Howard-Cooper Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1957

117 N.L.R.B. 287 (N.L.R.B. 1957)

HOWARD-COOPER CORPORATION 1 287
Store Union, AFL-CIO, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and 8 (a) (5) of the Act.
5. By dominating and interfering with the revival or formation and administra-
tion of Adco Employees Association and by contributing financial and other support
thereto and by recognizing and dealing with said Adco Employees Association, as
found above, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and 8 (a) (2) of the Act.
6. By rendering unlawful assistance and support to Local 810 and by executing
a collective-,bargaining agreement with said Local 810 on or about February 9,
1955, or August 15, 1955, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and 8 (a) (2) of the Act.
7. By interfering with, restraining, and coercing its employees as found above, in
the exercise of the rights guaranteed to them by Section 7 of the Act, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act. -
S. 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. ]
Howard-Cooper Corporation and International Union, United
Automobile, Aircraft and Agricultural Implement Workers
of America, AFL-CIO.1 Case No. 36-CA-724.. February 5, 1957
DECISION AND ORDER
On July 24, 1956, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings; conclusions, and recommendations of the
Trial Examiner, with the following *additions:
The Trial Examiner found that a majority of the Respondent's
employees in an appropriate unit had designated the Union as their
representative and that, therefore, the Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) of the Act. The
Respondent's exceptions, in the main, attack the validity of the finding
of majority designation by the Trial Examiner because of the absence
of direct proof that employee Hachenberg, whose designation is
needed to establish the Union's majority, had authorized the Union to
represent him.
I The Trial Examiner corrected the Intermediate Report to reflect the name of the Union
as it appears in the caption herein.
117 NLRB No. 40.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the 12 employees whom the parties agreed were in the appro-
priate unit, 6 testified that they had signed cards authorizing the
Union to represent them. Although the cards were not produced at
the hearing, and there was no showing that they could not have been
produced through the exercise of due diligence, it is clear that the
testimony of the employees involved is itself probative of the Union's
majority status 2 On the basis of their testimony, we find, as did the
Trial Examiner, that these six employees did in fact designate the
Union as their representative.
As to the crucial seventh employee, Richard Haclenberg, who
allegedly also sighed a card but was unable to appear as a witness at
the hearing because he was serving National Guard duty, employee
Bishop testified that, when he called at Hachenberg's home to offer
him a ride to the union meeting being held that evening, Hachenberg
did not accompany him but gave him a union-authorization card
appearing to bear Hachenberg's signature for transmittal to White-
side, the union representative, and that he, Bishop, turned the card
over to Whiteside at the meeting. Whiteside testified that among
the cards he received was one bearing Hachenberg's name. Bishop
also testified that Hachenberg arrived late at the meeting. He fur-
ther testified that, at the beginning of the January 13 workday, he
informed Hachenberg, in response to the latter's inquiry, that
Whiteside advised all who had signed cards to sign the petition posted
on January 12 in order to protect themselves. Subsequently, the
names of the six employees found above to have designated the Union
to represent them, and that of Hachenberg, were added to the peti-
tion. Like the Trial Examiner, we find, upon the basis of the fore-
going uncontroverted evidence, and the record as a whole, that
Hachenberg had also designated the Union to represent him.
We accordingly find, as did the Trial Examiner, that the Respondent
unlawfully refused to bargain with the Union.
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 Respondent, Howard-Cooper
Corporation, Portland, Oregon, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclu-
sive representative of all employees at the Respondent's Central Point,
Oregon, branch plant, in the unit found to be appropriate in the Inter-
mediate Report, with respect to rates of pay, wages, hours of work,
and other conditions of employment.
2 ldaho Egg Producers, 111 NLRB 93, 107 (IR).
HOWARD-COOPER CORPORATION 289
(b) Discouraging membership in or activities on behalf of the
'Union or any other labor organization, by seeking through threats or
the granting of or promise of benefits to induce its employees to re-
pudiate or to refrain from membership in or activities on behalf of
the Union, or any other labor organization.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self -organiza-
tion, to form and join labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, 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 the Union as the exclu-
sive representative of employees in the unit heretofore found appro-
priate, with respect to rates of pay, wages, hours of work, and other
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its place of business in Central Point, Oregon, copies
of the notice attached hereto 3 Copies of the notice, to be furnished
by the Regional Director for the Nineteenth Region, Seattle, Wash-
ington, shall, after being duly signed by Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and
maintained by it for a period of sixty (60) days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
1 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 "Pursuant to a Decision and Order," the words
"Pursuant to a Decree of the United States Couit 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 :
423 7 54-57-vol 117-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, or in any other labor organiza-
tion, by seeking through threats or the granting of or promise
of benefits to induce our employees to repudiate or to refrain
from membership in or activities on behalf of the above-named
or any other labor organization.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form, join, or assist the above-named or
any other labor organization, to bargain collectively through
representatives of their own choosing, or, to refrain from any
and 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.
