Hermann Equipment Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1966

156 N.L.R.B. 716 (N.L.R.B. 1966)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate unit described below with respect to rates of pay , wages, hours of employ-
ment, and other terms and conditions of employment and, if any agreement is
reached, embody such understanding in a signed contract . The appropriate
unit is:
All production and maintenance employees at our Canton , Massachusetts,
plant including truckdrivers, mechanics , and loaders , but exclusive office
clerical employees , laboratory technicians , farm laborers , construction
workers, professional employees, guards , and supervisors as defined in
the Act.
CUMBERLAND FARMS, INC.,
Employer.
Dated--- ---------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, Boston Five
Cents Savings Bank Building , 24 School Street , Boston, Massachusetts , Telephone
No. 223-3358.
Hermann Equipment Manufacturing Company, Inc . and District
No. 9, International Association of Machinists , AFL-CIO.
Cases Nos. 14-CA-3470 and 14-CA-3491. January 11, 1966
DECISION AND ORDER
On July 14, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled consolidated case, finding that the
Respondent had not engaged in certain unfair labor practices as
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Trial Examiner's
Decision. The General Counsel filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Respondent filed
an answering brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations 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 of the parties, and
the entire record in this case, and finds merit in certain exceptions of
the General Counsel. Accordingly, the Board hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner only to
the extent they are consistent herewith.
On September 29, 1964, a charge alleging violations of Section
8 (a) (1) and (3) was filed by the Union in Case No. 14-CA-3470.
156 NLRB No. 60.
HERMANN EQUIPMENT MANUFACTURING CO., INC. 717
,On October 1, 1964, a request for recognition was made by the Union
and, on the same day, it filed a representation petition. On October 12,
the parties entered into a consent-election agreement for an election
to be held October 26, 1964, and also a settlement agreement in Case
No. 14-CA-3470 which was approved by the Regional Director on
October 14, 1964. The Union lost the election and thereupon filed
objections to conduct affecting the election and also a new charge,
Case No. 14-CA-3491, on October 29, alleging violations of Section
8(a) (1) 1 and (5). Thereafter, on February 5, 1965, the Regional
Director set the election aside, vacated the settlement agreement, and
issued the consolidated complaint herein.
At the hearing, only the allegations of the second charge (Case No.
14-CA-3491) were litigated. The General Counsel conceded that
Respondent had fully complied with the terms of the October 14
settlement agreement with respect to Section 8(a) (3), and, having
been assured that only an 8(a) (1) order was involved, Respondent
withdrew its answer to those allegations of the complaint alleging
unlawful conduct before the settlement agreement.
A. The 8(a) (1) allegations
1. Case No. 14-CA-3471
Three instances of unlawful conduct were alleged hereunder.
(1) Alleged abuse of employee Schaumberg on November 3, 1964,
by alleged Supervisor Gosen because of Schaumberg's union activity.
We agree with the Trial Examiner's conclusion that the General
Counsel did not sustain his burden of proof as to Gosen's supervisory
status. We shall dismiss that allegation of the complaint.
(2) and (3) Separate statements on October 15, 1964, by Super-
visor Tilly 2 to employees Schaumberg and Eikermann containing
promises of wage benefits. It is uncontradicted on the record that
Tilly stated that he had been instructed by an officer of Respondent
to draw up a new wage scale which would be put into effect as soon
as the "union business" was over. Tilly pointed out to Eikermann that
under the proposed new wage scale, Eikermann's hourly rate would be
increased from $1.50 to $1.85. Likewise, he stated to Schaumberg
that his increases would be from $1.85 to $2.09.
It is clear from the record, and we find, that Tilly intended to convey
to Respondent's employees the belief that there was no necessity for
"The conduct alleged to be violative of Section 8(a)(1) also formed the basis for the
objections to the election
2 The Trial Examiner found Tilly, designated by Respondent as a leadman, to be a
supervisor within the meaning of Section 2(11) of the Act No exceptions were filed
thereto
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to support the Union in the coming election. Accordingly, and
unlike the Trial Examiner, we find that these statements of Tilly were
violative of Section 8 (a) (1) of the Act.'
