Hibbard Dowel Co.

National Labor Relations Board - Board Decisions

Feb 27, 1958

119 N.L.R.B. 1763 (N.L.R.B. 1958)

HIBBARD DOWEL CO. 1763
Harold Hibbard and Ben R . Stein , individually and as a partner-
ship , d/b/a Hibbard Dowel Co. and Local 18-B, Furniture and
Bedding Workers Union , United Furniture Workers of Amer-
ica, AFL-CIO. Case No. 13-CA-92165. February 27, 1958
DECISION AND ORDER
On May 8, 1957, Trial Examiner Lee J. Best issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices in
violation of the Act and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. He also found that the
Respondents had not unlawfully discharged Hase Jackson and recom-
mended dismissal of the complaint with respect thereto.' Thereafter,
the Respondents filed exceptions to the Intermediate Report accom-
panied by a supporting brief, and the General Counsel filed a brief in
support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions, additions, and
modifications noted below.
1. We agree with the Trial Examiner that the Respondents violated
Section 8 (a) (1), 8 (a) (2), 8 (a) (3), and 8 (a) (5) of the Act, as
more fully set forth in the Intermediate Report,' for the reasons
indicated by him, with the following exceptions, additions and
modifications :
(a) On the basis of Edward Barnes' credible testimony, we find, in
addition, that: (1) In February or March 1956, before Barnes' dis-
charge, Barnes was told by Superintendent Belcher in substance that
the Respondents planned to get rid of the Charging Union, Local
18-B, including Barnes; and (2) Barnes, contrary to the Respondents'
BAs no exception has been taken to this recommendation , we shall dismiss the complaint
inasfar as it alleges that the Respondents violated Section 8 (a) (3) of the Act by dis-
charging Jackson
2 Except for contentions urging dismissal of the entire complaint , hereinafter con
-idered, no exception was taken to the Trial Examiner ' s 8 (a) (1 ) and 8 ( a) (2) findings
The Respondents ' exceptions to the Trial Examiner 's 8 (a) (5 ) findings on the merits ace
limited to a contention , hereinafter considered , that the Trial Examiner erred in finding
that an agreement as to the terms of a contract was reached during the course of the
heal ing in this case
119 NLRB No. 22:i
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention, did not threaten Belcher on the day preceding Barnes' dis-
charge, or at any other time. In reaching our conclusions, we rely
on the foregoing as well as the circumstances relied on by the Trial
Examiner in finding that the Respondents violated Section 8 (a) (3)
of the Act by discharging Barnes, Matt Lewis, James Lester, Guy
Hamblet, and A. C. Starks.
(b) The Trial Examiner found, on the basis of his own knowledge.
as to what occurred in his presence at an off-the-record conference dur-
ing the hearings, that the Respondents agreed with Local 18-B upon:
the terms of a contract. Accordingly, he recommended the entry of'
an order directing the Respondents, upon request of Local 18-B, to
execute a contract embodying the agreement so reached. As there is
no testimony in the record as to what transpired at the off-the-record
conference, we do not adopt the finding that the parties reached an
agreement upon terms of a contract during the course of the hearing
and do not consider this in finding a violation of Section 8 (a) (5)
Hence we shall issue our normal bargaining order.
2. The Respondents now urge dismissal of the entire case because
of alleged misconduct on the part of the attorney for the General
Counsel and on the part of the Trial Examiner. We have examined
the entire record and find no merit in these contentions for the reasons
hereinafter indicated.
As to alleged misconduct of the attorney for the General Counsel,
the record shows the following : Harold Hibbard, one of the Respond-
ents, called by the General Counsel as a hostile witness, testified with-
out objection, in response to a question by the attorney for the General
Counsel as to when the Respondents last met with Local 18-B, that
the attorney for the General Counsel made a threat to the Respondents
in which he warned that a complaint would issue unless the Respond-
ents signed a contract with Local 18-B. The Respondents' answer
contained no allegation of any misconduct on the part of the General
Counsel. The General Counsel made no attempt to refute this aspect
of Hibbard's testimony. The Trial Examiner made no reference to
this testimony in his Intermediate Report. As such testimony had
no bearing on the issues framed by the pleadings in the case we
conclude that no valid basis exists for dismissal on the asserted ground
that the General Counsel engaged in misconduct. Moreover, assum-
ing arguendo, that such a threat was made, we note that the Respond-
ents committed the bulk of the unfair labor practices found before
the making of such threat,' and the finding of the violations and the
necessity of purging them could not be affected by the making of
3 These unfair labor practices found include violations of the four separate sections of
the Act alleged in the ouignal complaint as having been violated. They do not include the-
following additional violations found, first alleged in the complaint as amended , which-
occurred after the making of the alleged threat
and (2) the unilateral granting of a wage increase
(1) The failure to furnish wage data.
HIBBARD DOWEL CO. 1765
,such a threat. Furthermore, the record does not establish that the
Respondents' bargaining position was in any way impaired as a
result of the alleged misconduct of the attorney for the General
Counsel or that they were in any way prejudiced thereby.
As to the charge of misconduct on the part of the Trial Examiner,
-the record shows that, during the course of the hearings in this
case, on several occasions the Trial Examiner suggested to the parties
that the Respondents and Local 18-B engage in further bargaining
meetings with the view of reaching an agreement and suspended the
hearing for that purpose; and that, on one occasion, the Trial
Examiner stood by while such negotiations were carried on. On the
basis thereof, the Respondents contend that the Trial Examiner
engaged in conciliation or mediation in contravention of Section
4 (a) of the Act, requiring dismissal of the complaint. As already
indicated, there is no merit in this contention. Giving the words of
the statute their ordinary meaning, we do not regard the Trial
Examiner's conduct as amounting to conciliation or mediation in the
statutory sense." Although the Trial Examiner suggested bargaining
and was present on one occasion while the parties bargained , so far as
appears, the Trial Examiner did not participate in any way in the
bargaining negotiations themselves. At the hearings the Trial
Examiner specifically stated that he was not trying to force anyone
to reach an agreement. While, perhaps, better practice would have
dictated that the Trial Examiner should have confined himself to the
trial of the case rather than taking the initiative in suggesting further
bargaining negotiations, and that at the least he should have absented
himself at all times while the parties engaged in collective bargaining,
we conclude that the Trial Examiner did not perform any conciliation
or mediation functions, or so conduct himself as to require dismissal
of the complaint. Moreover , the Respondents engaged in the bar-
4 In pertinent part , Section 4 ( a) of the Act provides : "Nothing in this Act shall be
construed to authorize the Board to appoint individuals for the purpose of conciliation
or mediation , . . . ' These terms , conciliation and mediation, in their common usage, are
thus defined in Warren and Bernstein , The Mediation Process ( reprint from the Southern
:Economic Journal, vol . %V, No. 4 , April 1949 , at p 441)
Conciliation is the mildest form of intervention by a third party to bring about a
settlement . It may be conducted by one or several persons who normally act as
government representatives. The conciliator may effect an agreement by his presence
and personality alone. He exerts authority only to the extent of calling conferences,
keeping the discussion on a friendly basis, controlling the order of business, and
carrying the proposals of one side to the other Conciliation does not involve making
positive recommendations . Finally, the conciliator has no power to impose terms.
[Emphasis supplied ]
Mediation , though often used synonymously with conciliation , is a more affirmative
procedure . The disputants , however, remain free to reject the process or the pro-
posals . It may be conducted by one or more persons and may be nonpartisan, bi-
partite , or tripartite . When the conciliator fails, the mediator steps in to offer
specific recommendations Hence he must bring greater powers of analysis and
imagination , broader experience and knowledge, wider influence and prestige, and
increased moral courage. His proposals may either be substantive or procedural, a
form of the latter being a suggestion to arbitrate [Emphasis supplied ]
1766 DECISION S OF NATIONAL LABOR RELATIONS BOARD
gaining negotiations in question at the request of the Trial Examiner
without making any objection at the hearings to the Trial Examiner's
conduct on this score. The Respondents asserted the charge of alleged
misconduct on the part of the Trial Examiner for the first time after
the Trial Examiner issued his adverse Intermediate Report. The
Respondents thus speculated on the Trial Examiner's decision before
charg)ng him with improper conduct at the hearings. The charge
comes too late and hence is untimely made as well as lacking in merit.
