accused the latter of lying about being "through with the Union," and stated that he
(Eldridge), had "double-crossed the men and double-crossed me [Elliott]"; and that
Eldridge might have "trouble with some of the fellows giving you a hard time of it."
Elliott further admitted that after the events of August 17, he decided to break off
negotiations with the Union , giving as his reason that he was not "convinced at all that
[the Union] had a majority." 32 Elliott also admitted that he gave or approved the
reprimand for Westfall regarding the lumber incident, but did not claim that he made
any investigation to determine whether Westfall was in fact responsible for the lumber
being in the scrap . Elliott claims that because of this incident "and some related
things . . . of the same vein," 33 because Ross was on vacation, the "hostility of the
people," and because Mrs. Elliott had to make hourly rounds through the shop, he
decided that Mrs. Elliott should set up workspace in the plant where she could prevent
friction between the employees . Elliott admits that in a telephone conversation with
Eldridge on September 4, he was told by Eldridge that Davis had threatened to beat
him up if he did not leave. While Elliott disclaimed all knowledge of and responsi-
bility for the threat, he did not claim that he assured Eldridge that Davis would not
carry out his threat; he merely told Eldridge, "I can't police everybody as to what
they might say, but it was no doing of mine," and that he (Eldridge ) could return to
work if he wanted to, that "we were busy and needed him." He also admits talking
with Eldridge when the latter came to the plant for a conference that was arranged
after the September 11 letter offering Eldridge reinstatement ; that Eldridge stated, in
effect, he would come back if given assurance that Davis would not hurt him, and
that Mrs. Elliott refrained from subjecting him to embarrassment , claiming that he
agreed to the requests made by Eldridge , and told Eldridge that he ( Elliott ), would
police it and do all in his power to stop it Elliott denied, and his denial is supported
by the testimony of Rogers , that withdrawal of the instant charges was made a con-
dition to Eldridge's return to work ; indeed the fair inference from their testimony is
that the subject was not discussed . Elliott claims that it was after this meeting 34 that
he told Mrs . Elliott to discontinue circulating in the shop area. The reason assigned
for this was that tempers had quieted down , and that Ross was back from vacation
and he could circulate in the plant to the extent required.35 Elliott also testified that
he attended the meeting with Eldridge in November and again offered him reinstate-
ment "with no conditions ," and that Eldridge promised to consider it and advise of his
decision no later than December 2, but that he heard nothing further from Eldridge.
Elliott denied that he told Davis he would close the plant if the Union came in; that
he paid or offered to pay Davis to get rid of or to bribe anyone . He admitted that
though advised of Davis' activity in preventing Westfall, Eldridge, and Hobbs from
working on August 17, he did not issue a written reprimand to Davis or otherwise
discipline him for that conduct.
7. Credibility resolutions and factual conclusions
The testimony of Westfall , Eldridge , and Hobbs on the one hand , and that of Davis
and the Elliotts on the other , is, it is evident , virtually in direct conflict on most mate-
rial issues . I deem it unnecessary to make a credibility resolution with respect to each
fact where the testimony is conflicting . Suffice it to say that my careful review of the
evidence given by the aforementioned witnesses , including their demeanor while testi-
30 This is obviously inaccurate Payday was on Friday , August 16 , the day of the bar-
gaining session . If, as Elliott claims , Westfall and Hobbs came in the next day, and
Eldridge did not come in until the following day, then Eldridge came in on Sunday, ad-
mittedly a nonwork day
a' As heretofore pointed out , this testimony conflicts not only with the testimony of
Eldridge, but also with that of Davis.
y Elliott expressed his willingness to consent to an election in order to get.the matter
settled When asked if he did not believe that compliance with the Board's Order of
July 24 would settle the matter, Elliott replied, "I don't feel that a majority of the em-
ployees feel that the Board's Order is correct"
^ What the related things were Elliott did not indicate.
