Imperial Machine Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1958

121 N.L.R.B. 621 (N.L.R.B. 1958)

IMPERIAL MACHINE CORP 621
employees, salesmen, professional employees, guards, and all super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication ]
Mi nmi JEuKiNs took no part in the consideration of the above
Decision and Direction of Election
Imperial Machine Corp. and United Steelworkers of America,
AFL-CIO. Case No 1-CA-0303 August 25, 1958
DECISION AND ORDER
On December 30, 1957, Trial Examiner C W Whittemore 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 and a supporting brief
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 Jenkins]
The Board has reviewed the rulings oof the Trial Examiner made
at the hearing and finds that no prejudicial error was committed 1
The rulings are hereby affirmed The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the additions and modifications
indicated below
We agree with the Trial Examiner that the Respondent, in violation
of Section 8 (a) (5) and (1) of the Act, refused to bargain in good
faith with the Union as the exclusive representative of the Respond-
ent's employees in an,appropriate unit 2
The Respondent contends that the bona fides of its collective bar-
gaining cannot be tested because the Umon, itself, did not bargain in
good faith The record, however, discloses that the Union did bargain
in good faith Accordingly, we find no merit in the Respondent's
contention
i The Respondent excepts to the Trial Examiner 's refusal to view its premises during the
course of the hearing We find that the Trial Examiner properly exercised his discretion
in this matter and therefore find no merit in the Respondent 's exceptions
2 Although the evidence indicates that the reduction in hours was necessitated by the
resignation of the Respondent's s$illed setup men, we And that the Respondent , neverthe
less, violated Section 8 ( a) (5) and, independently , Section 8 ( a) (1) by failing to con-
sult and discuss this matter with the Union , the employees ' bargaining representative
121 NLRB No 75
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Imperial Machine
Corp., Worcester, Massachusetts, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization of its employees, by dis-
charging or laying off its employees or in any other manner dis-
criminating against them in regard to their hire or tenure of employ-
ment or any term or condition of employment, except tQ the extent
permitted by Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their union membership,
views, or activities in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1) of the Act; threatening
employees with loss of employment or a plant shutdown or other
reprisals for the purpose of impeding the self-organizational efforts
of its employees; transferring employees to other jobs in reprisal for
their union membership or activity; unilaterally reducing working
hours and granting wage increases without consulting and discussing
the matter with the employees' bargaining representative; and sug-
gesting to employees that they withdraw from their union and form
their own organization.
(c) Refusing to bargain collectively with United Steelworkers
of America, AFL-CIO, as the exclusive representative of all produc-
tion, maintenance, and shipping room employees employed at its
plant, excluding clerical employees, professional employees, guards,
and supervisors as defined in the Act with respect to wages, rates of
pay, hours of employment, and other conditions of employment.
(d) In any other manner interfering with, restraining, or coerc-
ing employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Steelworkers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid and protection, 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) Offer the following named employees immediate and full
reinstatement to their former or substantially equivalent positions,
IMPERIAL MACHINE CORP. 623
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered
as a result of the discrimination, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy" :
Robert Fafard Kenneth De Jordis
Francis Cormier Kenneth Gabriel
Russell Gunnard Kenneth Robbins
Henry Schmeusser Paul Pepin
(b) Upon request, bargain collectively with United Steelworkers
of America, AFI.=CIO, as the exclusive representative of all em-
ployees in the above-described unit with respect to wages, rates of
pay, hours of employment, and other conditions of employment and,
if an' understanding is reached, embody, such understanding in a
signed agreement.
(c) 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 the amounts of back pay
due and the rights of employment under the terms of this order.