Furthermore, we have concluded above that the record did not estab-
lish that the parties reached an agreement as to the terms of a contract
during the course of the hearings and accordingly did not consider
this in finding a violation of Section S (a) (5) nor adopt the recom-
mended order to execute such a contract. We have thereby removed
the impact of this conduct. So far as appears, the Respondents were
in no way prejudiced thereby. We are not convinced that the Trial
Examiner became biased, or otherwise unfair, as a result of the break-
down in bargaining negotiations which had been resumed at his
instance. The record fully supports his findings, which we have
adopted, that the Respondents engaged in the unfair labor practices
found. Indeed, the record clearly establishes that the Respondents
failed to bargain in good faith and engaged in other unfair
labor practices as found by the Trial Examiner before the hearings
in this case.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Harold Hibbard
and Ben Stein, individually and as a partnership, doing business as
Hibbard Dowel Co., Chicago, Illinois, their agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Threatening employees with it plant shutdown, discharge of
employees, or any other reprisal for engaging in strike activity spon-
sored by Local 18-B, Furniture and Bedding Workers Union, United
Furniture Workers of America, AFL-CIO, or any other labor organi-
zation, or in any other protected union activities.
(b) Offering promotions, wage increases, or any other benefits, to
induce employees to refrain from engaging in protected union activities
sponsored by the aforesaid named labor organization, or any other
labor organization.
(c) Unlawfully assisting or contributing financial or other support
to Local 705, Production and Miscellaneous Workers Union of Chicago
and Vicinity, or any other labor organization.
(d) Discouraging membership in Local 18-B, Furniture and Bed-
ding Workers Union, United Furniture Workers of America, AFL
HIBBARD DOWEL CO. 1767
CIO, or any other labor organization, by discharging or in any other
manner discriminating in regard to the hire or tenure of employment
of their employees.
(e) Refusing to bargain collectively in good faith with Local 18-B,
Furniture and Bedding Workers Union, United Furniture Workers
of America, AFL-CIO, as the exclusive representative of all
employees in the appropriate unit, with respect to wages, hours, and
other terms and conditions of employment.
(f) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist Local 18-B, Furniture and Bedding Workers
Union, United Furniture Workers of America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid and protec-
tion, or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 18-B Furniture
and Bedding Workers Union, United Furniture Workers of America,
AFL-CIO, as the exclusive representative of the employees in the
appropriate unit, and embody in a signed agreement any understand-Zr,
ing reached.
(b) Offer to Matt Lewis, Guy Hamblet, A. C. Starks, and Edward
Barnes immediate and full reinstatement to their former or substan-
tially equivalent positions 5 without prejudice to their seniority and
other rights and privileges of employment, and make each of them
whole for any loss of pay suffered by reason of the discrimination
against them by the payment to each of a sum of money equal to the
amount he would normally have earned from the date on which his
employment was terminated by the Respondents to the date on which
Respondents shall offer to him proper reinstatement as herein pro-
vided, less net earnings,' to be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Company, 90 NLRB 289, and
N. L. R. B. v. Seven-up Bottling Company, 344 U. S. 344. Earnings
in one particular quarter shall have no effect upon the back-pay
liability for any other such period.
(c) Make whole the personal representative of James Lester, de-
ceased, and any other person or persons whose interest may appear,
in a like manner for any loss of pay suffered by reason of the discrimi-
See Chase National Bank, 65 NLRB 827
a See Crossett Lumber Company, 8 NLRB 497-498
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation against James Lester by the payment to his personal repre-
sentative, or any other person or persons legally entitled thereto, of a
sum of money equal to the amount he would normally have earned
from the date on which his employment was terminated by the Re-
spondents to the date of his death on September 22, 1956.
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze, compute, and determine
the amounts of back pay and other employment rights to which the
aforesaid discriminatees may be entitled under the terms of this Order.
(e) Post at their plant in Chicago, Illinois, the notice attached
hereto marked "Appendix." I Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by each of the Respondents, be posted by them imme-
diately upon receipt thereof and maintained for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that such notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondents violated Section
.8 (a) (3) of the Act by discharging Hase Jackson.
7 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
- Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT promise benefits to our employees, threaten to
close the plant and discharge them, or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join or assist Local 18-B,
Furniture and Bedding Workers Union, United Furniture Work-
ers of America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the exent that
HIBBARD DOWEL CO. 1769,
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment in
accordance with the provisions of Section 8 (a) (3) of the Act.
WE WILL NOT contribute unlawful assistance or-support to Local
705, Production and Miscellaneous Workers Union of Chicago,
and Vicinity, or any other labor organization.
We WILL NOT discourage membership in Local 18-B, Furniture
and Bedding Workers Union, United Furniture Workers of
America, AFL-CIO, or any other labor organization, by dis-
charging or in any other manner discriminating against our
employees in regard to hire or tenure of employment or any term
or condition of employment.
WE WILL offer to Matt Lewis, Guy Hamblet, A. C. Starks, and
Edward Barnes immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other employment rights and privileges, and make
each of them, and the personal representative of James Lester,
deceased, whole for any loss of pay they may have suffered by
reason of the discrimination found.
WE WILL, upon request, bargain collectively in good faith with
Local 18-B, Furniture and Bedding Workers Union, United
Furniture Workers of America, AFL-CIO, as the exclusive
representative of our employees in the appropriate unit, with
respect to wages, hours, and other terms and conditions of employ-
ment, and WE WILL jointly execute with said Union a written con-
tract incorporating any agreement reached. The bargaining-
unit is :
All production and maintenance employees at our plant
in Chicago, Illinois, excluding office clerical employees, pro-
fessional employees, guards, and supervisors as defined in,
the Act.
WE WILL NOT in any manner infringe upon the rights of em-
ployees guaranteed in Section 7 of the Act. All our employees
are free to become and remain or to refrain from becoming or
remaining members of any labor organization, except as that
right may be affected by an agreement authorized in Section 8
(a) (3) of the Act.
HIBBARD DOWEL COMPANY,
Employer.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or covered by any other material.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized by Section 10 of the National Labor Relations Act,
as amended, 61 Stat.•136, herein called the Act, were heard before the duly designated
Trial Examiner in Chicago, Illinois, on October 30 and 31, and November 1 and 2,
1956, and February 5 and 11, 1957. Upon charges filed by Local 18-B, Furniture
and Bedding Workers Union, United Furniture Workers of America, AFL-CIO,
herein called Local 18-B or the Union, the General Counsel of the National Labor
Relations Board issued a complaint against Harold Hibbard and Ben R. Stein,
individually and as a partnership, d/b/a Hibbard Dowel Company, herein called
Respondents or Respondent Company, alleging that they engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1), (2), (3), and (5)
and affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
The complaint more specifically alleges in substance that Respondents (1) inter-
fered with, restrained, and coerced its employees in the exeicise of rights guaranteed
in Section 7 of the Act by threats of discharge and closing down the plant by
reason of their organizational activities, and promised certain benefits if they would
refrain therefrom; (2) unlawfully assisted and supported another labor organization
in efforts to destroy the majority status of Local 18-B as the recognized and ex-
clusive bargaining agent of its employees for the purposes of collective bargaining;
(3) discriminated in regard to hire and tenure of employment to discourage mem-
bership in a labor organization; and (4) refused to bargain in good faith with
Local 18-B as the recognized and later certified exclusive bargaining representative
of its employees for the purposes of collective bargaining with respect to wages,
hours, and other terms and conditions of employment.
In due course the Respondents filed an answer admitting jurisdiction of the Board,
but denying all allegations of unfair labor practices.
All parties appeared at the hearing with counsel, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and introduce evidence
pertinent to the issues involved, to argue orally upon the record, and within the
time fixed by the Trial Examiner to file written briefs and proposed findings of fact
and conclusions of law Briefs thereafter filed by Respondents and the General
Counsel have been given due consideration.