'"Rogers fixed this meeting as having been held about September 17. In any event it
was after September 12, the day Eldridge received Elliott's letter of September 11.
a5 The record shows that Ross returned from vacation and reported for work on the
morning of September 3, the last day Eldridge and Westfall worked.
ELLIOTT-WILLIAMS CO., INC. 1257
fying, considered in the light of what the Board found had occurred in the prior case,
compels me to conclude that I cannot credit the testimony of Davis and the Elliotts
except in those instances where (1) the particular fact is not in dispute; (2) their
testimony is in the nature of an admission against interest; or (3) they are corrobo-
rated by evidence which I credit. Indeed, I am convinced, not only that their story
was fabricated to accomplish the overall objective of avoiding dealing with the Union
at all cost, but that in many respects the true facts are the opposite of the testimony
they gave.36
In addition to demeanor, the following factors persuade me that the testimony of
Davis and the Elliotts is not credible.
1. The union animus of the Elliotts and their hostility to the principles of collective
bargaining are made abundantly clear by their conduct which formed the basis of the
earlier proceedings, as well as by their conduct in the instant proceeding. In the
earlier case, when the Union requested recognition, Elliott rejected all offers by the
Union to establish its majority status by authorization cards and demanded a Board-
conducted election. However, when the Union filed a petition as Elliott requested,
Respondent embarked upon a course of conduct designed to undermine the Union
and wean its supporters from it, all as set forth in Trial Examiner Sahm's report.
Specifically, the conduct in which the Elliotts were found to have engaged included,
inter alia, the following: Promised wage increases for abandonment of the Union;
urged Westfall to persuade his fellow employees to abandon the Union, claiming he
was the one person who had influence over them, and when Westfall refused,
threatened that he would have to "take the medicine"; accused Westfall of lying
because he had allegedly led the Elliotts to believe that he dropped the Union, but had
in fact continued to support it; polled the employees to ascertain their union sympa-
thies and desires; counseled the employees they could withdraw from the Union by
telling the union officials that they no longer wanted the Union; and arranged for
Respondent's counsel to advise the employees how they could abandon the Union.
It is significant, I believe, that in the instant proceeding Respondent engaged in, as
above set forth, virtually the same kind of conduct.
2. The facts eloquently demonstrate Respondent's bad faith in telling the Union on
August 7 that it would bargain in compliance with the Board's Order of July 24, and
after the one meeting of August 16, broke off negotiations allegedly because it was not
convinced of the Union's majority status. Assuming arguendo that under the facts of
this case the reason assigned by Respondent for breaking off bargaining negotiations
would constitute a valid defense-and I shall in a subsequent portion of this Decision
show that such is not the case-the facts demonstrate that whatever information
Respondent had on that subject, it had when it wrote the letter of August 7 If
Respondent in fact had a good-faith doubt of the Union's majority, why did it offer
to bargain with what it understood to be a minority union? The answer I find is, as
Elliott admittedly told the employees his plan was, that the way to get rid of the Union
was for him to offer to recognize it, and for the employees not to appear at the bar-
gaining sessions. In other words, he was planning a course of conduct predicated on
the assumption that the antiunion conduct he had directed against his employees in an
effort to persuade them to reject the Union, had been completely successful. However
the appearance of Westfall, Eldridge, and Hobbs at the negotiating meeting on Au-
gust 16 upset Elliott's plan, or as Mrs. Elliott expressed it, that "just got us in a jumble
out there," and accounts for the events of August 17 and those which followed. Such
conduct could only have been the execution of a deliberately conceived plan designed
to rid Respondent of the three most active union adherents , and to demonstrate to the
remaining employees that their continued support of the Union would be futile. In
31 In N.L.R.B. v. Walton Manufacturing Company & Loganvclle Pants Co., 369 U.S. 404,
408, the Supreme Court, in commenting on the right of a trier of fact to believe the con-
trary of what an uncontradicted but discredited witness testified to, quoted with approval
trom the opinion of Judge Learned Hand in Dyer v. McDougall, 201 F. 2d 265, 269,
stating that the demeanor of the witness:
. . may satisfy the tribunal, not only that the witness ' testimony is not true, but
that the truth is the opposite of has story; for the denial of one, who has a motive to
deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to
give assurance that he is fabricating, and that, if he is, there is no alternative but to
assume the truth of what he denies. [Emphasis supplied.]