WE WILL bargain collectively, upon request, with the above-
named labor organization, as the exclusive representative of all
employees in the appropriate unit, with respect to wages, rates
of pay; hours of employment and other conditions of employ-
ment, and if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate unit is :
All employees of the Central Point, Oregon, plant engaged
in servicing, repairing and maintaining tractors and heavy
machinery, including partsmen and maintenance men, but
excluding office clerical employees, salesmen, supervisors,
guards, and professional employees as defined by the Act.
All our employees are free to become and remain members of the
above-named or any other labor organization.
HOWARD-COOPER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Repiesentative ) (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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, brought under Section 10 ( b) of the National Labor Relations
Act (61 Stat . 136), herein called the Act, against Howard-Cooper Corporation , herein
called the Respondent or the Company , upon charges filed by International Union,
United Automobile, Aircraft and Agricultural Implement Workers, of America, AFL-
CIO, herein called the Union , and upon complaint and answer , was heard before
the duly designated Trial Examiner upon due notice in Medford , Oregon, on June
25, 26 , 1956. The allegations of the complaint , denied by the answer , are, in sub-
stance, that in violation of Section 8 (a) (1) and ( 5) and Section 2 (6) and (7)
HOWARD-COOPER CORPORATION 291
of the Act, the Respondent on and after January 11 , 1956, engaged in certain specified
activity amounting to a refusal to bargain with the Union , the duly designated rep-
resentative of a majority of its employees in an appropriate unit , and interference,
restraint , and coercion.
All parties were represented at the hearing, participated therein , and were afforded
full opportunity to present and meet material evidence and to engage in oral argu-
ment and to file briefs. There were oral statements by the General Counsel and
the Respondent after the taking of the evidence . No briefs were filed.
Upon consideration of the entire record in the case, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Howard-Cooper Corporation, the Respondent, is an Oregon corporation having
its principal office and place of business in Portland, Oregon, and is engaged in selling,
servicing, and repairing new and used industrial and farm machinery at its plants
located in the States of Washington and Oregon, including one at Central Point,
Oregon, where incidents alleged herein to constitute unfair labor practices occurred.
In the conduct of its business, Respondent annually purchases products valued in
excess of $10,000,000, of which approximately 75 percent is shipped in interstate
commerce to its plants from States other than those in which the said plants are
located; and annually provides services and makes sales of equipment valued in excess
of $10,000,000.
On the basis of the foregoing undisputed facts, it is found that the Respondent is
engaged in commerce within the meaning of the Act and that it will effectuate the
policies of the Act for the Board to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, is a labor organization within the meaning of the
Act and admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
The allegations of unfair labor practices herein are based on incidents occurring
in November 1955, and January 1956, at Respondent's plant in Central Point, near
Medford, Oregon. During times material to the issues, H. R. Heaton was plant
manager, and Hy Thrash, shop foreman. The latter's status as a managerial em-
ployee is clearly and firmly established in the evidence. Also involved are Frank
S. Parker, a vice president of the Respondent, who functions as general manager
of Respondent's branch operations, and Respondent's sales manager, Ralph Thomas.
Parker and Thomas have their respective offices in Portland, Oregon. Twelve em-
ployees of the Central Point plant, as constituents of an appropriate unit, are
affected by the dispute.
On or about November 7, Harry Whiteside, the Union's representative, dis-
tributed leaflets with authorization cards attached, to employees at the Central
Point plant. A union meeting was held in Medford on November 16 and was at-'
tended by some 7 of the 12 employees in the appropriate unit. The testimony is
that seven employees signed the- Union's authorization cards and these were de-
livered to Whiteside at the November 16 meeting or earlier. The employees in
attendance at this meeting requested that the Union delay notifying the Company
of its designation as bargaining representative until after the Christmas and New Year
holidays, as they did not want to risk forfeiting certain benefits that might be extended
,to them by the Company during the holidays. Whiteside honored this request and
withheld bargaining demands until January 4, 1956. On that date he addressed a
letter to the Respondent at its Central Point plant, in which he stated the Union's
claim to represent a majority of employees at this plant, and requested recognition
and negotiations for a contract. This letter, or a copy of it, was received by the
Respondent at its,Portland office on or about January 7. The letter was brought to
the attention of Respondent'g top officials and was referred to its attorney, J. P.