Upon the entire record in the case, and from my observation of the witnesses
on the stand, I make the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENTS
Hibbard Dowel Company is a partnership composed of Harold Hibbard and
Ben R. Stein, organized and existing by virtue of the laws of the State of Illinois.
Respondents maintain their principal office and operate a manufacturing plant in
the city of Chicago, where they engage in the fabrication and sale of dowel pins.
Harold Hibbard is managerial partner in the business and exercises supervisory
control of the office and plant. Ben R. Stein engages in a variety of business
enterprises, devoting part time to the partnership business, and exercises equal
authority with Hibbard in the determination of policy with respect to labor rela-
tions and the negotiation of collective-bargaining agreements with labor organi-
zations Respondents employ Rose Grossman as confidential secretary, bookkeeper,
and sole office employee in charge of clerical work pertaining to the partnership
business. Respondents employ Howard L. Belcher as shop superintendent and
machinist in charge of production operations in the plant, and his son, Virgil Belcher,
as an assistant foreman. Howard L. Belcher has full authority to hire and fire
employees, but does not participate in the determination of company policies.
Under his supervision, approximately 30 to 40 people of the Negro race are em-
ployed in the plant and none of them are classified as skilled labor.
In the course and conduct of the partnership business during the year 1955,
Respondents purchased raw materials valued at approximately $100,000, all of
which was shipped to the Chicago plant from points outside the State of Illinois.
During the same period, Respondents manufactured and shipped outside said State
finished products valued in excess of $250,000.
I find, therefore, that Respondents are engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
HIBBARD DOWEL CO. 1771
It. THE LABOR ORGANIZATIONS INVOLVED
Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers
of America, AFL-CIO; and Local 705, Production Miscellaneous Workers Union
of Chicago and Vicinity, are labor organizations within the meaning of Section 2
(5) of the Act; and for the sake of brevity will hereinafter be respectively designated
as Local 18-B and Local 705.
III. THE UNFAIR LABOR PRACTICES
A. Basic outline of events
From the evidence in this case and the record in Cases Nos. 13-CA-1703 and
13-CB-328, decided July 7, 1955, it appears that Local 18-B, an affiliate of CIO,
began organizing Respondents' employees in January 1954. While the drive was on,
and without any showing of majority representation, Respondent Company entered
into a union-security agreement with Local 189, Building Service Employees Union,
AFL, thereby requiring its employees to become members of the latter union as
a condition of employment. All employees remained involuntary members of that
labor organization until the Board issued its decision and order in Hibbard Dowel
Co. et als., 113 NLRB 28-41 (1955), requiring the parties to cease and desist from
giving effect to their unlawful contract. Respondent Company was ordered to
withdraw all recognition of aforesaid Local 189 until certified by the Board as the
bargaining representative of its employees in an appropriate unit. Thereafter on
August 26, 1955, Local 18-B filed a representation petition in Case No. 13-RC-4544,
and Local 189 disclaimed any further interest in the question of representation.
Thereupon the Respondent Company voluntarily recognized Local 18-B and nego-
tiated with its representatives until the latter part of November 1955, when Local
705, Production and Miscellaneous Workers Union of Chicago and Vicinity, made
an unheralded appearance in the plant, attempted to sign up employees, and inter-
vened in the pending representation case. Respondents then refused to negotiate
further with Local 18-B until an election was held on March 27, 1956, and Local
18-B was certified by the Board on April 4, 1956, as exclusive representative of
Respondents' employees for the purpose of collective bargaining in the appropriate
unit consisting of all production and maintenance employees at the Employers'
Chicago, Illinois, plant, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act Thereupon, negotiations between
Respondents and Local 18-B were resumed, and have continued intermittently until
the present day without satisfactory results or the execution of a written collective
bargaining agreement.
B. The period August-November 1955
Having filed a representation petition on August 26, 1955, representatives of
Local 18-B sought a conference with Respondent Company with respect to its com-
pliance with the order of the Board in Cases Nos 13-CA-1703 and 13-CB-328,
which inter alia required that employees be reimbursed for dues and fees checked
off pursuant to the unlawful union-security agreement with Local 189. At an in-
formal discussion in September 1955, with the Respondent partners, Harold Hibbard
and Ben R. Stein, the representatives of Local 18-B exhibited membership cards
signed by 28 out of a total of 31 employees in the plant; whereupon, Respondents
waived inspection of the cards, and agreed to recognize Local 18-B as their bar-
gaining representative. Negotiations with respect to a contract ensued, and Business
Agent Sam P. Sloan agreed to prepare and submit written proposals. Two copies of
written proposals for a 2-year contract were submitted to Hibbard and Stein jointly
at a second meeting in their office about the middle of October 1955. At a third
meeting on October 20, 1955, in the office of David Rothstein, attorney for Local
18-B, the written proposals were discussed with Respondent Company. At a fourth
meeting at Respondents' office on November 3, 1955, the negotiating parties reached
an agreement for a revision of the written proposals with respect to vacations set
forth in section 3, article XIII thereof, and as to section 1, article XIV, pertaining
to employee insurance, by changing the effective date thereof from November 1,
1955, to November 1, 1956. Minor revision with respect to grievances and seniority
was also agreed upon. In view of the agreements reached, a proposed written
contract was then drafted by representatives of Local 18-B, and submitted to Hibbard
and Stein in their office at the fifth meeting on November 25, 1955. Ben R. Stein
(partner) thereupon expressed a desire to submit the proposed contract to his
attorney for approval, and the meeting was adjourned until November 29, 1955.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the latter date the representatives of Local 18-B returned to Respondents' office-
and conferred with Harold Hibbard in the absence of Ben R. Stein. Hibbard
expressed his approval of the proposed written contract, but deferred its execution
to confer with his sister, who was supposedly an interested party. Consequently,
the parties agreed to meet again on December 1, 1955, for the purpose of signing
the contract. On December 1, 1955, the representatives of Local 18-B returned
to Respondents' office with the expectation of completing the negotiations and sign-
ing the contract. Upon arrival they found five representatives of Local 705 in
Respondents' office busily engaged in organizational efforts, and the partners were
not available for a conference. Among those present in Respondents' office, Business
Agent Sam P. Sloan of Local 18-B recognized the Costello brothers, representatives
of Local 705. Later during that day, Business Agent Sloan called Respondnets'
office by telephone. Harold Hibbard at the time disclaimed any authority to
negotiate, and told Sloan to get in touch with Ben R. Stein. In a telephone con-
versation within a day or two thereafter, Ben R. Stein notified Sloan that another
union was now interested in there and expressed doubts whether Local 18-B now
represented a majority of the employees. Respondents thereby broke off all nego-
tiations with Local 18-B, as a result of which the Board was requested to proceed
with the Representation Case No. 13-RC-4544.
C. The intervention of Local 705
On or about December 1, 1955, 4 or 5 representatives of Local 705, Production,
and Miscellaneous Workers Union of Chicago and Vicinity, appeared at the plant
office of Respondents before work hours, and were denied admission by Matt Lewis-
(janitor) until Superintendent Howard Belcher arrived. Shortly thereafter they
followed Belcher through the office, and in his presence began to solicit the member-
ship and support of employees at work in the plant. Matt Lewis told them that
another union was representing the employees, and also cautioned his fellow
employees not to sign any cards for them. Superintendent Belcher also allegedly
told them that Respondents were negotiating a contract with another union, but
they told him to mind his own business; whereupon, Belcher reported the matter
to Mr. Stein in the office, and took no further action about the intrusion. When-
examined at the hearing, Harold Hibbard testified as follows:
Nobody let them in. They walked in. I barged out, and had a fight with
them. I couldn't tell you who they were. I asked them what do they want in
my plant. I said "you get out of this plant." They said "we are going to-
organize this plant. There is no union in here. We'll get out when we are
ready, and we will be ready in a few minutes." I called the police, and they
had vacated already.
Ben R. Stein testified that he was in New York, Washington, or Miami, and:
received a telephone call from Hibbard, possibly in New York, saying there was
another union in the plant-that he told Hibbard to just sit still until he got back.