To the same effect see N.L.R.B. v. Dimon Coil Company, Inc, 201 F. 2d 484 (CA. 2) ;
N.L.R.B. v. Howell Chevrolet Company, 204 F. 2d 79 (C.A. 9), affil. on other grounds
346 U.S. 482.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short, Respondent's letter of August 7, that it would bargain with the Union in com-
pliance with the Board's Order, was, as it was intended to be, a fraud from its incep-
tion; a commitment with which it never intended to comply.
3. It is significant that the events of August 17 were directed only at the three
members of the Union's committee. It must be remembered that Davis did not attend
the meeting of August 16, nor did the members of the Union's committee return to the
plant after the meeting that day. I am at a loss to understand from whom Davis
got the information about what occurred at the meeting, if it was not from the
Elliotts; and the only purpose the Elliotts could have in conveying that information to
Davis would be that they were looking to him to take some action designed to achieve
their objective.
4. When Davis' efforts failed to keep the three most active adherents of the Union
out of the plant on August 17, a more subtle approach was chosen, namely, keeping
those employees under the surveillance of Mrs. Elliott during their entire workday,
with a series of reprimands, and appeals and threats from Davis designed to cause the
employees to leave. It is significant to note that the same facts and circumstances
which allegedly provoked Davis' conduct on August 17 were equally present on
August 19, but he admittedly refrained from such actions during the remainder of
the period Westfall and Eldridge worked. Davis gave no reason for the change in
his conduct. In view of this fact, and the fact that the Elliotts, though fully informed
of Davis' conduct on August 17, never reprimanded him or imposed any discipline, it
is at least reasonable to infer , as I do, that the change in Davis' conduct was in some
manner dictated by the Elliotts.
5. The testimony of Hobbs substantially corroborates the testimony of Westfall
and Eldridge. Hobbs was employed by Respondent at the time he testified in this
proceeding. I am not unmindful of the fact that an employee who testifies against
the interest of his employer, does so with full realization that his testimony may incur
the displeasure of the employer, and places his continued employment, and therefore
his livelihood, in jeopardy. Hobbs, I believe, was impelled to tell the truth regardless
of the consequences that might eventuate. And to the extent that Hobbs' testimony
corroborates Westfall and Eldridge, the credibility of their testimony is thereby
supported.
Accordingly, and for the reasons stated, I credit the testimony of Westfall, Eldridge,
and Hobbs, and discredit the testimony of Davis and the Elliotts, and on that basis
reach the following factual conclusions:
1. In promoting and circulating the petition signed by all employees in June, and
in engaging in the other activities testified to by Westfall, Eldridge, and Hobbs, Davis
was acting as the agent of Respondent. Not only does the record justify a finding,
which I make, that the Elliotts must have specifically authorized Davis' conduct, but
it certainly leaves no room for doubt that Respondent knew of and ratified such activi-
ties. Davis admitted that he told Superintendent Ross about the disaffiliation petition
then being circulated. Mrs. Elliott admitted that a copy of the petition was given her
and that she posted it on the bulletin board. Notwithstanding this information, there
is no evidence even suggesting that any management official made inquiry as to who
was responsible for the petition, or why it was being circulated. Moreover, Davis
admittedly spent about 2 hours discussing the petition with Westfall, Eldridge, and
Hobbs, and Westfall spent about 3 hours in getting the employees to sign it. It is
inconceivable that this could have been done for the period indicated without the
activity coming to the attention of management, and the fact that they raised no
objection strongly supports the inference that Davis was acting with the knowledge
and consent of management. Davis' activities on August 17, directed at Westfall,
Eldridge , and Hobbs , took place for the most part in the presence of one or both the
Elliotts. They took no action to disavow such conduct, or indicate in any way that
it did not meet with their approval, nor did they impose discipline of any kind on
Davis for such conduct.