Stirling. Respondent did not reply.
On January 10, having received no answer to his letter requesting recognition and
bargaining rights, Whiteside filed a representation petition with the Regional Office
of the Board.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 11, Parker and Thomas , then on a tour of Respondent 's branch offices
in Oregon , were at the Central Point plant. Parker admittedly had knowledge prior
-, to this visit of the Union 's request for recognition and bargaining , but testified that
he was without knowledge at that time of the filing of the representation petition.
•I do not see that this latter is material . At the Central Point plant the employees
were summoned by Thrash to the latter's office where they met with Parker,
Thomas, Heaton, and Thrash . Parker appears to have done most of the talking at
this meeting. The gist of his testimony is that he told the employees that he under-
stood there was trouble and dissension in the plant; that he was not there to make
an antiunion talk; that there were situations where unions were necessary to avoid
exploitation of laborers ; that the Respondent had had few labor difficulties and
since its doors were always open for employee complaints he did not know why the
employees had authorized the Union to represent them . Supplementing Parker's
testimony concerning his remarks , employee Alan Bishop testified that Parker said
he had no objections to unions in their proper place but they tended to lead to hard
feelings and strikes, people out of work , and neighbors not speaking to each other,
and that he did not believe that a third party was necessary in straightening out
grievances inasmuch as the Company's doors were always open for complaints; and
employee Stanley L. Long testified that Parker said unions created hard feelings,
•guys standing outside the homes of workers to "beat up" on families , broken
windows, soup lines.
Following his introductory remarks, as set forth above , Parker invited employees
to question him concerning any grievances they might have. After some hesitation,
one employee raised the question of a "coffee break," saying that he understood this
was allowed at other branch plants. Parker replied that he saw no objection to it,
that the employees should discuss it with the branch manager and whatever he
decided would be satisfactory . Following Parker's visit the employees were granted
a coffee break of 10 minutes. Other problems were raised, such as the furnishing
and laundering of coveralls , and matters concerning health and accident insurance
and maternity benefits. It appears that no commitments were made and no action
taken relative to these matters. According to the credited testimony of employee
John G . Hennagar, he complained that an employee had to work six months before
receiving paid holidays , whereupon Parker questioned Heaton and Thrash and on
learning that this was correct , told Hennagar that he, Parker , would "take care of
that right there." Parker further informed these employees that the Respondent
had earlier decided to grant a 10-cent an hour wage increase to all employees of its
branch plants , but he did not know whether the Company could legally grant it to
employees of the Central Point plant with the Union "in the picture."
Following Parker's visit , Thrash had individual interviews with some of the em-
ployees, apparently on the theory that they were constrained in expressing their
grievances to Parker in joint assemblage . Employee John G. Hennagar testified that
Thrash said he did not think that Parker had accomplished all he was after where-
upon he, Hennagar , suggested that the employees be called in one at a time. Ac-
cording to Hennagar , in his conversation with Thrash , it was mentioned that on
some previous occasion the plant had been closed due to a strike "or some union
affair." On further questioning , Hennagar testified that there was no mention of a
strike and to the best of his recollection what was said was that the employees voted
for union representation whereupon the shop was closed down . Thrash, though
present in the hearing room , did not testify. It is found that he made the statement
attributed to him by Hennagar.1
Also on the day following Parker's visit to the Central Point plant, a petition was
prepared and posted in the plant . It bore the following text:
The undersigned employees of Howard Cooper Corp., Central Point branch
respectfully petition that no action be taken regarding union organization and
In a prehearing affidavit taken by a Board agent , Parker stated :
I didn 't tell any employee or anyone else that the Company would close its Central
Point establishment or its shop there if it went union nor did I make any statements of
that sort I heard that Hi Thrash , our shop foreman at Central Point, Oregon had
made some such statement I called him about it and he admitted that he had
discussed it with some of the men when they asked him about it I told him not to
make any such statements as he was just getting us into trouble with then
There is no evidence , however, that this communication from Parkei to Thiash was pub-
lished to the employees , or any other communication iepudiating or disavowing Thrash',
statement.