In accordance with the conclusion that the General Counsel had not
proved the postsettlement violations alleged, the Trial Examiner found
that the settlement agreement of October 14, in Case No. 14-CA-3470,,
had not been breached by Respondent. He therefore recommended
that the settlement agreement set aside by the Regional Director be
reinstated. We find, however, that the 8(a) (1) violations found
above herein were sufficiently substantial to warrant the setting aside
of the settlement agreement. These violations constituted conduct of
the very type previously alleged in Case No. 14-CA-3470, infra, from
which Respondent, in the settlement agreement, had agreed to cease and
desist. Nevertheless, one day after executing the agreement, Respond-
ent again promised wage increases to its employees. We shall not,
therefore, overrule the Regional Director in his decision to set aside
the settlement agreement.
2. Case No. 14-CA-3470
As we have found above that the settlement agreement was justi-
fiably set aside, the allegations of the consolidated complaint arising
out of Case No. 14-CA-3470 are now subject to consideration. The
Trial Examiner because of his disposition of the second charge made
no findings thereon. The record demonstrates that Respondent with-
drew its answer to all allegations of the complaint arising out of the
charge in Case No. 14-CA-3470. The allegations therefore stand
admitted.
Accordingly the Board finds, as alleged in the complaint, that
Respondent, by its agents and supervisors, violated Section 8(a) (1)
of the Act by the following conduct :
1. Interrogation of its employees on or about September 21 and
22,1964, as to their union membership and sympathies.
2. Threatening employees on or about September 21 and 24, and
October 1, 1964, by telling them that it would close its plant in the
event the Union was successful in its organizational activities.
g Donald L . Trettenero , etc., d/b/a Trettenero Sand & Gravel Co., 129 NLRB 610;
Austin Concrete Works , Inc, 132 NLRB 184; Aiello Dairy Farms Co., 114 NLRB 1365;
American Freightways Co, Inc , 124 NLRB 146
We do not agree with the Trial Examiner's inference that a promise of increased bene-
fits must be "related to union membership." The Board has often held that a promise of
wage benefits to employees before an election or during an organizational campaign is
violative of the Act . Nor do we agree that such a violation may not be found unless
the employer 's motive to interfere has been established It has long been held that a
company's conduct is violative of Section 8(a) (1) where it tends to interfere with the
exercise by employees of their rights under the Act. See , e.g., American Freightways
Co , Inc. , 124 NLRB 146, 147.
HERMANN EQUIPMENT MANUFACTURING CO., INC. 719
3. Keeping under surveillance, on or about September 21 and
24, 1964, the meeting place, the meeting, and other concerted activities
of its employees.
4. Promising to employees, on or about October 1, 1964, economic
and other benefits if they refrained from becoming or remaining mem-
bers of the Union or giving assistance or support to it.
We also find as charged in the complaint that Respondent violated
Section 8(a) (3) of the Act on or about September 25, 1964, by dis-
charging employee Arthur Erfling because said employee had joined
or assisted the Union.
B. The 8(a) (5) allegation
The General Counsel, in urging the Board to find that Respondent
violated Section 8(a) (5), relies upon Bernel Foamy Products Co.,
Inc.4 and Irving Air Chute Company, Inc., Marathon Division.5 Basic
to a Bernel Foam finding must be an antecedent finding of certain
unlawful conduct and a finding that the Union represented a valid
majority of the employees in an appropriate unit .6 The Trial Exam-
iner, having found no unlawful conduct herein, did not consider the
question of the Union's majority. The record demonstrates as follows
with respect to the Union's majority status :
On May 24, 1965, after the close of the hearing herein, the parties
filed a stipulation with the Board as to the Respondent's payroll of
September 30, 1964. It was stipulated therein that the payroll included
41 persons. The stipulation further stated that, though included in
the list of names, two office clericals, (Grannemann and Kikious), and
the foreman, Birk, were not to be in the unit. It was further stipulated
that this list included the leadmen and three college students (Shacke,
Green, and Hooper) who had quit on September 22 and had returned
to school. It was also provided that the stipulation is to be considered
a part of the record.
With the 2 clericals and Foreman Birk excluded from the unit as
well as the 3 college students who had quit, a total of 35 employees
remain on the list. However, as we have found Leadman Tilly to be
a supervisor, he likewise must be excluded from the unit, leaving a
total of 34.7
4 146 NLRB 1277.
6149 NLRB 627.
6 The parties stipulated and we find the following employees of Respondent constitute
an appropriate unit for bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees of Respondent employed at its Hermann, Mis-
souri , facility, excluding all office clerical and professional employees, guards, and super-
visors as defined in the Act.