2. Considered in the light of all the circumstances of this case, and particularly in
view of its timing, the wage increases granted to all employees immediately after the
foregoing petition was signed , was, I find , simply a reward for signing the disaffiliation
petition , and in the case of the "group leaders," was not compensation for increased
duties and responsibilities.
3. After being designated as "group leaders" there was in fact no material change
in the work performed or in the authority which was conferred upon Westfall, Eld-
ridge, Hobbs, or Davis. On the facts set forth above, it is admitted that they did not
have the authority to hire or fire, and there is no showing that they may have made
recommendations in that regard ; any recommendation they have made as to a wage
increase for a particular employee was incidental and always subject to the final deci-
sion of management, and there is no evidence to indicate that such a recommendation
ELLIOTT-WILLIAMS CO., INC. 1259
bore any particular weight; the evidence heretofore summarized shows that the group
leaders did not deal with the employees in the usual manner of a supervisor, and their
direction to the men in their department was of a routine nature and did not constitute
"responsible" direction within the meaning of Section 2(13) of the Act. In short, I
find and conclude that they were simply leadmen.
4. Because its employees had given assistance and support to the Union, and sought
to bargain through a representative of their choice, Respondent, as part of a plan
designed to compel its employees to cease such activity, engaged in all of the activity
testified to by Westfall, Eldridge, and Hobbs, including, inter alia, the following-
(a) Interrogated and polled its employees regarding their union desires and
sympathies.37
(b) Promised wage increases to employees if they would renounce their union
adherence, and granted wage increases as a reward for such renunciation.
(c) Told employees that it would never sign a contract with the Union , and that it
would close its plant if the employees selected the Union as their bargaining
representative.
(d) Attempted to prevent and prevented employees from entering the plant or
continuing with the performance of their duties.
(e) Pushed, shoved, and slapped employees and threatened them with acts of
violence.
(f) Told employee Westfall that he was disliked by Respondent, that he could not
represent Respondent on a bowling team sponsored by it , and that he would not
receive promotions.
(g) Uttered derisive epithets to and otherwise harassed and humiliated employees,
and attempted to fabricate reasons for their discharge.
(h) Offered employees who adhered to the Union money and/or a good recom-
mendation if they would quit, threatened to withhold such recommendation if they
refused to quit, and stated that justification for discharging them could and would
be found.
5. The conduct directed toward Westfall, Hobbs, and Eldridge by Davis and the
Elliotts was part and parcel of Respondent's campaign to embarrass and humiliate said
employees and cause them to leave their employment, so as to provide a basis for
contending they had in fact quit.
B. Conclusionary findings
On the basis of the foregoing factual findings which are derived from the credited
testimony , I find and conclude that Respondent Elliott -Williams Co ., Inc.:
1. Violated Section 8(a)(1) of the Act by the conduct set forth in section 6(d)
hereof. To the extent that the aforementioned activity was directed at Westfall,
Hobbs, and Eldridge it was violative because I find and conclude that they were not
invested with supervisory authority within the meaning of Section 2(11) of the Act.
37 The interrogation and polling referred to above was by the Elliotts and Davis. How-,
ever, in addition , Respondent 's counsel , in connection with an offer of proof, which was
rejected, that the employees in the plant did not want the Union as their bargaining rep-
resentative , stated that he had asked each employee what their feelings were about the
Union, and received a reply as indicated. According to counsel, he told each employee
that Respondent was charged with a refusal to bargain , that to sustain such a change it
was necessary to establish that the Union represented a majority of the employees, asked
it the employee was willing to talk about that subject, and after receiving an affirmative
reply asked them what their feelings were about the Union , and received answer as indi-
cated . That such interrogation by counsel unless justified by all the circumstances of the
case is proscribed by Section 8(a) (1) of the Act, is settled. Joy Silk Mills, Inc v.