Later during the hearing, Stein testified that he received a telephone call at his home
in Chicago saying that Local 705 was around trying to organize his plant-that he
rushed down, but they were gone. He further testified that a fellow named Tom
came to his office claiming to have signed cards, but did not show them. When he-
told this stranger that Respondents were negotiating with Local 18-B, the man said,
"you don't negotiate with anyone, because if you do, I will stop your trucks."
Thereupon, Stein allegedly called Business Agent Sam P. Sloan, and told him to get
it straightened out-that Sloan replied, "Well, if they don't strike you, I will."
Then he went out into the plant and made a speech to the employees, telling them
in substance that it made no difference with him whether the plant was open or
closed, because he had enough money to live on-that he was not interested in which
union represented them, but he would not tolerate their walking off the job.
Seven or more witnesses for the General Counsel credibly testified that Ben R.
Stein made a speech to employees on January 11, 1956, and said in substance that
the plant would be closed down if they went on a strike, and that all of them would
be automatically fired-that he had enough money to last the rest of his life-that
it made no difference with him what union came in-that Local 705 was the only
one that could pull a strike.
Pending the election in March 1956, Rose Grossman (office secretary) admittedly
called individual employees including Edward Barnes (shop steward) into the plant
office and solicited their support for Local 705 Although not a uni"n member
herself, she talked to representatives of Local 705 when they visited Respondents'
office, and agreed to work for that organization. Thereafter, she was also selected
by and served as official observer for the Respondent Company at the election on
HIBBARD DOWEL CO. 1773
March 27, 1956, and as its representative signed the tally of ballots and certification
-on conduct of election in Case No. 13-RC-4544.
Edward Barnes (shop steward) credibly testified that pending the election in
March 1956, Superintendent Howard Belcher frequently discussed the organiza-
tional activities with him, asserted that his future in the plant was dependent upon
Local 705 winning the election, and proposed that he resign as shop steward for
Local 18-B and begin training for the job of a foreman. Following this proposal
Barnes was called into the office by the partners, Harold Hibbard and Ben R. Stein,
and told that Superintendent Belcher would soon be replaced because of his advancing
age, and they had selected him for training in the job if he would resign his steward-
ship with Local 18-B. At that time he also received a wage increase of 5 cents
per hour. About 2 weeks before the election he was again called into the office
with 4 other employees (Annette Coleman, Evelyn Green, Nettie Ballard, and
Johnny King) and in the presence of Hibbard and Stein requested by representatives
of Local 705 to sign their names to a contract providing for an increase in wages
and insurance benefits. All refused to sign.
D. Discriminatory discharges
The intervention of Local 705 and Respondents' apparent cooperation in an
abortive attempt to supersede Local 18-B as bargaining representative of employees
in the plant undoubtedly stimulated the efforts of the latter organization to maintain
its majority status. Under the leadership of Edward Barnes, transportation was pro-
vided on Tuesday and Friday afternoons for the members to go directly from work
to meetings at the union hall. Superintendent Belcher observed this and other activ-
ities, and made frequent inquiries of Barnes and others about the meetings . During
the organizational activities prior to the election the Respondents discharged Matt
Lewis on December 30, 1955, James Lester on January 9, 1956, Hase Jackson on
January 16, 1956, Guy Hamblet on January 20, 1956, A. C. Starks on January 28,
1956; and finally Edward Barnes on March 29, 1956, following the election held
on March 27, 1956. All of the dischargees were members of and had participated
in the organizational activities of Local 18-B. Lester, Jackson, Hamblet, Starks,
and Barnes had testified as witnesses for the General Counsel in Cases Nos.
13-CA-1703 and 13-CB-328, wherein the unlawful union-security agreement between
Respondents and Local 189 was set aside in July 1955. All of them had been invol-
untary members of Local 189 until the Respondents were ordered to withdraw
recognition therefrom, and thereafter resumed their affiliation with Local 18-B.
Matt Lewis had been employed as janitor and fireman since March 19, 1955.
His duties included keeping fire and water in the boiler utilized to heat the plant.
On or about December 22, 1955, the safety plug on the boiler blew out due to
inefficient operation of an automatic pump that supplied water, and it became
necessary to control the water supply by use of a hand valve. On several oc-
casions in December, Superintendent Belcher criticized him for neglecting his duties
in connection with the boiler. On December 29, 1955, Lewis complained that he
was sick with a headache, but nevertheless remained on the job for the remainder
of the day. Somewhat indisposed he reported about 15 minutes late for work on
the morning of December 30, 1955. Superintendent Belcher came in and com-
plained that the plant was cold and threatened to discharge him. Lewis admitted
being late, but contended that the heat was sufficient when the employees arrived
at 8 a. in. He also complained that for the past several weeks he had been unable
to satisfy Superintendent Belchei. When Belcher threatened to discharge him,
Lewis admits that he said, "Well, you go ahead and do that because that's something
I can't stop you from doing."
Superintendent Belcher testified that Lewis said, "Well, God damn it, fire me."
Thereupon, he told Lewis, "Okay, come on in, and I will give you your time," and
by reason of that statement Lewis was discharged
Matt Lewis credibly denied using any profanity. Having credited. his testimony,
and from all other circumstances peculiar to this case, I find that the cause for
discharge alleged by Respondents was merely a pretext to get rid of a loyal and
active adherent of Local 18-B and to discourage membership in a labor organiza-
tion.
James Lester (now deceased) had been employed by Respondents for more than
3 years to carry lumber from the outside into the plant, and when not so engaged,
to help the operator of a cutoff saw inside the shop. Superintendent Howard
Belcher testified that on several occasions he had reprimanded Lester for loafing
around the boiler, and upon finding him there on January 9, 1956, said, "If you don't
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to put in lumber, come on in, and I'll pay you off." Belcher contends that
he consulted and obtained the approval of Shop Steward Edward Barnes before
discharging Lester. To the contary, Edward Barnes credibly testified that he in-
vestigated and found that the shop was well supplied with lumber, so he remon-
strated first with Superintendent Belcher for discharging the man for stopping at the
boiler to warm his feet, and then interceded with Mr. Hibbard in the office.
Hibbard rebuffed him, however, by saying, "Whenever Howard fires somebody
he is fired."
Having credited the testimony of Edward Barnes, and from the peculiar cir-
cumstances of this case, I find the alleged cause for discharge of James Lester was
frivolous, unwarranted, and a pretext to rid the Respondents of a loyal supporter of
Local 18-B to discourage membership in a labor organization.
Huse Jackson had been employed by Respondents since March 1954, as a machine
and ripsaw operator. Jackson admitted that on one Saturday in September 1955.
Superintendent Belcher and Mr. Hibbaid had accused him of being intoxicated
and sent him home from work. He admitted being sent home at other times for
lack of work in the shop. Jackson testified that he was sick on January 14, 1956.
and failed to either notify Respondents or report for work-that on Monday,
January 16, 1956, he went to the plant and found his timecard removed He talked
to both Belcher and Hibbard. and both refused to employ him any longer.
Both Belcher and Hibbard testified that Hase Jackson came to work on Saturday,
January 14, 1956, in such a drunken condition that they were afraid to permit him
to work around the ripsaw and other machines. They consulted Shop Steward
Barnes, and all agreed that the man was drunk Having sent him home on previous
occasions for the same reason, and because he had frequently failed to show up for
work, they discharged him.
From a preponderance of the evidence 1 find that Hase Jackson was discharged
for justifiable cause and not for discriminatory reasons It will be recommended,
therefore, that the complaint with respect to the discharge of that employee be
dismissed
Guy Hamblet had been employed as a dowel machine opeiator by the Respondent
since February 1954. His grandmother (Mattie Crowder) died during the night of
January 20, 1956, and he failed to report for work at Respondents' plant on Satur-
day, January 21, 1956. That same afternoon, he went to the plant to get his pay-
check, and explained to Harold Hibbard that he was busily engaged in making
funeral arrangements for the deceased. Hibbard gave him the paycheck, and
discharged him at the same time for not reporting to work and also failing to
previously notify Respondents by telephone. Superintendent Belcher testified that
he had nothing to do with Hamblet's discharge.