HOWARD-COOPER CORPORATION 293
representation for this shop. Said employees have met with company officials
and reached an agreement regarding working conditions and wages and do not
desire to make a union affiliation at this time.
The petition was addressed to the Regional Office of the Board and copies were sent
to Whiteside and the Company. It was signed by nine employees.
On the basis of the testimony of employees Donald Squire, who did not sign a
union authorization card, and Charles A. Brown, Jr., who was quitting his job
with the Respondent, I find that the petition resulted from conferences between
these two employees and Foreman Thrash. Brown was absent from the plant on
January 11 and on his return to his job there -the following morning he was
summoned to Thrash's office where the matter of the wage increase mentioned by
Parker was discussed. Thrash told him, as Parker told the employees the previous
day,-that the increases had been agreed upon by the Respondent but that because
of the Union it was doubted whether it could lawfully be put into effect at the
Central Point plant. Brown told Thrash, in effect, that he was quitting his job and
would like to help the employees get the wage increase. The matter of the petition
was then raised. Brown testified that he did not remember whether he or Thrash
made the suggestion. In any event, according to his testimony, they agreed that
a petition would be the proper form to use in obtaining the wage increase. Further,
according to Brown, he made a rough draft of a petition, discussed it with Squire,
and as a result of talks between himself, Squire and Thrash, it was decided to send
copies of the petition to the Board , the Company, and Whiteside. Brown had the
petition typed in Thrash's office, got the address of the Regional Office of the
Board from the office manager, and about the middle of the afternoon of January
12 posted the petition next to the time clock. Squire who substituted for Thrash
when the latter was absent from his job and who, while acting in that capacity had
certain supervisory functions, testified that he also talked to Thrash on January 12
and that between them it was generally agreed that one way to get the wage increase
was to file a petition such as the one that was actually prepared and filed. He
testified that the matter of the petition was probably a combination of Thrash's
suggestions and his own initiative.
Only two employees signed the petition on January 12, Squire and Ted C. McCoy,
neither of whom had signed union authorization cards.
When he returned from a field assignment to the plant late on the afternoon of
January 12, employee Bishop saw the petition, and that evening be got in touch
with Whiteside, and asked him what the employees signing union cards should do
with respect to the petition. Whiteside replied that he thought the petition was
for the purpose of discovering the identify of those who had authorized the Union
as their bargaining representative, and it was his advice that all these employees
sign it. (Apparently, it was only when he saw a copy of the petition in Portland
on or about January 18, that Whiteside realized its full implications.) Bishop
passed this advice on to his fellow employees who had signed authorization cards
and on the following day seven additional signatures were added to the petition.
In his meeting with Bishop, Whiteside also told the latter that the Union would
write a letter to the Company agreeing to the wage increase. Such a letter was
written, bearing the date of January 14, and the Respondent thereupon, or shortly
thereafter, effectuated the wage increase with respect to the Central Point plant
along with other branch plants, making it retroactive to January 9 The employees
had no notification that the wage increase would be granted until they received their
pay checks at the end of the following week.
On being informed that the Respondent would enter into a consent-election agree-
ment, Whiteside at first indicated assent, but after meeting with employees of the
Central Point plant on or about January 16 and learning from them details of
Parker's visit to the plant on January I 1 and certain benefits that had been granted
as a result of that visit, and upon advice of his superiors, Whiteside ultimately
declined to enter into an election agreement, and on January 23 filed a charge of
unfair labor practices against the Respondent.
The foregoing virtually undisputed facts establish the refusal to bargain. At no
time did the Respondent question the Union's majority and there is no basis for
assuming that it had a good-faith doubt of it. When Parker met with the employees
of the Central Point plant he attempted to bargain directly with them individually
and as a group but without union representation. Fully informed as he was of
the Union's claim of representation, his purpose clearly was to avoid bargaining
with the Union and to supplant collective bargaining through a chosen agent of the
employees with direct bargaining between management and employees. If the
Union was indeed the duly designated representative of the employees involved,
such action being the negation of bona fide collective bargaining, was so clearly
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of the Act that no extended comment is necessary . Not only did Parker
attempt to deal directly with the employees in derogation of the Union 's status as
bargaining representative, but he forthwith granted certain benefits, such as the
coffee break , which were calculated to have and had the reasonable effect of
inducement to renounce and forego union representation . Therefore , altogether
aside from the matter of the wage increase , the refusal to bargain was firmly
established.