7 The General Counsel would also exclude five other leadmen as supervisors . The Trial
Examiner found, and we agree, that the General Counsel failed to establish the super-
visory status of these employees . Accordingly, we find no merit in the General Counsel's
exceptions to these findings.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, the General Counsel states that he relies on 16 authori-
zation cards. As we have found the appropriate unit to be comprised
of 34 employees on September 30, and since no evidence has been sub-
mitted which would demonstrate any changes in the above figures
between September 30 and October 2, 1964, the critical date on which
Respondent presumably received the Union's request for recognition
of October 1,8 we find that the General Counsel has failed to prove
that the Union represented a majority of the employees in the unit.9
Accordingly, we shall dismiss the complaint insofar as it alleges
that Respondent violated Section 8 (a) (5) of the Act.
C. The effects of the unfair labor practices upon con merce
The acts of Respondent described above, occurring in connection
with its operations, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, tend to lead to
labor disputes burdening and obstructing commerce and the free flow
thereof, and thus constitute unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
D. The remedy
Having found that Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) and (3) of the Act, we
shall order the Respondent to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
purposes of the Act.10
AMENDED CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire
record in this case, we hereby delete the Trial Examiner's conclusion
of law and adopt the following conclusions of law:
1. By interrogating employees as to their union membership or
sympathies, by threatening employees that it would close ifs plant
if the Union was successful in its organizational activity, by keeping
under surveillance the meeting place, the meeting, and other concerted
activities of its employees, by promising economic and other benefits
to its employees if they refrained from becoming or remaining mem-
8 Rea Construction Company, 137 NLRB 1769.
0 Having found that the Union did not represent a majority of the Respondent's em-
ployees on the critical date , we need not consider Respondent ' s defenses or the General
Counsel 's contentions with respect thereto.
10 The General Counsel stipulated at the hearing that Respondent had fully complied
with the 8 ( a) (3) provision of the settlement agreement in Case No 14-CA-3470, which
required that the discharged employee be offered reinstatement and made whole. in ac-
cordance with the Board ' s usual practice To that extent we find it unnecessary to set
aside the settlement agreement . Therefore , no such remedy will be ordered herein
HERMANN EQUIPMENT MANUFACTURING Co., INC. 721
hers of the Union or giving assistance or support to it, Respondent
has engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
2. By announcing to employees during the Union's organizational
campaign a proposed higher wage scale to be effective after the election
or at the conclusion of the organizational campaign, Respondent has
engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
3. By discharging employee Arthur Erfiing because said employee
had joined or assisted the Union, Respondent violated Section 8 (a) (3)
and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in any other unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act, as alleged
in the complaint.
6. The Regional Director for Region 14 was justified in setting aside
the settlement agreement of October 14, 1964, in Case No. 14-CA-3470.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent Hermann Equipment Company, Inc., Hermann, Missouri,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in
or sympathies with District No. 9, International Association of
Machinists, AFL-CIO.
(b) Threatening its employees by telling them it will close its
plant if the Union is successful in its organizational campaign.
(c) Keeping under surveillance the meeting place, the meetings, or
other concerted activities of its employees.
(d) Promising employees economic or other benefits to refrain
from becoming or remaining members of the Union or giving assist-
ance or support to it.
(e) Announcing to employees a new wage scale with higher rates
of pay to be effective after a Board election or the conclusion of the
union organizational activity.
(f) Discouraging membership in or activities on behalf of the
Union or any other labor organization of its employees by discharging
or otherwise discriminating against employees because of either mem-
bership in the Union or their union activity.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Hermann, Missouri, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished
by the Regional Director for Region 14, shall, after being duly signed
by Respondent's representative, be posted by Respondent 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.
(b) Notify the Regional Director for Region 14, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed insofar as it alleges violations of the Act not found herein.
MEMBER FANNING, dissenting :
For the reasons stated by the Trial Examiner in his Decision and
the additional reason set forth below, I would affirm his recommenda-
tion to dismiss the complaint.
I am unable to find any satisfactory proof that the two incidents
found violative by the majority, the Tilly conversations with Eiker-
mann and Schaumberg, actually occurred on October 15, 1964, after
the settlement agreement of October 14. A careful analysis of the
record testimony shows that respect to each incident as follows :
1. The Eikermann incident
The only reference to any date in Eikermann's testimony is as follows
during his direct examination by the General Counsel :
Q. Directing your attention to October 15, did you have any
conversation with Mr. Tilly on that day?