(d) Post at its plant at Worcester, Massachusetts, copies of the
notice attached hereto marked' "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
a 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 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, notice is hereby given that :
WE WILL NOT discourage membership in United Steelworkers
of America, AFL-CIO, or in any other labor organization of our
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, by discharging or laying off any employees or in any
other manner discriminating against them in regard to their hire
or tenure of employment or any term or condition of employment,
except to the extentppermitted by Section, 8 (a) • (3) of the Act.,
WE WILL NOT interrogate our employees concerning their union
membership, views, or activities in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act; threaten our employees with loss of employment or a
plant shutdown or other reprisals for the purpose of impeding the
self-organizational efforts of our employees; transfer our em-
ployees to other jobs in reprisal for their union membership or
activity; unilaterally reduce working hours and grant wage
increases without consulting and'discussing,the matter with our
employees' bargaining representative; and suggest to our em-
ployees that they withdraw from their union and form their own
organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Steel-
workers of America, AFL-CIO, or any other labor organization,
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 and protection, 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 author-
ized in Section 8 (a) (3) of the Act.
WE WILL, upon request, bargain collectively with the United
Steelworkers of America, AFL-CIO, as the exclusive representa-
tive of all employees in the unit described herein with respect to
wages , rates of pay, hours of employment, or other conditions of
employment and, if an understanding is reached, we will embody
such understanding in a signed agreement. The bargaining unit
is :
All production, maintenance, and shipping room employees
employed at our plant, excluding clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
WE WILL offer the following named employees immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
IMPERIAL MACHINE CORP. 625
privileges, and make them whole for any loss of pay they may
have suffered as a result of the discrimination :
Robert Fafard Kenneth De Jordis
Francis Cormier Kenneth Gabriel
Russell Gunnard Kenneth Robbins
Henry Schmeusser Paul Pepin
All our employees are free to become, remain, or to refrain from
becoming or remaining members of United Steelworkers of America,
AFL-CIO, or any other labor organization, except to the extent that
this right may be affected by an agreement authorized by Section 8
(a) (3) of the Act.
IMPERIAL MACHINE CORP.,
Employer.
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and an answer having been filed by the above-named Respondent,
a hearing involving allegations of unfair labor practices in violation of Section
8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act, was held in Worcester, Massachusetts, on November 25,
26, and 27, 1957, before the duly designated Trial Examiner.
As to the unfair labor practices, in substance the complaint alleges and the answer
denies that the Respondent: (1) at various times beginning in February 1957, through
its agents interrogated employees regarding their membership in, and adherence to
the Charging Union; prior to a Board-conducted election in March threatened to
close the plant if the Union won, and after the election threatened similar action
rather than deal with the Union; in April and May granted wage increases without
consulting with the Union in order to discourage continued adherence to it; and
in April or May suggested to its employees that they form another union; (2) at all
times since March 26, 1957, has refused to bargain collectively with the Union,
although since March 13, 1957, that organization has been the exclusive bargaining
agent of all the Respondent's employees in an appropriate unit; (3) on March 14
discriminatorily transferred Employee Kenneth Robbins to less desirable work, and
on May 9 discriminatorily laid off eight named employees because they had joined
and assisted the Union; and by the foregoing conduct has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. General Counsel and counsel for the Respondent
argued orally. A brief has been received from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
48792 6-59-vol . 121-41
626' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Imperial Machine Corp. is a Massachusetts corporation, maintaining its principal
office and place of business in Worcester, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of screw machine products.
The Respondent annually produces and sells goods and services valued at $100,000
to employers inside Massachusetts who themselves annually produce and ship directly
outside Massachusetts their own products valued at $50,000. The Respondent also
produces and ships directl) outside of Massachusetts goods valued at approximately
$30,000.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The events
Although the complaint alleges violation of three subsections of Section 8 (a) of
the Act, the acts and conduct placed in issue by the pleadings cover so short a
time and involve so few individuals that it appears appropriate to relate such relevant
facts in narrative fashion.