In the matter of the wage increase , the Respondent might reasonably be hesitant
in putting it into effect at the Central Point plant after receiving notice from the
Union that it had been authorized to represent the employees of that plant, since
it would thereby run the risk of being accused of raising wages in order to defeat
or undermine the Union, but if it had had any real intention of recognizing the
Union it might very properly and , I think, would have informed the latter of its
previously arrived at decision on wages and sought to work out with the Union
some nonprejudicial method of announcing the wage increase to the employees and
putting it into effect . It seems fairly obvious that in going directly to the employees
and in telling them that because they had designated the Union as their bargaining
representative the wage increase might be withheld , the Respondent was using the
wage increase as a lever to obtain repudiation and elimination of the Union. That
this was its real purpose is demonstrated by Thrash 's action in participating in and
promoting the petition which was circulated following Parker's visit, for there can
be no doubt that he approved and endorsed it, if he did not actually initiate it, as
the appropriate vehicle for obtaining the wage increase.
Parker's derogatory remarks about unions as testified to by employees Bishop and
Long, and the veiled threat contained in Thrash 's statement to employee Hennagar
that once before the employees at the Central Point plant voted for a union and
"they just closed the shop down ," further disclose and underline the real purpose
behind Parker 's visit to the Central Point plant and actions resulting from that
visit.
It having been found that on and after January 11 Respondent refused to recognize
and bargain with the Union our inquiry shifts to its obligation , if any, to do so.
That obligation is clear provided the Union on January 11 had been designated bar-
gaining representative by a majority of employees in an appropriate unit. The
petition repudiating the Union , signed by a majority of employees on January 12,
clearly is not operative in absolving the Respondent of its obligation if such obliga-
tion did in fact exist on January 11, for, aside from other circumstances attending the
signing of the said petition which would render questionable its validity as an actual
repudiation of union representation , it was the direct outgrowth of Respondent's act
in bypassing the Union to deal directly with its employees and its use of a wage
increase and other benefits as a lever to obtain repudiation of the Union , and would
therefore be attributable to the Respondent 's unfair labor practices . Under such
circumstances the Union 's representative status would remain intact and Respond-
ent's obligation to bargain would be a continuing one.
B. The appropriate unit
All parties agree and it is found , as alleged in the complaint , that all employees em-
ployed by the Respondent at its Central Point , Oregon , plant, to service , repair, and
maintain tractors and heavy machinery, including partsmen and maintenance men,
but excluding office clerical employees , salesmen , supervisors , guards, and professional
employees as defined in the Act, comprise a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9 (a) of the Act.
C. The Union 's majority
The parties agree and it is found that at all times material herein there were 12
employees in the aforesaid appropriate unit . One of these , J. E. Carroll , was hospital-
ized in November when the Union first distributed authorization cards and was not at
that time nor thereafter on active duty. A new employee, Hubert Curtis, was hired
in November on his job but Curtis testified that he was told at the time of his hiring
that the job would revert to Carroll if and when the latter returned to active
duty. The General Counsel at the hearing appeared to concede that at times material
to the question of the Union 's majority Carroll had a reasonable expectancy of con-
tinued employment and raised no objection to testimony of a hearsay character tend-
ing to show that Carroll was carried on Respondent 's payroll in inactive status until
sometime in March 1956, when it became apparent that he would be unable to resume
his duties as an employee.
HOWARD-COOPER CORPORATION 295
Of the 12 employees in the appropriate unit, 6 testified that on or before the union
meeting of November 16, 1955, they signed cards authorizing the Union to represent
them. Whiteside, the Union's representative, had misplaced or lost the original cards
bearing the employees' signatures, and therefore they were not produced at the
hearing. There was no showing that they could not have been produced had there
been an exercise of reasonable diligence in the matter, but upon mature consideration
I am persuaded that this failure to produce the original cards is not fatal to proof of a
majority. The oral testimony alone of the six employees that they had designated
the Union, if believed, would be probatively sufficient to establish that the designations
were made, for it is not required that such designations be made in writing or in any
prescribed form. Action. such as participating in picket line duty, might, under some
circumstances, be sufficient to establish authorization. I do not think therefore
that we are confronted with proof of the contents of a document calling for a
strict application of the best evidence rule. Authorization forms which, according to
the credible testimony, are identical with those bearing the employees' signatures,
were received in evidence and I do not understand that any question is raised that
these were in fact the forms used to obtain authorizations. Two of the six employees
testified that when they signed the authorization cards they understood that they
were merely for the purpose of having a union meeting, but they admitted that at
the meeting of November 16 they understood that the cards had the effect of desig-
nating the Union their bargaining representative, and they did nothing then or there-
after prior to the petition of January 12 which could reasonably be construed as
revoking or modifying their assent to union representation.