From a preponderance of the evidence and the peculiar circumstances of this
case, I find the cause alleged by Respondents for the discharge of Guy Hamblet
was frivolous, unwarranted, and a meie pretext to discourage membership in a
labor organization.
A C Starks had been employed by Respondent since April 1953, as shipping
clerk and machine operator. On several occasions Superintendent Belcher talked
to him about the organizational activities in the plant. On another occasion
Starks requested Hibbard to advance him an extra day's pay. and was told to get
it from the CIO. Superintendent Belcher testified that Starks was a good worker,
and that he had nothing to do with his discharge. On Saturday morning. January
28, 1956, Staiks called up Superintendent Belcher by telephone, reported that he
was sick and could not come to work. Belcher told him over the phone that
he was fired, and hung up the receiver. When he returned to the plant on Monday,
January 30, 1956, Belcher told him to wait and see Mr. Hibbard. Shortly there-
after Hibbard came in, handed Starks his paycheck, and told him he was dis-
charged. Respondent contends that Starks had on several occasions failed to show
up for work on Saturdays, and had at one time failed to report because he was
in jail. For such omissions he had pieviously been excused. Starks himself ad-
mitted that he was put in jail for playing cards in March 1955, but denied absence
from work at any other time except during a period of hospitalization and operation
for hernia during the latter part of 1955.
From a preponderance of the evidence and peculiar circumstances of this case,
I find the discharge of A. C. Starks was frivolous and unwarranted for cause. The
primary reason for his termination was in my opinion to discourage membership
in a labor organization.
Respondents admit that at all times prior to the election of March 27, 1956, it
recognized and consulted Edward Barnes as shop steward and spokesman for its
HIBBARD DOWEL CO. 1775
employees in regard to labor relations, and sought his approval whenever an
employee was discharged. Barnes was also at all times the recognized leader of
Respondents' employees in their organizational activities on behalf of Local 18-B,
and had been employed by Respondents as shipping clerk and machine operator since
February 1952. He also served as official observer for Local 18-B in the election
on March 27, 1956. His wife (Josie Cotton) had also been employed in Respond-
ents' plant since March 1953, to sort and classify dowels in the manufacturing proc-
ess. Shortly before noon on March 28, 1956, Barnes observed Superintendent
Belcher reprimand Josie Cotton at her place of work, and then go into the office of
Hibbard and Stein. Thereupon, both Harold Hibbard and Ben R. Stein came into
the shop and escorted Josie Cotton to the office, stopping enroute at the toolroom
for a discussion with Superintendent Belcher. Barnes and other employees stopped
work and assembled around the toohoom door. From the testimony of Superin-
tendent Belcher it appears that Barnes told him that he better be careful or some-
thing would happen to him, or something like that. Barnes then followed his wife
into the office; whereupon, Ben R. Stein told Barnes it was none of his business, and
ordered him to go back to his work, or be fired himself. He also accused Barnes,
of threatening Superintendent Belcher, and said, "Nobody tells Howard what to do
or talks back to Howard around here." Barnes told Stein that he and the other
employees were tired of being pushed around and called names by the foreman,
and were going to do something about it. Barnes went back to his work, and Josie
Cotton was discharged. That afternoon Barnes was called back to the office into
the presence of two uniformed police officers, who questioned him about threatening
his foreman and other people in the shop, all of which Barnes denied. The police
officers then inquired of Ben R. Stein what to do with Barnes. Stein told them that
Barnes had been there a long time, was a good worker, and that he wanted him to
work. Thereupon, the policemen told Barnes to go back to work, but threatened to
lock him up if called back by the Respondents.
Next morning, March 29, 1956, when Barnes entered the plant to work, Harold
Hibbard was sitting in a police car with two police officers outside the plant office
The police then drove away, and Hibbard entered his office. That afternoon two
police officers again appeared in the plant, and Edward Barnes was again called into
the office. Upon arrival in the office, Ben R. Stein said to the police officers, "Get
down to business." After again questioning this employee about threatening Super-
intendent Belcher, which he denied, Police Captain Barnes inquired of Stein and
Hibbard, "Do you want this man fired?" Stein replied in substance that he didn't
want a man like that threatening the people and having his men afraid to work.
Thereupon, Edward Barnes was handed his paycheck already prepared, and dis-
charged. Upon observing the departure of Edward Barnes, all employees in the
shop quit work and stood at their machines. Accompanied by the police, Hibbard,
Stein, and Belcher then entered the shop, and told employees to either go back to
work or be discharged. The employees then resumed their work. Thereafter, at
4:15 p. in. Respondents closed down operations for the day, and Harold Hibbard
made a conciliatory speech.
From a preponderance of the evidence and the peculiar circumstances of this case,
I find the discharge of Edward Barnes discriminatory because of his activities on
behalf of Local 18-B, and to discourage membership in that organization.
E. Resumption of negotiations with Local 18-B
Upon receipt of the Board certification of Local 18-B, Business Agent Sam P.
Sloan on April 6, 1956, sent by registered mail to Respondents a letter requesting
renewal of their negotiations, as follows:
DEAR MR. STEIN: The Union received the official certification of representa-
tion from Mr. Ross Madden, Regional Director of the National Labor Relations
Board This document certifies the Furniture and Bedding Workers Union,
Local 18-B, United Furniture Workers of America, AFL CIO as the bargaining
agent through NLRB Case # 13RC4544.
This effectively silences the threat made some time ago by Local 705 to place
a picket line around the Company premises in the event that you concluded the
negotiations previously begun with our Local, a threat made not withstanding
that it was well known that Local 705 did not represent the employees for pur-
pose of collective bargaining. Since this was one of the points of objection by
the Company previously, negotiations can proceed between the Union and
Company covering wages, hours and working conditions for Hibbard Dowel
employees in the certified bargaining unit.
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Your contacting me on the above for the purpose of setting a time and place
for a meeting on receipt of this letter, will be appreciated.
Looking forward to your call or letter, I remain
Very truly yours,
(Signed ) SAM P. SLOAN,
Union Representative.
Upon receipt of the foregoing letter, the Respondents referred the matter to the
firm of Wexler and Wexler, attorneys-at-law, of Chicago, Illinois. Attorney Sam
Wexler notified representatives of Local 18-B to meet Respondents at his office on
April 20, 1956. Union representatives Sam P. Sloan and Joseph Angilello appeared
at the appointed time and place, but neither of the partners, Harold Hibbard or Ben
R. Stein, was present. In their absence the representatives of Local 18-B submitted
to Sam Wexler, attorney, two copies of the identical contract previously prepared
for execution on December 1, 1955. Respondents' attorney agreed to look it over
and arrange for another meeting, but disclaimed authority to consummate any agree-
ment without the concurrence of Ben R. Stein. Thereafter on April 27, 1956, Inter-
national Representative Joseph Angilello sent by registered mail to Samuel Wexler,
attorney-at-law, a letter, as follows:
DEAR SIR: During our conference on Friday, April 20th, the undersigned
Local Union presented a proposed collective bargaining agreement in writing
and an oral request that those employees terminated during the pendency of the
recent proceeding before the National Labor Relations Board in case number
13-RC-4544 be reinstated with back pay. The agreement and request were
presented to you as the authorized collective bargaining agent of the employer.
As the Union understood the conversation, you stated that you personally
could see no objection to the agreement presented; that, however, your authority
was limited in that you could not conclude an agreement or honor the request
without the concurrence of the employer. You agreed to call the representa-
tives of the Union on Monday.
On Tuesday the Union called you. As the Union understands the Tuesday
conversation, you advised that the employer approved the agreement presented,
save that the employer did not approve and would not agree to the retroactive
features thereof, and that the employer would not agree to reinstate any of the
terminated employees as set forth above.
The Union, therefore, concludes that there are two collective bargaining
issues open for further bargaining.