The Respondent's plant is a comparatively small one. During the material period
its management and supervisory force consisted of only three individuals: Augustine
Bouthiller, president; Arthur Anderson, vice president and treasurer; and Bouthiller's
son Paul, who serves as foreman. In addition to their executive duties, Anderson
and the elder Bouthiller spend a good deal of time setting up machines in the plant.
Also during the relevant period only some 10 or 12 employees were engaged in
production, maintenance,'and shipping at the plant.
Self-organization among the employees began in February 1957. Employee Ken-
neth Robbins and one other distributed union cards for signature and returned them
to Raymond E. Murray, a union field representative. Management apparently
learned of this activity. It is undisputed that Vice President Anderson interrogated
employees as to whether or not they had been approached by a union organizer or
had signed union cards. Specifically, Anderson twice interrogated Robbins in this
manner, and on the second occasion told the employee that evidently the Union was
"not kidding," since he had received a letter from the Board to the effect that a
sufficient number of employees had indicated their desire for the Union to warrant
an election, The day before the election, held on March 13, the elder Bouthiller
told Robbins, according to the latter's uncontradicted testimony, "if you think that
union gets in and I am going to work with that bunch of bastards, you are crazy."
Bouthiller similarly interrogated employee Paul Pepin, asking him in the latter
part of February if he had signed a union card, and when Pepin replied that he
had, the president told him that they could not afford to have a union in the plant.
Bouthiller further declared that unions were run by "gangsters and racketeers"
and they would have to close the plant. Bouthiller again asked Pepin if he was
"going for" the Union, on the morning of the Board election.'
On March 13 the Union won the election, 6 to 1. At the coffee break the next
morning, Bouthiller and his son approached the assembled employees and severely
berated them, in language which he, himself, admitted was "rough." His own testi-
mony is quoted: "I said you fellows must be proud [of] what you done to us yes-
terday, after what we tried to do for you. . . . I mentioned that the men did not
have a mind of their own. 'They listened to one man. They did-not use their own
intelligence, and I said what would Kenny Robbins do for you, if you are out of
job." -The testimony of employees, undisputed by Bouthiller, is to the effect and
it is found that on the same occasion he reminded two employees of money the
firm had loaned them. He also told the group that he and Anderson would rather
run the plant alone than have the Union in there? Bouthiller called Robbins a
i Bouthiller did not specifically deny thus querying Pepin, although he denied, generally,
asking the men how they were going to vote. He admitted, however, that he did ask them
how they "felt" about the Union. The finding is based upon the more credible testimony,
of Pepin.
2 Although Bouthiller denied making this statement on direct examination, on cross-
examination he said, with reference specifically to the coffee break, "I don't remember that,
no." The finding is based upon the credible testimony of the employees.
IMPERIAL MACHINE,CORP. 627
"Judas" and declared that he did not want him in , the shipping room any more,
:because he could not be trusted.
Robbins was , in fact, summarily, transferred from his regular work in the , shipping
room and assigned to production work in the plant . He was, however , reinstated to
his regular job 3 days later . Anderson was not at the plant when Robbins was
transferred . A few days later, when he returned , he also severely berated the em-
ployee, saying that he ought to be "pretty proud of himself." Anderson further told
Robbins: "we know we can 't fire you but we are going to make it so miserable for
you will only be too glad to quit ." Bouthiller threatened Robbins in the same man-
ner, telling him "we will find a way." 3
Union Representative Murray and Robbins, as employee committeeman , met with
Anderson and Bouthiller for the first time after the Union had won the election, on
March 18 . Murray told the management officials that now that the employees had
selected the Union as their bargaining agent he would like to meet with them and
discuss terms of an agreement . Anderson and Bouthiller both diverted this subject
to one of again berating Robbins, accusing him of being responsible for the Union,
and of "betraying" them . When Murray again requested that a date for negotiations
be set, Anderson insisted that they were too busy to meet at that time. Murray
agreed to call him later.
A few days later Murray telephoned to Anderson , who again said he was too busy
to meet. Murray again called , and a meeting was finally arranged for April 24.