A. I think I did.
This is the only reference to the crucial date. Therefore on the basis
of the testimony of the witness that "I think I did" have a conversa-
tion on October 15, I am unable to accept this as proof that it actually
happened on October 15.
u In the event that this Order is enforced by a decree of a United States Court
of Appeals , there shall be substituted for the words "a Decision and Order" the words
"a Decree of the United States Court of Appeals , Enforcing an Order."
HERMANN EQUIPMENT MANUFACTURING CO., INC. 723
2. The Schaumberg incident
I find the testimony of the witness is highly conflicting, and contra-
dictory on the issue of the date alleged also to be October 15. With-
out quoting in detail the pages of record testimony as to the date, it
is sufficient to note that he first testified it was "somewhere around the
middle of October"-that he had quite a few conversations with
Tilly but gave no date. Later on when the General Counsel specifically
asked him if it was before the election of October 24, he stated it was
after the election, then retracted and said it was before. When
requested by the General Counsel to "pin it down more closely,"
Schaumberg then stated, "It was in, I'd say the latter part of Septem-
ber." He was then asked if it was before employee Erfling was rein-
stated (on October 12), and he said it was after." He was again asked
by the General Counsel if it was before or after the reinstatement of
Erfling and he replied that it was before, 'and when asked how long
before, he stated "about two weeks before," that is in September.
Respondent's counsel then moved to dismiss the allegations as it had
occurred before the settlement agreement. The General Counsel,
pleading that the witness was "confused," attempted to rehabilitate
him and directed his attention to the October 24 election. Schaumberg
then put the date 7 or 9 days before the election but said that he really
did not remember the date and could "only pin it down approximately."
Thereafter the General Counsel, on the basis of a statement made
November 9, had the witness testify that the date was October 15. On
cross-examination Schaumberg was asked, "This conversation that
you had with Tilly took place on October 15 ?" To which he replied,
"That I don't remember."
On the basis of the above confused and contradictory testimony, I
am of the opinion that the General Counsel failed satisfactorily to
prove that the Tilly-Schaumberg conversation took place after the
settlement agreement of October 14. I accordingly would dismiss the
complaint.
12 Assuming it was after the reinstatement , it would not necessarily prove it was after
October 14.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT interrogate our employees concerning their mem-
bership in or sympathies with District No. 9, International Associ-
ation of Machinists, AFL-CIO.
217-919-6 6-vol. 156-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees by telling them that we
will close our plant in the event the Union is successful in its
organizational campaign.
WE WILL NOT keep under surveillance the meeting place, the
meetings, or other concerted activities of our employees.
WE WILL NOT promise to our employees economic or other
benefits if they refrain from becoming or remaining members of
the Union or giving assistance or support to it.
WE WILL NOT inform our employees during a union organiza-
tional campaign of a proposed higher wage scale to be effective
after the election or at the end of the Union's organizational
activities.
WE WILL NOT discourage membership in the Union or in any
other labor organization of our employees by discharging or
otherwise discriminating against employees because of their union
membership or activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any and all such
activities.
All our employees are free to become, remain, or refrain from becom-
ing or remaining, members of any labor organization.
HERMANN EQUIPMENT MANUFACTURING CO., INC.,
Employer.
Dated------=--------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered. by any
other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 44459 Federal Building, 1520 Market Street, St.
Louis, Missouri, Telephone No. Main 2-4152.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, was heard in St . Louis, Missouri , on April 19, 1965, pursuant to due notice.
The complaint, which issued on February 5, 1965, on charges dated September 28
and October 28, 1964, alleged that Respondent engaged in unfair labor practices pro-
scribed by Section 8 (a)(1), (3), and ( 5) of the Act by various acts of interference,
restraint , and coercion ( i.e , interrogation , threats, promises , surveillance ), by dis-
HERMANN EQUIPMENT MANUFACTURING CO., INC. 725
criminatorily discharging Arthur Erfling on September 25, and by refusing to bargain
with the Union on and after October 2, 1964. Respondent answered denying the
allegations of unfair labor practices.