N.L.R.B., 185 F. 2d 732, 742-744 (C.A D C.). As hereafter pointed out, whether the
Union enjoyed majority status at the time counsel interrogated the employees, or in
August, or indeed at any time after the date of the Board's Order, was irrelevant and
hence beyond the scope of the issues framed by the complaint It was not, therefore, a
legitimate subject of inquiry by counsel. Also, counsel did not tell the employees that no
reprisal would be visited upon them if they answered his question. And as the conduct in
question occurred in the context of other unfair labor practices , the rule in Blue Flash
Empress, Inc, 109 NLRB 591, is not applicable. Henry I. Siegel Co., Inc., 143 NLRB
386, P-H Garages, Inc et al., d/b/a P-M Parking System, 139 NLRB 987, 988 How-
ever, there is no allegation in the complaint covering such conduct The General Counsel
did not move to amend his complaint in that regard The issue was not litigated by the
parties, but got into the record only by reason of a question put by me to determine the
propriety of an offer of proof Accordingly, I make no findings on this incident.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel having shown that the individuals referred to were employed in
Respondent's plant, and engaged in ordinary production operations, the burden rested
on Respondent to go forward with evidence to establish that they had been invested
with sufficient authority to make them "supervisors," and hence not "employees" to
whom the provisions of Section 8 (a) (1) and (3) would be applicable. Local No 636
of the United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (The Detroit Edison
Company, et al.), 123 NLRB 225, 230-231. The evidence, I find and conclude, is
insufficient to establish supervisory status within the meaning of the Act.
2. Violated Section 8 (a) (3) and (1) of the Act by constructively discharging West-
fall and Eldridge. As heretofore found, Respondent engaged in its campaign against
those employees with the intent and purpose of causing them to leave Respondent's
employment. The discriminatory working conditions which Respondent imposed
upon Westfall and Eldridge were of a character no employee could be expected to
tolerate. In this connection I refer particularly to the conduct of Davis and the
Elliotts between August 19 and September 3. Accordingly, I find and conclude that
Respondent constructively discharged Westfall and Eldridge in violation of Section
8(a)(3) of the Act. I further find and conclude that Respondent's-offers of rein-
statement to Westfall and Eldridge were not made in good faith as they did not indi-
cate that the discriminatory working conditions, which Respondent had imposed upon
Westfall and Eldridge and which caused them to leave Respondent's employment, had
been or would be removed. California Lingerie Inc., 129 NLRB 912, 914
3. Violated Section 8 (a) (5) and (1) of the Act by admittedly breaking off negotia-
tions and refusing to meet with the Union after August 16. Respondent's defense that
it broke off negotiations "because we weren't convinced ... that they [the Union] had
a majority," is plainly without merit. The Board found in the prior case that,
Respondent was disinterested in whether the Union represented a majority, refused to
listen to the Union's offer of proof of majority, simply demanding an election. How-
ever, when the Union filed its petition, Respondent engaged in a campaign of restraint
and coercion of its employees which was plainly designed to undermine the Union's
majority status The record in the instant case leave no room for doubt, and I find
that Respondent's conduct in the instant proceeding is but a continuation of its conduct
which formed the basis for the Board's Decision in the prior case, and demonstrates
that at no time material did Respondent entertain a good-faith doubt as to the Union's
majority status. It is equally clear, and I find, that Respondent's refusal to bargain
with the Union on and after June 11 was predicated solely upon its unalterable opposi-
tion to the principles of collective bargaining , and its determination to avoid entering
into a bargaining relationship with the Union, at all cost. Respondent's protestations
that the Union's majority status should be determined through a Board-conducted
election to which it will consent, and if the Union wins such an election Respondent
will then bargain with it, comes with ill grace from one who had engaged, as the
record shows Respondent has, in conduct which makes the holding of a free election
impossible. Cf. Laab's, Inc., 128 NLRB 374, 375.