A seventh employee, Richard Hachenberg, was at the time of the hearing serving
National Guard duty and was therefore not available to testify. Employee Bishop
testified that Hachenberg gave him an authorization card bearing Hachenberg's name
for transmittal to Whiteside at the union meeting on November 16, and Whiteside
testified that he received from Bishop an authorization card bearing Hachenberg's
name on that occasion. The testimony was that Hachenberg attended the meeting
near its close, having been detained from earlier attendance by National Guard duty
It was Bishop's' further credible testimony that Hachenberg signed the petition of
January 12 only after Bishop had informed him that Whiteside had advised that all
those who had authorized the Union as their bargaining representative, sign it.
The only two names affixed to the petition on January 12 were those of McCoy and
Squire who did not sign authorization cards, and all seven of the names affixed to
the petition on the following day, after Whiteside had issued his advice through Bishop,
were employees who, according to the testimony, had signed authorization cards. ,
Although entertaining doubts in the first instance because of the failure of Hachen-
berg to testify and the failure to produce the authorization card bearing his signature,
on further consideration I am persuaded to the view that these omissions were not
fatal, for on the basis of the credible testimony of Bishop and Whiteside and the
entire circumstances disclosed by the testimony, I am convinced that Hachenberg
did in fact authorize the Union to act as his bargaining representative. His action
alone in handing Bishop an authorization card bearing his name for transmittal to the
Union's representative appears to me to be entirely inconsistent with any conclusion
except that he did thereby intend to, and did in fact, designate the Union his bargaining
representative
D. Conclusions
It is found that on January 4, 19516, when the Union requested recognition and
bargaining rights, and on January 11, 1956, when the Respondent refused to recog-
nize and bargain with the Union, the Union had been designated by a majority
of employees in an appropriate unit. It accordingly is found that the Respondent
in refusing to recognize and bargain with the Union violated Section 8 (a) (1) and
(5) of the Act. Further, in offering inducements to employees as a reward for repu-
diating union representation ; in participating in and fostering the antiunion petition
of January 12, 1956; and in Foreman Thrash's veiled threat of plant closure in the
event of union authorization, the Respondent interfered with, restrained, and
coerced its employees in violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section 1, 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.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. Since November 16, 1955, the Union has been, and now is, the exclusive repre-
sentative of all Respondent's employees in the following unit appropriate for purposes
of collective bargaining within the meaning of Section 9 (a) of the Act:
All employees employed by the Respondent at its Central Point, Oregon, plant
to service, repair and maintain tractors and heavy machinery, including partsmen
and maintenance men, but excluding office clerical employees, salesmen , supervisors,
guards, and professional employees, as defined by the Act.
3. By refusing on and after January 11, 1956, to bargain collectively with the
Union as exclusive representative of employees in the above appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case , it is recommended that the Respondent, Howard-
Cooper Corporation, Portland, Oregon, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representative
of all employees in the unit above found to be appropriate, with respect to rates
of pay, wages, hours of work, and other conditions of employment.
(b) Discouraging membership in or activities on behalf of the Union or any other
labor organization , by seeking through threats or the granting of, or promise of,
benefits to induce its employees to repudiate or to refrain from membership in or
activities on behalf of the Union, or any other labor organization.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form and join labor
organizations, to•bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any
or all such activities except to the extent that such right may be affected by an agree-
ment 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 designed to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the Union as the exclusive representa-
tive of employees in the unit described above and found to be appropriate, with
respect to rates of pay, wages, hours of work, and other conditions of employment,
and, if an understanding is reached, embody such understanding in an agreement.
(b) Post at its place of business in Central Point, Oregon, copies of the notice
attached to the Decision and Order marked "Appendix." Copies of the notice, to
be furnished by the Regional Director for the Nineteenth Region, Seattle, Washing-
ton, shall, after being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it for a period of
sixty (60) days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Nineteenth Region in writing, within
twenty (20) days from the date of the service of this Intermediate Report and
Recommended Order, what steps the Respondent has taken to comply therewith.
It is further recommended that, unless within twenty (20) days from the date
of the service of this Intermediate Report and Recommended Order the Respondent
notifies said Regional Director that it will comply with the foregoing recommenda-
tions, the Board issue an order requiring the Respondent to take the aforesaid action.