J. H. Rutter-Rex Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 17, 1967

164 N.L.R.B. 5 (N.L.R.B. 1967)

J. H. RUTTER-REX MFG. CO.
J. H. Rutter-Rex Manufacturing Company,
Inc. and Drivers and Warehousemen's
Local Union No. 3027, AFL-CIO. Case
9-CA-3993.
April 17, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 18, 1967, Trial Examiner James V.
Constantine issued his Decision 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 attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in an unfair labor practice by
threatening to eject a union representative in the
presence of employees, as alleged in the complaint,
and recommended that such allegation be
dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner except to the extent modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
J. H. Rutter-Rex Manufacturing Company, Inc.,
Columbus, Ohio, its officers, agents, successors, and
assigns, shall take the action, set forth in the Trial
Examiner's Recommended Order.
i Respondent excepts to the finding of the Trial Examiner that
Manager Drake had a conversation with employee Thomas in the
latter part of July during which coercive statements were made
Drake denied making such statements at any time Thomas
testified on cross-examination that he did not remember the date,
and placed it as the last of July, or the first of August, or even the
latter part of August, as he had said on direct During his
testimony Thomas verified his own authorization card signed on
July 20 as well as the card of employee Terry signed on July 23.
He was not asked to attempt to relate the Drake conversation with
respect to these two dates, but in all the circumstances we think
the Trial Examiner was correct in selecting late July as the date of
the Drake-Thomas conversation It seems likely, based on
Thomas' testimony as a whole and the similarity of
contemporaneous sentiments by Drake credited by the Trial
Examiner, that this conversation with Thomas-in which Drake
remarked that the Union would not get in, that the employees
were jeopardizing their ,cobs by supporting it, and that the
Company would move if it had to-occurred at the inception of
union activity in late July
On the unit issue, as contended by the Respondent, it first
raised the question in its answer, rather than in its brief as the
Trial Examiner found Nevertheless we view the issue as
belatedly urged in the circumstances of this case
In section III, F, of his Decision, second sentence of the seventh
paragraph, the Trial Examiner inadvertently used "Bruce"
instead of "Drake "
2 Concerning the discharge of employees Jones, Fair, and
Patrick, the Trial Examiner, at section III, E, paragraph g, of his
Decision, found them unlawful even accepting the Respondent's
version that the three men were discharged for refusing to go to
work In affirming the Trial Examiner on these 8(a)(3) violations,
we rely upon the fact that the three employees were clearly
engaged in protected, concerted activity at the time of discharge,
and find it unnecessary to decide whether or not they were
engaged in an unfair labor practice strike
In the paragraph of the Trial Examiner's Decision immediately
before section IV, the Trial Examiner adverts to the General
Counsel arguing "somewhat inconsistently" in contending first
that the unilateral wage raises were "illegal" and then that the
three discriminatees were denied them We see no inconsistency
The raises were illegal only in the sense of being unfair labor
practices to induce employees to refrain from union activity
Employees deprived of such raises by reason of discriminatory
discharge clearly have a right to be made whole
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
5
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case commenced by a complaint
issued by the General Counsel of the NLRB on
September 16, 1966, pursuant to Section 10(b) of the
National Labor Relations Act, herein called the Act, 29
U.S.C. 160(b). It is based on a charge filed on July 29, and
amended on Auguat 24, 1966, by Drivers and
Warehousemen's Local Union No. 3027, AFL-CIO,
against J. H. Rutter-Rex Manufacturing Company, Inc. In
essence, the complaint alleges that said Company,
Respondent herein, has violated Section 8(a)(1), (3), and (5)
and that such conduct affects commerce within the
meaning of Section 2(6) and (7) of the Act. Respondent has
answered, denying that it committed any unfair labor
practices.
Pursuant to due notice, this cause came on to be heard
before me on November 9 and 10, 1966, at Columbus,
Ohio. All parties were represented at and participated in
the hearing, and were granted full opportunity to introduce
evidence, examine and cross-examine witnesses, offer oral
arguments, and submit briefs. A brief has been received
from Respondent and General Counsel.
In this case the issues are:
(a) Whether the Company engaged in conduct
offending the prohibition in Section 8(a)(1) of the Act
against interfering with, restraining, or coercing
employees.
(b) Whether the Company unlawfully refused to
recognize and bargain with Local No. 3027.
(c) Whether employees Patrick, Fair, and Jones were
discharged for activities on behalf of Local No. 3027, or to
discourage membership in said Union, or both.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
164 NLRB No. 10
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. ON JURISDICTION
Respondent, a Louisiana corporation, engaged at New
Orleans and elsewhere in manufacturing work clothing
and casual wear, among other things, operates a
warehouse at 57 Courtright Court, Columbus, Ohio, in
connection with its business. During the year preceding
the issuance of the complaint, Respondent, at its New
Orleans plant, received goods and products valued in
excess of $50,000 directly from points outside the State of
Louisiana, and shipped goods and products valued in
excess of $50,000 directly to points outside the State of
Louisiana. Only the warehouse in Columbus, Ohio, is
involved in this case, although Respondent operates other
warehouses in other States. I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction over it in this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Drivers and Warehousemen 's Local Union No. 3027,
AFL-CIO, the Charging Party, is a labor organization
within the contemplation of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal to Recognize Local 3027
About July 19, 1966,1 Kenneth E. Castle, president of
Local No. 3027, spoke to some warehouse employees and
arranged to meet with them after work the next day. That
meeting was held as scheduled at the union hall of Local
No. 3027 in Columbus. Five of Respondent's employees
came to it. Castle did not attend it. However, Charles C.