Moreover, even if he assumed that the Union in fact lost its majority status at some
point after August 13, 1963,38 that would provide Respondent with no basis for its
admitted refusal to bargain with the Union after the Board's Order of July 24, for
.. a bargaining relationship once rightfully established 39 must be permitted to exist
and function for a reasonable period in which it can be given a fair chance to succeed."
Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 705. It is for this reason that the
Board, with court approval, holds that where the alleged loss of majority occurs after
the employer refuses a valid request for bargaining and undertakes to dissipate the
Union's majority by acts of interference, restraint, and coercion, the employer may
not rely upon the alleged loss of majority as a defense to a refusal to bargain charge.
Franks Bros. Company v. N.L.R.B., supra; N.L.R.B. v. Warren Company, Inc., 350
U.S. 107; N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563; Bilton Insulation, Inc. v.
N.L.R.B., 297 F. 2d 141, 144-145 (C.A. 4); N.L.R.B. v. John S. Swift Company, Inc.,
302 F. 2d 342, 345-346 (C.A. 7); Superior Engraving Co. v. N.L.R.B., 183 F. 2d 783,
792 (C.A. 7); Certified Casting & Engineering, Inc., 145 NLRB 572; Western Alumi-
num of Oregon Incorporated, et al., 144 NLRB 1191.
18 This is the date found by the Board in the earlier case that Respondent 's refusal to
bargain occurred.
31 The Board's Order of July 24 constitutes the rightful establishment of the bargaining
relationship between the parties.
ELLIOTT-WILLIAMS CO., INC. 1261
Accordingly, I find and conclude that since on or about June 11 Respondent has
refused to bargain collectively with the Union and thereby violated Section 8(a)(5)
of the Act 40
II. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
which I find necessary to effectuate the policies of the Act.
Having found that Respondent engaged in unfair labor practices by refusing since
on or about June 11 to bargain with the Union as the collective-bargaining repre-
sentative of its employees in the appropriate unit, I shall recommend that, upon
request, it shall bargain collectively with the Union as such exclusive representative
and, if an understanding is reached, embody the same into a signed agreement.
Having found that Respondent constructively discharged Westfall on September 3,
and Eldridge on September 4, and has not since offered to unconditionally reinstate
them to a position of the same or substantially equivalent working conditions which
they severally enjoyed prior to August 17, I shall recommend that Respondent offer
Westfall and Eldridge immediate, full, and unconditional reinstatement to his former
or a substantially equivalent position, without prejudice to his seniority or other rights,
privileges, or working conditions, and make him whole for any loss of earnings
suffered by reason of Respondent's discrimination against them, by paying to each a
sum of money equal to the amount he would have earned from the date of his con-
structive discharge to the date of Respondent's offer of unconditional reinstatement,
less his net earnings during said period. Backpay, with interest at the rate of 6 percent
per annum, shall be computed in the manner set forth in F.W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent engaged in unfair labor practices by various acts
and conduct set forth in section 6(d), above, conduct which goes to the very heart of
the Act, I shall recommend that Respondent cease and desist from in any manner
interfering with, restraining, or coercing its employees in the exercise of rights guar-
anteed to them by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d
532 (C.A.) 4; California Lingerie Inc., 129 NLRB 912, 915.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in section 6(d), above, Respondent inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed to
them by Section 7 of the Act, and thereby engaged in unfair labor practices proscribed
by Section 8 (a) (1) of the Act.
4. By constructively discharging Westfall and Eldridge, as above set forth, Respond-
ent engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1) of the
Act.
5. All production and maintenance employees of Respondent at its Indianapolis,
Indiana, plant, including plant clerical employees and field assemblers and service
employees, but excluding all office clerical employees, draftsman, professional
employees, guards, and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9(b) of the
au Although I have found that Respondent's conduct in the instant proceeding was
simply a continuation of its refusal to bargain which the Board found in the prior pro-
ceeding to have begun on or about August 13, 1962, I have found, in the instant case,
that the unfair labor practice proscribed by Section 8(a)(5) began on or about June 11.