On May 24, 1965, the General Counsel filed a motion to correct the transcript in
certain particulars and a motion to reopen the hearing to receive a stipulation of the
parties. Both motions are hereby granted and the stipulation is hereby received.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, a Missouri corporation, with its principal place of business and plant
at Hermann, Missouri, is engaged in the manufacture, sale, and distribution of elec-
trically powered beverage coolers. It sells and ships annually to extrastate points
products valued in excess of $50,000. Respondent is therefore engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues; the settlement agreement
Consolidated here are two separate cases, the earlier of which, Case No. 14-CA-
3470, was the subject of a formal settlement agreement approved by the Regional
Director on October 14, 1964, and fully complied with except for the claimed breach
by the subsequent alleged unfair labor practices involved in Case No. 14-CA-3491.
Following the charge in the latter case , the Regional Director withdrew his approval
of the settlement agreement on February 5, 1965, and issued a complaint in the
consolidated cases.
The earlier case involved the bulk of the Section 8 (a) (1) allegations and the dis-
charge of Arthur Erfling. The settlement of that case included the reinstatement of
Erfling, with backpay, and the posting of a notice which covered all allegations of
unfair labor practices as well as a broad provision by which Respondent agreed not
"in any other manner" to engage in unfair labor practices.1
A representation petition was filed on October 1, a consent-election agreement
was signed on October 12 and approved on October 13, and an election was held on
October 26, with the Union receiving 8 votes, with 16 being cast against it, and with
4 challenged ballots. The Regional Director thereafter set the election aside on the
basis of Respondent's conduct which occurred after the settlement agreement and
prior to the election. The representation proceeding is still open before the Regional
Director.
There is no issue herein so far as Case No. 14-CA-3470 is concerned, for Respond-
ent withdrew at the hearing its answer to all complaint allegations which related to it.
In Case No. 14-CA-3491 the crucial issues concern an alleged promise of a wage
increase on October 15 or 16, and an alleged threat of discharge or other reprisal on
November 3, a date which was subsequent to the election. Though a refusal to bar-
gain is also charged, that portion of the case, is based on the Bernel Foam doctrine
(Berne! Foam Products Co., Inc, 146 NLRB 1277), and will depend on a finding
that Respondent, by engaging in unfair labor practices after the settlement and the
consent-election agreement, destroyed the Union's uncoerced majority and made a
fair election impossible.
Before turning to the evidence we consider preliminarily the effect to be given to
the settlement agreement in the earlier case.
It is well settled that continuing violations of the Act will breach a settlement
agreement involving unfair labor practices and will justify the Regional Director
in going behind the agreement and in proceeding with a complaint which covers
unlawful conduct both before and after the agreement. The Wallace Corporation v.
N.L R.B., 323 U.S. 248, 253-255; International Brotherhood of Teamsters, Chauf-
3 The General Counsel moved to amend the complaint at the hearing to Include other
items of Section 8(a)(1) and (3) conduct which occurred prior to the settlement agree-
ment, but upon his representation that those items were "more properly covered" by the
charge In the earlier case and that except for the filing of the new charge he would be
unable (under Section 10(b)) to proceed on them, the motion was denied.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-feurs, Warehousemen and Helpers of America , General Drivers and Helpers, Local
No. 554, AFL-CIO ( Clark Bros . Transfer Co .) v. N.L.R.B., 262 F. 2d 456, 459-461
(C.A.D.C.), enfg. 116 NLRB 1891; Bowmar Instrument Corporation , 124 NLRB 1.
However, findings of unfair labor practices can properly be made on the earlier con-
duct only where there is evidence of substantial unlawful conduct following the settle-
ment, for evidence of isolated and minor incidents will not justify the Board in going
behind the agreement . Wooster Brass Company, 80 NLRB 1633 , 1635 ; Rice-Stix of
Arkansas, Inc, 79 NLRB 1333, 1334 . See also Jackson Manufacturing Company,
129 NLRB 460 . Moreover , the Board will not appraise a respondent 's subsequent
conduct in the light of its conduct prior to the settlement for the purpose of deter-
mining whether independent unfair labor practices occurred after the settlement.
Larrance Tank Corporation , 94 NLRB 352 , 353; Baltimore Luggage Company, 126
NLRB 1204, 1208.
We accordingly consider first the postsettlement conduct to determine whether the
General Counsel established that Respondent engaged in substantial unlawful con-
duct following the settlement, and we begin necessarily by resolving an issue as to
the supervisory status of those through whom it is claimed Respondent engaged in the
conduct.