Accordingly, the Union requests that another meeting be arranged at the
early convenience of the employer to discuss the two remaining bargaining
issues further. In order to expedite bargaining, the Union also requests that
you try to have present at that conference a representative of the employer
authorized to make an agreement (if agreement can be reached). The
Union will have at its side of the bargaining table a representative committee
of the employees of the employer who will be authorized to make an agreement
(if agreement can be reached).
Thank you for your courtesy.
Very truly yours,
JOSEPH ANGILELLO,
Int'l Representative.
On May 2, 1956, representatives of Local 18-B, accompanied by their attorney
(David B. Rothstein) again went to the office of Attorney Sam Wexler, and were
told that the meeting with Hibbard and Stein had been set for May 4, 1956, not for
May 2, 1956. Attorney Sam Wexler stated that Respondents would not agree to
any reinstatement or back pay for discharged employees. Thereafter the meeting
set for May 4, 1956, was postponed by reason of the absence of Ben R. Stein.
At a meeting on May 21, 1956, in the office of Attorney Sam Wexler, all parties
were present including Ben R. Stein and Harold Hibbard for the Respondent
Company. Attorney Sam Wexler requested that the written proposals be reviewed
article by article, and in that manner a discussion of each individual paragraph ensued
for approximately 30 minutes until Attorney Wexler announced that he had other
business requiring his attention and adjourned the meeting. Attorney David B.
Rothstein for Local 18-B proposed that more time be devoted to the meetings;
whereupon, Attorney Sam Wexler announced that he could devote only 1 hour to
meetings and declined to meet at night or on Saturdays and Sundays. Another
meeting was scheduled for 2.00 p. in. on May 24, 1956.
HIBBARD DOWEL CO. 1777
At the meeting on May 24, 1956, Ben R . Stein did not appear until called by his
attorney (Sam Wexler) and then came in about 2:30 p. in. while the discussion
was proceeding, thereby, making it necessary for his attorney to review with him
the progress made. Stein then announced that he would not agree to the checkoff
clause. When Business Agent Sam P. Sloan protested that all proposals had been
agreed upon back in December 1955, Stein asserted in substance that he was friendly
with the union representatives at that time, but was now hostile because of certain
accusations made against him. The meeting ended in controversy, after which
apologies were exchanged, and the parties agreed to meet for another conference on
May 31, 1956. Thereafter, on May 26, 1956, Attorney Sam Wexler went to the
hospital for an emergency operation, the meeting scheduled for May 31, 1956, was
canceled by Respondents, and further discussions of the contract were temporarily
disrupted.
On June 6, 1956, David B. Rothstein, attorney for Local 18-B, posted a letter
to Samuel Wexler, attorney, as follows:
DEAR MR. WEXLER: We trust that you have by now recovered from your
operation.
We should like to resume collective bargaining sessions at your early
convenience in the above. In the event that your health will not permit you to
participate, may we again suggest that someone other than yourself be substituted
until you recover.
Thank you for your courtesies.
Sincerely yours,
MEYERS AND ROTHSTEIN,
(Signed) DAVID B. ROTHSTEIN.
Upon receipt of this letter, Sam Wexler agreed by telephone with Rothstein that
meetings would be resumed about the middle of July 1956.
The next meeting was held on July 24, 1956, at the office of Sam Wexler, with
all parties present, and a further detailed discussion of the contract continued. Upon
adjournment the parties agreed to meet again on July 31, 1956. At the next meeting
on July 31, 1956, the principal topic of discussion was wage rates, and representatives
of Local 18-B requested Respondents to furnish a list of its employees and the
wage rates of each of them in effect at the plant. This Respondents agreed to furnish
by the following Monday, and to meet again on August 7, 1956. At that time,
the parties had reached a tentative oral agreement on all other terms and conditions
of the proposed contract. Respondents thereafter failed to furnish the prevailing
wage rates, although repeatedly requested to do so during the month of August 1956.
On August 7, 1956, representatives of Local 18-B went to the office of Attorney
Sam Wexler, who told them that Harold Hibbard had gone to California, and
postponed the meeting, but agreed to notify them upon Hibbard's return as to when
negotiations could be resumed. Thereafter, on August 27, 1956, General Counsel
for the Board filed his complaint herein, and no further negotiations. between the
parties occurred prior to the hearing in October and November 1956.
At the hearing on or about November 1, 1956, Ben R. Stein, Harold Hibbard, and
Sam Wexler testified under oath and seriously contended throughout that they
had met at reasonable times and conferred in good faith with the representatives
of Local 18-B with respect to wages, hours, and other terms and conditions of
employment, and were ready and willing to continue such negotiations and execute
a written contract incorporating any agreement reached-that the negotiations were
disrupted through no fault of their own, and were discontinued by the filing of
the complaint and failure of the Charging Union to request or pursue further
meetings. Ben R. Stein testified that he instructed his office secretary to prepare
and forward the wage data requested by the Union, and thought she had done so.
In view of the foregoing contentions of Respondents, the Trial Examiner, to
encourage a voluntary settlement between the parties, at or near the close of the
hearing suggested that Respondents furnish such wage data to the Union immediately,
which Ben R. Stein (partner) agreed to do, and thereby facilitate agreement between
the parties and execution of a contract pending the Trial Examiner's intermediate
report in this case. Thereupon, the hearing was closed at noon on November 2, 1956.
F. Reopened hearing
After the original hearing was closed, Joseph Angilello, representative of Local
18-B, by a series of letters and telephone calls to Wexler & Wexler, attorneys for
Respondents, sought in vain to obtain further negotiations with Respondents, and
finally by letter of December 10, 1956, set a date for meeting on December 18, 1956,
476321-58-vol. 119-113
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the office of Attorney Sam Wexler. Respondents' attorney then notified Angilello
that his clients could not determine what course of conduct to follow until atter
the Christmas holidays, and no meeting was held on December 18, 1956. Not having
received the wage data promised by Respondents, Local 18-B filed a third amended
charge on December 19, 1956; whereupon, the General Counsel and the Union
jointly filed with the Trial Examiner a motion to amend the complaint and reopen
the hearing. The motion was granted. In the meantime, counsel for Respondents
on December 27, 1956, mailed to Local 18-B the wage data previously promised,
and expressed surprise that it was still desired. Thereafter, on January 3, 1957,
Joseph Angilello sent a telegram to Wexler & Wexler, attorneys, requesting a
meeting with Respondents. Thereupon, Wexler & Wexler by letter dated January
10, 1957, notified Local 18-B to attend a meeting in their office on January 17, 1957.
That meeting was attended by Harold Hibbard for Respondents, but Ben R. Stein
was not present. The main topics of discussion at this meeting were (1) a checkoff
system, (2) an employee insurance plan, and (3) wage rates. Harold Hibbard
said that they were going to look at the books and see what Respondents could
afford to give; and thereupon, another meeting was set for January 22, 1957. At
the next meeting in Wexler's office on January 22, 1957, all parties and their
attorneys were present, including both Harold Hibbard and Ben R. Stein. Harold
Hibbard announced that Respondents had already put into effect an incentive plan
for employees without consulting the certified bargaining representative. Ben R.
Stein proposed that Respondents would agree to the checkoff clause, insurance
plan, and a minimum wage of $1.05 per hour with no overall wage increases, pro-
vided Local 18-B would sign a 10-year contract without a wage reopener clause.
Representatives of the Union remonstrated that a 10-year contract was unheard
of in the industry-that as a rule, the maximum term was 2 or 3 years, but they
were not sure whether 5-year contracts were approved for automobile workers.
Thereupon, they told Respondents and their attorney to submit proposals in writing.
Thereafter, Local 18-B received from Wexler & Wexler, attorneys, a letter dated
January 23, 1957, as follows:
GENTLEMEN: As per your suggestion, after the last conference held at our
office on January 22nd, 1957, we are herewith submitting in writing the counter
proposal of our clients, relative to the various provisions of the proposed
agreement discussed at said meeting.
1. Our clients will agree to a check-off system.
2. Our clients will agree to an Insurance Plan of 4% providing,
however, that the base pay shall be the sum of $1.05 per hour, minimum.
3. That said agreement shall be for a period of ten years.
If the above proposal meets with your approval, then we can arrange for
another conference for the discussion of the other open items in the contract
that had been discussed.