The charge upon which the Instant complaint is based was filed August 19 Section 10(b)
of the Act prohibits the finding of any unfair labor practice on events which occurred
more than 6 months prior to the filing and service of the charge ; in this case February 18.
At that time Respondent was engaging in no overt conduct indicative of an intention not
to bargain with the Union if directed to do so by an order in the prior proceeding. How-
ever, the petition disavowing the Union, which I have found Respondent responsible for
circulating among the employees, considered in the light of all the facts, does disclose an
intention not to bargain with the Union, and for that reason I fix the inception of the
8(a) (5) unfair labor practice found herein, as the date on which that petition was circu-
lated, namely, on or about June 11. ,
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and at all times material the Union has been , and is, the exclusive representative
of all employees in said unit for the purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
6. By refusing, since on or about June 11, to bargain collectively with the Union as
the exclusive representative of the employees in the aforesaid appropriate unit,
Respondent has engaged in unfair labor practices proscribed by Section 8 (a) (5) and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Elliott-Williams Co.,
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:.
(a) Refusing to bargain collectively with Sheet Metal Workers' International
Association, Local 503, AFL-CIO, as the exclusive representative of the employees
in an appropriate unit consisting of all production and maintenance employees of
Elliott-Williams Co., Inc., at its Indianapolis , Indiana, plant , including plant clericals
and field assemblers and service employees, but excluding all office clerical employees,
draftsmen , professional employees , guards, and supervisors as defined in the National
Labor Relations Act, as amended.
(b) Discouraging membership in or activities on behalf of Sheet Metal Workers'
International Association, Local 503, AFL-CIO, or any other labor organization of
its employees, by discharging or in any other manner discriminating against any of its
employees in regard to their hire or tenure of employment or any term or condition of
employment.
(c) Aiding, assisting, or in any manner encouraging employees to withdraw their
assistance or support from any labor organization.
(d) Interrogating or in ay manner polling its employees concerning their member-
ship in, sympathies for, or activities on behalf of any labor organization
(e) Offering or granting wage increases or other benefits to employees as a reward
for ceasing to give assistance and support to any labor organization.
(f) Threatening to close its plant if its employees select a labor organization as
their bargaining representative.
(g) Preventing or attempting to prevent employees from entering its plant to per-
form their duties because of their assistance to or support of any labor organization.
(h) Pushing , shoving, slapping, or threatening with violence any employee because
of his assistance to or support of any labor organization.
(i) Uttering derisive epithets , unjustifiably issuing reprimands , threatening to dis-
charge, or in any manner attempting to harass or humiliate employees because of their
membership in, assistance to, or support of any labor organization.
(j) In any manner interfering with , restraining , or coercing its employees in the
exercise of their rights to self-organization , to form labor organizations , to join or
assist Sheet Metal Workers' International Association, Local 503, AFL-CIO, or any
other labor organization , to bargain collectively through representatives of their own
choosing , or to engage in other concerted activities for the purpose of mutual aid or
protection , as guaranteed by Section 7 of the National Labor Relations Act, as
amended , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Sheet Metal Workers' International
Association, Local 503, AFL-CIO, as the exclusive representative of the employees in
the unit described above, with respect to rates of pay, wages , hours of employment,
and other conditions of employment , and, if an understanding is reached , embody
same into a signed agreement.
(b) Offer to Ronald Westfall and Philip Eldridge immediate, full, and uncondi-
tional reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights , privileges , or working conditions , and make
them each whole for any loss of earnings they may have suffered, severally, as set
forth above in the section hereof entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful'-to
determine the amount of backpay due, as herein provided.