,On that date Murray and another union representative , Sullivan , submitted a
proposed collective-bargaining agreement to Anderson and Bouthiller . Anderson
glanced hurriedly through the document ; Bouthiller did not examine it. Anderson'
declared , according to Murray's credible testimony , "Why, we could not sign this.
We would have to go out of business ." Bouthiller added that he "wasn 't going to
deal with any union ." Murray countered by suggesting to Bouthiller that he had
not read the contract. The president replied that he didn 't have to, he knew what
was in it, had read about the Union in the newspapers , and they "weren 't -going to
deal with any union ." Both officials declared that it was , in Anderson 's words,
"as good a time as any just to close the place." 4 The union representatives assured
management that this was only,a proposed agreement , to be used in the give and
take of discussion . The proposal was left with Anderson.
On Saturday , 'April 27, 3 days after the above meeting, management suddenly
and without notice cut down the working hours of all employees . From then on,
until the final lockout , described below, on May 9, the employees were permitted to
work only 40 hours a week, instead of the regular practice of about 52 hours a week.
A few days after Murray had left the proposed agreement with Anderson, the
latter assembled all employees , during working time, and proceeded to assail both
the contents of the document and the employees themselves , a procedure in which
both the elder and younger Bouthiller joined. The substance of the credible testi-
mony of several employees present is to the effect , and it is found, that Anderson
declared that they could not and did not intend to operate under conditions set out
in the proposals . Bouthiller said they would "sign nothing ." Robbins interrupted
Anderson to point out that "this is not a binding contract . This is a presentation for
collective bargaining ." Anderson then said, "I don 't see why you fellows don't
organize a bargaining unit of your own," and save $5 a month . He further told
them "I think we can iron out our . difficulties" "if you fellows can get rid of this
union ." Anderson then left them , telling them that he would give them until the
following Monday to think it over.5
8 The quotations are from the findings based upon Robbins ' credible testimony . Although
Anderson denied threatening to make the employee 's stay so miserable he would have to
quit, he admitted that he told him "it would be best if you looked for another job." As to
Bouthiller , on this point Robbins' testimony is uncontradicted.
4 Murray's version of this meeting , from which the quotations are drawn , was not
specifically contradicted by either Anderson or Bouthiller . The Trial Examiner does'not
credit Anderson ' s general denial that he ever said he would not sign any contract with
the Union.
5 The findings as to this meeting are based upon the credible testimony of employees
Schmeusser , Robbins, Pepin, and Gunnard Anderson 's specific denials that he suggested
forming an inside union or threatened to close the plant are not accepted as credible.
It is undisputed that he gave them until Monday to make up their mind, and that he
then gave them increases . Bouthiller 's version of this meeting was "I said a few words.
I don't remember exactly."
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson later approached employees-specifically Robbins and Pepin-and
asked them what they had decided upon. Both replied that they were going to "stick"
together. On May 7 Anderson came to Robbins, and gave him a 10-cent-an-hour
raise. The Respondent officials admit that at the same time they gave similar raises
to all the "older" employees. They further admit that this raise was given without
consultation with or notice to the Union.
Shortly after Anderson had assembled his,employees , as above described , Murray
telephoned to him requesting another meeting . Anderson refused , stating that he
had talked to the men and believed that they no longer wanted the Union. Murray
then got in touch with the conciliation service of Massachusetts. A conciliator,
Brica , of that State agency, arranged a meeting for May 9.
Despite Brica's efforts, the Respondent officials agreed to none of the Union's
proposals, nor did it offer any counterproposals. Robbins' account of the following
remarks by Anderson is undisputed: "I am a very busy man. I have been very busy
and I can't possibly sit down-keep sitting down at these different meetings and
be bargaining, and furthermore, we can't agree to any of this." Anderson's own
testimony is that he said, finally, "The hell with it. We will try to run this thing
ourselves. We are not getting anywhere."