Yours very truly,
WEXLER & WEXLER,
By (Signed) SAMUEL WEXLER.
At the next meeting in Wexler's office on January 29, 1957, Respondents con-
tinued to insist on a 10-year contract , and the subject of a merit increase system
was discussed. ' David B. Rothstein, attorney for Local 18-B, agreed to prepare
and submit in writing to Respondents prior to the reopened hearing on February
5, 1957, a proposed merit increase clause for the contract, but for some reason
failed to do so. Credible testimony and documentary evidence justifying the fore-
going findings of fact were introduced before the Trial Examiner in Chicago on
February 5, 1957; whereupon, a recess was taken to Monday, February 11, 1957,
to provide an opportunity for completion of unfinished negotiations between the
parties. Attorney Rothstein was requested by the Trial Examiner to submit to
Respondents his written proposal of a merit increase clause not later than noon on
Wednesday, February 6, 1957, thereby providing additional opportunities for the
parties to reach agreement and execute a contract prior to the final session of the
reopened hearing on February 11, 1957.
On February 6, 1957, Attorney Rothstein submitted to Wexler & Wexler a
proposed merit increase clause, as follows:
DEAR MR. WEXLER: The following is a proposed merit increase clause:
The record of each employee shall be reviewed every twelve weeks with
a view to wage adjustment in accordance with his ability and attendance.
HIBBARD DOWEL CO. 1779
Such periodic review of an employee's wage shall be had between the
management and a representative of the union. Any such review that is
not satisfactorily concluded shall be arbitrated in accordance with the
provisions of the arbitration clause of the collective bargaining agree-
ment. Any increases granted as a result of such review or by an arbitrator
shall be retroactive to the date when such review is sought. Such merit
increases shall be not less than five cents per hour.
As you will note from the length of the clause, I could have written it in
longhand had you been available for a meeting on February 5, in accordance
with your previous commitment.
Very truly yours,
MEYERS AND RoTHSTEIN,
( Signed ) DAVID B. RoTHSTEiN.
At meeting in Wexler's office on February 8, 1957, in which Ben R . Stein par-
ticipated , the parties apparently reached agreement on all terms and conditions of
the proposed written contract, except as to length of time it should remain in effect
without either party having the right to reopen for further negotiation of wage rates.
The Respondents insisted on a 5-year contract with a no-strike clause for a like
period. The attorney for Local 18-B testified that the Union proposed to accept
Respondents' offer of a 5-year contract provided it include a reopener clause after
2 years with the right to strike in the event of nonagreement on wages. The meeting
adjourned with an agreement to meet again at 9:30 a. m. around the coffee table in
Briggs Restaurant, corner of Adams and Wells Streets, enroute to the final session
of the reopened hearing at 10 a. in. on February 11, 1957. It is unclear from
the record what transpired at the meeting in Briggs Restaurant, but shortly there-
after, in the hearing room during the cross-examination of Joseph Angilello, At-
torney Sam Wexler asserted, "Now, we offered you the 5-year contract and the
3-year reopening clause. Do you remember this morning when we spoke?" Angilello
answered, "Right."
Thereupon, in an off-the-record discussion between the attorneys and parties,
Local 18-B in the presence of the Trial Examiner and counsel for the General
Counsel , and in the presence of Harold Hibbard and Ben R . Stein , agreed to accept
the aforesaid proposal of Attorney Sam Wexler for a 5-year contract with a 3-year
reopening clause. Upon assurances from all present that the parties had reached
agreement and were ready to sign a written contract , the Trial Examiner at ap-
proximately 11 a. in., ordered a recess until 2:30 p. m. to facilitate the drafting,
submission , and execution of a written contract incorporating the agreements
reached between the parties and their attorneys.
When the hearing reconvened at 2:30 p . m. on February 11, 1957, all parties and
counsel, except Sam Wexler, were present. Attorney Sam Wexler for no reason
apparent to the Trial Examiner, failed to appear. Associate Counsel, Harold Wexler,
continued to appear for Respondents , and exhibited the written contract which had
been prepared by counsel during the recess. Respondents Harold Hibbard and
Ben R . Stein were present refusing to sign the written contract , which had been
prepared in accordance with agreements voluntarily entered into by all parties and
their attorneys in the hearing room approximately 31h hours before. Representing
the Respondents , Attorney Harold Wexler made a statement on the record at pages
875-876 of the transcript, as follows: 1
Mr. H. WEXLER: Well, for the purpose of the record, Mr. Trial Examiner,
this contract was delivered to us at 2:15, while we were on the way here.
We examined this contract here in the short period of time. Mr. Sam
Wexler, who has been conducting these negotiations, has never seen this contract
and we have gone over this contract with Mr. Stein here at the present time.
Our clients, Mr. Stein and Mr. Hibbard, when we explained to them what
was discussed this morning, after the recess , stated to us that that was not our
understanding; that they are insisting that a five year contract be entered into
with a "no strike" provision for the five year period; that the question involved
here that there be no strike for the first three years, we are not in dispute.
The question involved as to renegotiating after three years, we are willing
to permit that to go into the contract, and in the event that we do not arrive
at some understanding , in the event the contract is reopened for renegotiation,
1 Statements on the record by counsel for the General Counsel and by David B Roth-
stein, attorney for Local 18-B, appear immediately thereafter . Thereupon , the hearing
was finally closed.
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the same be submitted to arbitration and that during that period of time
there be a "no strike" provision in the contract , and that we will abide by the
rules of the, the ruling of the arbitrator, in the event we cannot agree with
the union as to any of those terms , and we are willing to open our books and
records at that time for the purpose of arriving at any decision relative to
reopening the contract, either for the union's purposes or for the use of the
arbitrator that may be selected, in the event the parties concerned cannot reach
an agreement. That is the thought on the matter that our clients have.
Concluding Findings
From a preponderance of the evidence summarized above and the entire record
in the case, I am convinced and find that Respondents in September 1955, volun-
tarily recognized Local 18-B, Furniture and Bedding Workers Union, United Furni-
ture Workers of America, AFL-CIO, as the exclusive bargaining representative of
their employees, and thereafter during the months of September, October, and
November 1955, by negotiations with the duly authorized representatives of said
Union reached substantial agreements upon the terms and conditions of a 2-year
written contract, which was drafted and submitted to Respondents for inspection
and approval on November 25, 1955; that for their own convenience Respondents
deferred execution of the contract until December 1, 1955, for the alleged purposes
of submitting the written document to their attorney and other interested parties;
that on or about December 1, 1955, without expressing any disagreement with the
terms and conditions of the proposed written agreement, Respondents raised a
fictitious doubt whether the negotiating union still represented a majority of the
employees in the plant merely because representatives of Local 705, Production and
Miscellaneous Workers Union of Chicago and Vicinity, made an unheralded entry
into the plant and over the protests of both Respondents and their employees initiated
an abortive organizational campaign . Thereupon , Respondents abruptly broke off
all negotiations with the representatives of the bargaining agent, Local 18-B, and
refused to sign the collective-bargaining agreement already reached and reduced to
writing in the document previously submitted to them.
Whether or not the Respondents originally instigated the organizational activities
of Local 705 and allowed its representatives access to the plant premises in an effort
to destroy the majority of Local 18-B, i find that they interfered with the formation
and administration of both labor organizations by thereafter soliciting their em-
ployees to disaffiliate from Local 18-B and to affiliate with and support Local 705
pending the election held on March 27, 1956. The partners, Harold Hibbard, Ben
R. Stein, and Superintendent Howard L. Belcher offered to Edward Barnes (shop
steward) the inducement of training for and eventual promotion to the position of
foreman if he would repudiate his affiliation with Local 18-B. The partners also
called employees, Annette Coleman, Evelyn Green, Nettie Ballard, Johnny King,
and Edward Barnes into their office and there assisted representatives of Local 705 in
soliciting them to endorse a contract between that organization and the Respondent
Company. With the apparent approval and ratification of Respondents, their
confidential office employee, Rose Grossman, also called individual employees into
the plant office and solicited their support and votes for Local 705 in the election.