ELLIOTT-WILLIAMS CO., INC. ' 1263
(d) Post at its plant in Indianapolis, Indiana, copies of the attached notice marked
"Appendix." 41 Copies of said notice, to be furnished by the Regional Director for
Region 25 (Indianapolis, Indiana), shall, after being duly signed by its authorized
representative, be posted by Elliott-Williams Co., Inc., at its Indianapolis, Indiana,
plant, immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps Respondent has taken to comply herewith.42
"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 Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
sz In the event that this Recommended Order he 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 National Labor Rela-
tions Act, as amended, we hereby notify you that.
WE WILL, upon request, bargain collectively with Sheet Metal Workers' Inter-
national Association, Local 503, AFL-CIO, as the exclusive representative of
our employees in the unit described below, with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding into a signed agreement. The
bargaining unit is:
All production and maintenance employees in our Indianapolis, Indiana,
plant, including plant clerical employees and field assemblers and service
employees, but excluding all office clerical employees, draftmen, profes-
sional employees, guards, and supervisors as defined in the National Labor
Relations Act, as amended.
WE WILL offer to Ronald Westfall and Philip Eldridge immediate, full, and
unconditional reinstatement to their former or substantially equivalent jobs,
without prejudice to their seniority or other rights, privileges, or working condi-
tions, and make them each whole for any loss of pay they may have suffered as
a result of the discrimination practiced against them:
WE WILL NOT discharge, threaten to discharge, or in any other manner dis-
criminate against any employee because he belongs to, or has assisted or sup-
ported, any union.
WE WILL NOT aid, assist , or in any manner induce or encourage any of our
employees to withdraw from, or give up their assistance to, or support of, any
union.
WE WILL NOT question or poll our employees about their membership in,
sympathy for, or activities on behalf of any union.
WE WILL NOT grant or offer to grant any wage increase or other benefit to our
employees as a reward for withdrawing support from any union, or threaten to
close our plant if our employees select a union to represent them.
WE WILL NOT push, shove, slap, threaten physical violence to our employees,
attempt to prevent them from entering our plant to perform their duties, issue
unjustifiable reprimands , utter derisive epithets, or in any other manner attempt
to harass or humiliate any employee because of his membership in, assistance to,
or support of, any union.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to form unions, to join, assist,
or support Sheet Metal Workers' International Association, Local 503, AFL-CIO,
or any other union, to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purpose of mutual aid
or protection, as guaranteed by Section 7 of the National Labor Relations Act, as
amended, or to refrain from any or all such activities
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain or to refrain from becoming or
remaining members of Sheet Metal Workers ' International Association , Local 503,
AFL-CIO, or any other union.
ELLIOTT-WILLIAMS CO., INC.,
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, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose
3-8921, if they have any questions concerning this notice or compliance with its
provisions.
Operative Plasterers ' & Cement Masons' International Associa-
tion Local #2, AFL-CIO [Arnold M . Hansen] and Jones &
Jones, Inc., and Progressive Plastering & Lathing Contractors'
Association
Laborers & Hod Carriers Local #300 and Jones & Jones, Inc.,
and Progressive Plastering & Lathing Contractors ' Associa-
tion. Cases Nos. 21-CB-2014, 21-CC-570, 21-CB-2023, and 21-
CC-581. November 30, 1964
DECISION AND ORDER
On September 19, 1963, Trial Examiner Herman Marx issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices, and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondents had not engaged in
certain other unfair labor practices, as to which he recommended that
the complaint be dismissed. Thereafter, the Charging Party and
Respondent Local #2 filed exceptions to said Decision, and the
General Counsel and Respondent Local #300 filed exceptions and
briefs.
The Board has considered the Trial Examiner's Decision, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner as modified herein.
1. The Trial Examiner, relying on the Board's decision in Colson
and Stevens 1 and subsequent cases by which he was then bound, found
that the Respondents' use of economic pressures in the form of strike
1 Colson and Stevens Construction Co., Inc., 137 NLRB 1650.
149 NLRB No. 106.