B. The issue on supervisors
Respondent operates a small plant under the immediate supervision of Plant Man-
ager Leo Birk. At peak periods, as around September 30, 1964, it employed a total
of 31 employees, a figure which includes 6 disputed leadmen 2 but which excludes
the plant manager, 2 office clericals, 2 summer students (quits), and 4 other quits.
The bulk of the employees worked in the 2 chief operational departments, 10 in
fabrication under Leadman William Tilly and 17 in assembly under Leadman Wil-
liam Wolf. Simple arithmetic thus proves there were few employees left in the other
so-called departments, i.e., machine shop, refrigeration, shipping, and painting, and
the evidence is in accord. Thus, Gosen, the machinist, worked alone in the machine
shop; Charles Stoehr was for months the only employee in refrigeration; Dennis
Koch, shipping clerk, had two employees; and Shelby See, in painting, had one or two
employees. The General Counsel contends, however, that all four of those "leadmen"
were supervisors.
Issues concerning the postsettlement conduct require determination only of the
status of Tilly and Gosen, through whom it is charged Respondent engaged in the
unfair labor practices. Only Tilly's status was litigated in detail, and as to him the
evidence plainly established that he qualified as a supervisor within the meaning of
Section 2(11) of the Act. Thus, it showed that Tilly could effectively recommend
hiring (to Birk), that he was responsible for the operation of the fabrication depart-
ment, had the power to assign the work among the men and to make changes in their
job assignments within the departments, granted time off, sketched up the work for his
department, figured the cutting sizes for steel sheets, and instructed the employees
how to perform the job based on his sketches and computations. He was compen-
sated at a rate at least 20 cents higher than the employees.
No satisfactory record was made concerning the duties of any of the other leadmen,
including Gosen, the General Counsel contenting himself with Birk's testimony that
the other leadmen had the same right as Tilly to recommend hiring. That fact, if
literally true, could not establish supervisory authority for a "leadman" like Gosen,
who was without employees to direct. Thus, Gosen spent all of his time working in
the machine shop, and though at times another employee might be assigned to work
with him, Gosen instructed the man what was to be done and then went about his own
work as a machinist.3
On this record I conclude and find that the General Counsel established that Tilly
was a supervisor but failed to establish that Gosen was.
C. Postseitlement conduct; Case No. 14-CA-3491
A single incident involving Gosen could be eliminated by my finding that he was
not a supervisor but for the allegation that Birk also participated in it. William
Schaumberg testified that on November 3, Gosen upbraided him for trying to get a
2 Respondent stipulated at the hearing that there were three leadmen but contended
that none was a supervisor. The General Counsel then claimed five leadmen (apparently
conceding that Joseph Gosen, machinist, did not qualify), but now claims six and con-
tends that all were supervisors
$ William E. Schaumberg testified that Gosen once asked him to do a piece of welding
and that he did it but that he did not consider Gosen to be a boss of his.
HERMANN EQUIPMENT MANUFACTURING CO., INC . 727
union in the plant and cursed him to boot. Birk came up from behind them as the
conversation ended and said, "This bull shit has got to stop." Schaumberg testified
that he did not whether Birk heard Gosen's remarks. I therefore conclude and find
that the General Counsel failed to establish that Respondent was responsible for
Gosen's statements. It is also to be noted, aside from the foregoing, that the state-
ments could have had no effect on the results of the election, which had occurred
some 8 days earlier.
Milton Eikermann testified hazily to a conversation with Leadman Tilly on Octo-
ber 15, stating that as well as he could remember, it concerned some wage contract
or scale which Tilly said he and James McElroy (Respondent's acting president and
general manager) either had drawn up or were going to draw up before the election
under which the employees would get either a little more or a little less, depending
on what their employment was. Tilly represented that the scale would be $1.85,
higher or lower, on Eikermann's line. Eikermann was making $1.50 at the time.
Tilly said nothing about whether the scale would have the sanction of management
and nothing about when it would be effective.