Bouthiller left the conference, ordered the machines shut down, and the following
named eight employees were summarily laid off:
Robert Fafard
Francis Cormier
Russell Gunnard
Henry Schmeusser
Kenneth De Jordis
Kenneth Gabriel -
Kenneth Robbins
Paul Pepin
None of these individuals has been reinstated, although the plant has continued to
operate.
On June 3 the Union filed its charge in this proceeding. On June 12 it sent a
written request to the Respondent, suggesting June 18 as a possible date for a
negotiating meeting, or in the alternative that the Respondent set a date. No reply
was received. On June 17 the Union again made a request for a meeting.
Finally , on July 2 a meeting was held between the union representatives , manage-
ment officials , and Attorney Seder, retained by the Respondent.
The provisions of the Union's proposed contract were discussed in some detail.
It appears that tentative agreement on certain points seemed probable, but no final
agreement was reached on any. The meeting broke up, as Anderson admits, with
the understanding that Seder would communicate with the Union and set another
date for a meeting. No such communication has ever been received by the Union,
and no further meetings have been held.
- B. Conclusions
As to the refusal to bargain: Based upon the Board-conducted election of March
13, 1957, and the subsequent certification, as well as admissions in the answer, it is
concluded and found that at all times since March 13, 1957, the Union has been
the exclusive bargaining representative for the purposes of collective bargaining
of all the Respondent's employees in the following appropriate unit:
All production, maintenance, and shipping room employees employed at the
Respondent's plant excluding clerical employees, professional employees, guards, and
supervisors as defined in the Act.
The Trial Examiner further concludes and finds that since March 14, 1957, the
day when, as found above, the Bouthillers made it quite plain to all employees that
it would not bargain with the Union, the Respondent has refused and continues to
refuse to bargain collectively as required by the Act. Specific factors, described
above, contributing to the ultimate conclusion, are as follows: (1) Bouthiller's
scathing denunciation of all employees and particularly Robbins, on March 14, for
voting for the Union the day before, and his thinly veiled threat to close the plant
rather than deal with the Union; (2) the plainly punitive transfer of Robbins from
his regular job; (3) management's refusal to meet with union representatives between
March 18 and April 24, with Anderson's plea of being "too busy"; (4) the tacit
threat of both Anderson and Bouthiller at the meeting of April 24 to close the plant
rather than agree to anything the Union proposed; (5) management's assembling
,of employees shortly after this meeting, suggesting that they withdraw from the
Union and form their own organization; (6) Anderson's refusal to meet with union
representatives shortly thereafter with the excuse that he believed the employees
had changed their minds; (7) reducing the hours of work on and after April. '-'
IMPERIAL MACHINE CORP. 629
and giving wage increases without consulting with the Union; 6 (8) summarily lay-
ing off all employees on May 9 rather than deal further with the Union; and (9)
failing, after July 2, to set a date for meetings although, through its attorney, it had
agreed to do so.7
As to the layoffs of May 9: Anderson's own testimony, admitting that he said on
May 9, "The hell with it. We will try to run this thing ourselves. We are not get-
ting anywhere," is substantial basis for the conclusion and finding, here made, that on
that date the eight named employees were discriminatorily dismissed from their
employment in order to discourage further collective bargaining and other union
activities.
As to interference, restraint, and coercion: It is concluded and found that the
Respondent, by its refusal to bargain with the Union, by its discriminatory layoff
of employees, and by the following specific conduct, described in the subsection
above, has interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act: (1) interrogation of employees by
Anderson and Bouthiller as to their union affiliation or adherence; (2) threats by
management officials to close the plant rather than deal with the Union; (3) the
punitive transfer of Robbins to another job and threatening to cause him to quit;
(4) suggestions by management that employees withdraw allegiance to the Union
and form their own organization; and (5) reducing working hours and granting
wage increases without consulting with the Union,8 in order to discourage the
employees' support for and adherence to their legal bargaining representative.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has refused and is refusing to bargain col-
lectively with the Union as the exclusive bargaining representative of all employees in
an appropriate unit. It will therefore be recommended that the Respondent cease
and desist therefrom and, upon request, bargain collectively with the Union with
respect to wages, hours, and other terms and conditions of employment, for all
employees in the appropriate unit.