Having already found, supra, that Respondents discriminatorily discharged certain
named employees to discourage membership in a labor organization, I am convinced
that such discharges were an integral part of Respondents' plan to destroy the
majority status of Local 18-B, and incidentally contributed unlawful assistance and
support to Local 705. These discharges raised new issues in addition to contract
negotiations with respect to reinstatement with back pay of employees for which
the Union made a demand upon Respondents' Attorney, Sam Wexler, at the first
meeting after certification on April 20, 1956. Meanwhile, by the "Fair Labor
Standards Amendments of 1955," Public Law 381-84th Congress, minimum wages
in industry were increased from 75 cents to $1 per hour, effective March 1, 1956;
thereby making it desirable for the negotiating parties to reconsider wage rates paid
by Respondents in their Chicago plant.
After the certification of Local 18-B on April 4, 1956, the Respondents adopted
a new technique of negotiating with representatives of Local 18-B only through their
attorney, Sam Wexler, and all meetings were arranged by him to be held in his office,
but this attorney admittedly had no authority to enter into any binding agreement on
behalf of the Respondents. At meetings with the union representatives, called by
Sam Wexler, attorney, the Respondent partners infrequently appeared. Their first
appearance was at a meeting on May 21, 1956, which was abruptly adjourned in
less than one hour by Sam Wexler, attorney, asserting that he had other business to
attend to, that he would not devote more than 1 hour of his time to such meetings,
HIBBARD DOWEL CO. 1781
and that he would not schedule meetings at night or on weekends. At the next
meeting on May 24, 1956, Ben R. Stein (partner) did not appear until called by his
attorney, and then arrived 30 minutes later, exhibited hostility towards the union
representatives, and asserted that he would not agree to the checkoff clause con-
tained in the proposed written contract. Consequently, that meeting was adjourned
with apologies and confusion. The Respondent partners next appeared at a meeting
on July 24, 1956, and reached a tentative agreement with the union representatives
on all terms and conditions of the proposed contract, except wage rates. At the
next meeting on July 31, 1956, the Respondents appeared and at the request of the
Union agreed to furnish a statement of wage rates currently paid to all individual
employees by the following Monday. Thereafter, Sam Wexler, attorney, notified
representatives of the Union that Respondents would not determine what course to
follow until after the Christmas holidays, and did not furnish any wage data until
December 27, 1956, after the Union had filed a third amended charge and motion
to reopen the hearing before the Trial Examiner.
The Respondents admittedly effectuated in January 1957, an incentive plan for
the benefit of employees without consulting their certified and exclusive bargaining
representative. On January 22, 1957, Ben R. Stein (partner) unreasonably pro-
posed to pay a minimum wage of $1.05 without granting any overall wage increases,
provided the Union would sign a 10-year, no-strike contract without any wage
reopening provisions. Having otherwise reached substantial agreement as to the
terms and conditions of a written contract, the Respondents on February 8, 1957,
proposed to sign a 5-year, no-strike contract, but the Union insisted on a 2-year
reopening clause for wage negotiations with the right to strike in the event no agree-
ment could be reached. At the reopened hearing before the Trial Examiner in
Chicago on February 11, 1957, Attorney Sam Wexler for and on behalf of and in
the presence of the Respondents, Harold Hibbard and Ben R. Stein, reiterated an
offer to sign a contract upon terms and conditions admittedly agreed upon to be
effective for a period of 5 years and to contain a reopening clause on wages at the
end of 3 years. The Union thereupon, in the presence of counsel for the General
Counsel and the Trial Examiner accepted Respondents' offer. During a recess for
that purpose on that date, the agreements were incorporated into a written contract
and presented to Respondents for their signatures. Respondents then refused to
sign the written contract unless an unconditional no-strike clause effective for 5 years
be added thereto. I find, therefore, that on or about December 1, 1955, and at all
times thereafter, Respondents refused to bargain collectively in good faith with
Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers of
America, AFL-CIO, as the exclusive bargaining representative of their employees
in the appropriate unit, as alleged in the complaint.
In addition to the aforesaid conduct whereby Respondents unlawfully assisted and
supported Local 705 in efforts to destroy the majority status of Local 18-B, I find
also that Respondents interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed in Section 7 of the Act on about January 11,
1956, by threatening to close down their plant and automatically discharge all
employees if they engaged in strike activities-thereafter solicited individual
employees to abandon their affiliation with Local 18-B-and promised to Edward
Barnes the benefits of training and promotion to foreman if he would do likewise.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondents, Harold Hibbard and Ben R. Stein,
individually and as a partnership, d/b/a Hibbard Dowel Co., set forth in section III,
above, occurring in connection with the operations described in section 11, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents engaged in and are engaging in conduct and
activities ( 1) interfering with, restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act; (2) unlawfully contributing
assistance and support to a rival labor organization in efforts to destroy the majority
status of the duly authorized , recognized , and certified exclusive bargaining repre-
sentative of their employees in the appropriate unit; ( 3) discriminating in regard to
the hire and tenure of employment of their employees to discourage membership in
a labor organization ; and (4 ) refusing to bargain collectively in good faith with
the duly authorized , recognized , and certified exclusive representative of their
employees with respect to wages, hours, and other terms and conditions of employ-
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went, the negotiation of agreements and questions arising thereunder, and the execu-
tion of a written contract incorporating agreements reached, I shall recommend that
they cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. By reason of the recurring and continuing nature
of the unfair labor practices engaged in by the Respondents, and their apparent
disposition to persist in such unlawful conduct, I shall also recommend that
Respondents cease and desist from in any manner infringing upon the rights of
employees guarateed in Section 7 of the Act.
Finding that Respondents in the presence of counsel for the General Counsel and
the Trial Examiner on February 11, 1957, proposed and Local 18-B accepted an
offer to enter into a written contract for a term of 5 years with the privilege of
reopening as to wages at the end of 3 years, incorporating therein agreement reached
as to all other terms and conditions; and, whereas, upon preparation and presenta-
tion of the written document approximately 3i hours later, the Respondents refused
to sign only upon condition that a 5-year, no-strike clause and undefined provisions
as to arbitration, not previously mentioned, be added to the contract; I shall, there-
fore, recommend that Respondents be ordered, upon request of the Union, to sign
the aforesaid written contract containing the agreement reached without regard to
the afterthought alternative proposals of a 5-year, no-strike clause and arbitration,
and deliver original signed copies thereof to the Union.2
Upon the basis of the foregoing findings of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers
of America, AFL-CIO; and Local 705, Production and Miscellaneous Workers
Union of Chicago and Vicinity, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondents at their plant
in Chicago, Illinois, excluding office clerical employees, 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 Act.
3. Local 18-B, Furniture and Bedding Workers Union, United Furniture Workers
of America, AFL-CIO, has been at all times since September 1955, the exclusive
representative of all employees in aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act; and was on
April 4, 1956, certified by the Board as such agent.
4. By assisting, supporting, and otherwise interfering with the formation and
administration of a rival labor organization in efforts to destroy the majority status
of Local 18-B as the recognized bargaining representative of employees in the
aforesaid appropriate unit, the Respondents engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
5. By discriminating in regard to the hire and tenure of employment of their
employees, Matt Lewis, James Lester, Guy Hamblet, A. C. Starks, and Edward
Barnes, the Respondents engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By refusing on and after December 1, 1955, to bargain in good faith with
the above-named Union as the exclusive representative of employees in the ap-
propriate unit, and by refusing upon request to execute a written contract in-
corporating agreements reached with said Union, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.
7. Derivatively by the aforesaid unfair labor practices, and independently by
threatening to close down the plant and automatically discharge all employees if
they engaged in strike activities by soliciting employees to abandon their affiliation
with Local 18-B, and by promising to one employee the benefits of training and
promotion if he would cease his organizational activities, the Respondents interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
2 New England Die Casting Co., 116 NLRB 1; H. J. Heinz Co. v. N. L. R . B., 811 U. S.
514; N. L. R. B. v. R. D. Nesen, 211 F. 2d 559 (C. A. 9), cert. denied 348 U. S. 820.