Schaumberg testified that on October 15 or 16, Tilly stated that he and Heck (an
employee) had worked out a wage scale and had presented it to McElroy, but did
not say whether McElroy said anything about it. Tilly stated that under that scale
the top rate for welding would be $2.09 an hour and there would be four employees,
including Schaumberg, who would receive top money. Schaumberg was making
$1.85 at the time. Tilly stated that the new scale would go in, "As soon as this bull
shit [is] over "
Tilly's statements must be measured against the complaint allegations that Tilly
offered and promised wage increases to employees to refrain from becoming or
remaining members of the Union, or giving it assistance or support, or in order to
induce them to do so. But the testimony of Schaumberg and Eikermann was too
vague and indefinite to support a finding either that Tilly was promising a wage
increase or that it was to be related to union membership or the lack of it. Certainly
no sanction of management was indicated by Schaumberg's testimony, which showed
neither comment nor commitment on McElroy's part, nor was there any suggestion
that (if and when adopted) the scale would somehow be related to union membership.
Eikermann's testimony in turn was characterized by his admitted difficulty in recall-
ing the facts, other than that Tilly said something about a wage scale or contract
which he and McElroy were arranging to work out, under which some employees
would receive a little more and others a little less than they were earning. Tilly gave
no indication as to when the new scale would become effective and there was again
no reference to the Union, to union membership, or to the impending election.
I therefore conclude and find that the evidence in its entirety fails to establish that
(1) Respondent offered or promised wage increases as alleged or (2) by Tilly's refer-
ence to the wage scale Respondent was attempting to induce employees to refrain
from becoming or remaining members of the Union.
Even were Tilly's statements regarded, contrary to my findings, to be violative of
Section 8(a) (1), they were too minor in character to warrant the issuance of a reme-
dial order. Middletown Manufacturing Company, Inc, 141 NLRB 234-235; Lawn-
Boy Division Outboard Marine Corp., 143 NLRB 535, 546. And since in no event
would they constitute "substantial unlawful conduct" by Respondent during the post-
settlement period, Porto Mills, Inc., 149 NLRB 1454, they would not justify setting
aside the settlement. Hudson Oil Company of Mo., Inc., 152 NLRB 1393.
The foregoing findings also dispose of the alleged refusal to bargain, for the elec-
tion, lost by the Union, proceeded by consent after approval of the settlement agree-
ment which fully disposed of all prior unfair labor practices. As Respondent engaged
in no subsequent unfair labor practices, there is no evidentiary support for the Gen-
eral Counsel's contentions (in reliance on Bernel Foam, supra, and Irving Air Chute
Company, Inc., 149 NLRB 627) that Respondent's admitted rejection of recognition
was not motivated by good-faith doubt of the Union's majority and that it consented
to the election to gain time to dissipate that majority. Regardless of what the Regional
Director's investigation file may have shown,4 the present record does not establish
that Respondent engaged after the settlement agreement in unlawful conduct to destroy
the Union's majority or which improperly affected the election results. I therefore
conclude and find that the General Counsel did not establish that Respondent refused
to bargain within the meaning of Section 8(a) (5).
* Statements made by the General Counsel during the hearing showed that the evidence
did not develop according to his expectations on important aspects of the case.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I find that Respondent did not breach the settlement agreement by engaging in
subsequent unlawful conduct , I shall recommend that the settlement agreement be
reinstated without passing upon the conduct which occurred prior thereto . Conroe
Creosoting Company, 149 NLRB 1174 , and see cases cited in section A, supra.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its entirety and that the settle-
ment agreement in Case No. 14-CA-3470 be reinstated.
Colony Furniture Co. and United Furniture Workers of America,
AFL-CIO. Case No. 26-CA-1937. January 11,1966
DECISION AND ORDER
On September 17, 1965 , Trial Examiner James A. Shaw 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 Examiner's
Decision . The Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor practices and recom-
mended dismissal thereof . The General Counsel filed exceptions to
the Decision and a supporting brief , and the Respondent filed cross-
exceptions and a brief in support thereof and in opposition to General
Counsel 's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National . Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case , including the
exceptions and briefs , and hereby adopts the findings, ,conclusions, and
recommendations of the Trial Examiner, with the following additions,
and modifications.'
1.. Although the Trial Examiner credited the testimony of employee
Stenhouse as to the conversation he heard between employee Charles
and Plant Foreman Davis and found Davis ' statement to Charles
1 Under the established policy not to overrule a Trial Examiner 's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were in-
correct, we find no basis for disturbing the credibility findings made by the Trial Examiner.
in this case . Standard Dry Wall Products , Inc., 91 NLRB 844 , enfd . 188 F. 2d 362 (C.A. 3).
156 NLRB No. 71.