Having found that the Respondent discriminatorily and to discourage union activity
laid off eight named employees, the Trial Examiner will recommend that the Re-
spondent offer them immediate and full reinstatement 9 to their former or substan-
6 The Trial Examiner can find no merit in the Respondent's excuse for cutting the
working hours. His own records refuted Anderson's claim that reduction in hours was
necessary immediately after a setup man had resigned, during the week ending April 13.
The records show that there was no reduction until immediately after the negotiating
meeting on April 24 Nor was any credible motive established for the increase in
wages-even if such a motive were to be considered relevant. Under the circumstances,
it was incumbent upon the Respondent to consult the Union.
7 The Trial Examiner finds no merit in the Respondent's apparent claim that in so small
a plant management officials were too busy to bargain with the Union, and that the
Union's demands were so unreasonable that they could not be met. As to the first point,
the Trial Examiner is, without knowledge of any case where "being too busy" to comply
with a public law has been held to be a warrantable defense. As to the second claim,
credible testimony, much of it uncontradicted, establishes that both Murray and Robbins
repeatedly insisted that the proposals were for negotiation. It is conceded by manage-
ment that at no time did it offer counterproposals.
8 Respondent's claim in its brief that the individual increases were justifiable under
cases therein cited is without merit, in the opinion of the Trial Examiner. Credible
evidence establishes that at meetings with the union, management had adamantly de-
clared it could not afford and would not give increases. And Bouthiller's testimony is to
the effect that no individuals, except one Fafard, asked for a raise.
O There is some evidence in the record that 1 or 2 of the discharged employees has
been offered reemployment. The nature and date of any such offer, of course, will be
pertinent In the event of compliance with these recommendations.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tially equivalent positions , without loss of seniority or other rights and privileges,
and make ' them whole for any loss of pay they may have suffered by paying to each
of them a sum of money equal to that which he would have earned from May 9,
1957, to the date of the Respondent's offer of reinstatement , less his net earnings
during said period, and in a manner consistent with Board policy as set out in
F. W. Woolworth Company (90 NLRB 289). and Crossett Lumber Company
(8 NLRB 440).
It will further be recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent to
an analysis of the amount due as back pay.
Since the violations of the Act -which the Respondent committed are persuasively
related to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future it is to be anticipated from the Respondent' s conduct in the
past, the preventive purposes of the Act will be thwarted unless the recommendations
are coextensive with the threat. In order to make more effective the interdependent
guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that the Respond-
ent cease and desist from infringing in any manner upon the rights guaranteed by Sec-
tion 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record; the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of eight
employees , as found herein , thereby discouraging membership in and activity on
behalf of the above-named labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
3. All production, maintenance , and shipping room employees employed at the
Respondent 's plant excluding clerical employees , professional employees , guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. United Steelworkers of America, AFL-CIO, was on March 13, 1957, and at
all times since has been the exclusive representative within the meaning of Section 9
(a) of the Act of all employees in.the aforesaid unit for the purposes of collective
bargaining.
5. By refusing to bargain collectively with the aforesaid labor organization as the
exclusive bargaining representative of the employees in the 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.
6. By interfering with, restraining , and coercing 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Petroleum Chemicals, Inc. and United Plant Guard Workers of
America, Petitioner . Case No. 15-RC-1781. August 26, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John H. Immel, Jr., hearing
officer. The hearing officer's rulings made at the hearing are free;
from prejudicial error and are hereby affirmed.
121 NLRB No. 78.