Smith, a national representative of the AFL-CIO,
substituted for Castle at the meeting at Castle's request,
and solicited those attending to join Local No. 3027. All
five signed authorization cards. (G.C. Exh. 3-7.)
On July 21, Castle telephoned a local Western Union
office and instructed it to deliver a telegram, which he
orally dictated, to Respondent at 3757 Courtright Court,
Columbus, Ohio. This telegram was so delivered and
Respondent received it. A confirming copy thereof (G.C.
Exh. 2A) was mailed to Castle on July 22 in an envelope in
evidence as General Counsel's Exhibit 2. This telegram
apprises Respondent that:
This is to inform you that Drivers and
Warehousemen's Union Local 3027, AFL-CIO
represents an overwhelming majority of your
employees. Demand is herewith made to negotiate
working agreement between the parties. Await your
prompt reply.
No response was ever received by Local No. 3027 to the
foregoing demand, according to Castle, its president. But,
I find that a response was delivered to the office of Local
No. 3027, as more fully set forth in the next paragraph.
By telegram dated July 25, Respondent advised "K. E.
Castle, AF OF L-CIO, 2743 E. 5th Avenue, Columbus,
Ohio, Re your telegram. Suggest you proceed through
Labor Relations Board for determination of whether you
represent our employees. Several years ago, a union
claimed representation and Board election proved
otherwise." (Resp. Exh. 1.) It was delivered by messenger
about 11:30 a.m. on July 25 at the address given therein
and left at the office there.
At the July 20 meeting, conducted by National
Representative Smith, five employees signed union cards
in the presence of Smith: Ronald Richardson, George E.
Thomas, George A. Patrick, Paul Edward Jones, and
Keith A. Fair. (See G.C. Exh. 3-7.) Thereupon Smith
notified Castle that a majority had signed and that an
employee at the meeting would attempt to "sign the
additional employees." Three or four days later, employee
George Patrick handed one more signed authorization
card to Castle. (See G.C. Exh. 8 and 12.)
B. The Discharges of July 28
On July 28, Smith, by prearrangement, met a committee
of three employees (Patrick, Fair, and Jones) at the
warehouse during a coffeebreak or recess at 9:25 a.m. As
Smith, accompanied by these three, started to enter the
warehouse, Kirk Drake, the warehouse manager , accosted
them. Additional employees congregated in the immediate
vicinity. Smith brought along AFL-CIO buttons. They
were distributed among the employees, but only three
actually wore them. After Smith mentioned that his
purpose was to talk to Drake about "further negotiating" a
workable agreement to eliminate pressure on employees,
Drake, in a loud voice, replied, "We want no part of you or
the Union. You can get out." Drake said he would throw
out Smith and placed a hand on Smith, but Smith refused
to leave and insisted that Drake "would have to call the
law" to remove Smith from the premises.
Thereupon Drake made a telephone call from a nearby
glass-enclosed office. A few moments later, Drake waved
to Smith to enter the office. As Smith and his three
employee companions proceeded toward the office,
Assistant Warehouse Manager Kenneth Bruce stopped
the three employees, allowing only Smith to pass. When
Smith refused to go without the employee committee,
Bruce permitted all four to pass on. However, Drake
refused to talk to Smith in the presence of the three
employees (Fair, Patrick, and Jones). Thereupon, Smith
left with them without further discussion with Drake.
As Smith left with the three employees, they stopped to
chat with other employees standing around. In a moment,
a bell rang to announce the end of the coffeebreak.
Thereupon, Drake shouted, "Everybody back to work.
Anybody that doesn't go back to work immediately is
discharged." Employees then started to proceed to their
work stations. Turning to the three employees with Smith,
Drake said, "You guys don't need to go to work. You are
discharged as of now." Although Smith sought to reason
with Drake that this was not the way to start collective
bargaining and that the three employees should be allowed
to return to work, Drake commanded all four to leave.
Thereupon, Smith, Fair, Patrick, and Jones departed from
the premises.
Respondent's evidence concerning the foregoing events
is somewhat divergent, although it coincides on the fact
that the three employees were discharged. To the extent
that Respondent's evidence is inconsistent with the facts
found above, I do not credit it. Some of the General
Counsel's evidence on this aspect of the case is also not
' All dates mentioned hereafter refer to 1966, except where
otherwise expressly noted.
J. H. RUTTER-REX MFG. CO. 7
credited, so that the above findings represent a composite.
This partial rejection of both the General Counsel's and
Respondent's testimony is permissible. Brighton Bakery,
158 NLRB 512, footnote 1; N.L.R.B. v. United Brotherhood
of Carpenters and Joiners, Local 571 (Gil Wyner
Construction Co.), 230 F.2d 256, 259 (C.A. 1).
On the afternoon of July 28, Smith telephoned
Respondent's warehouse again "to try to reason with
them." However, the person answering the telephone
replied that Warehouse Manager Drake would not speak
to Smith and directed Smith to get in touch with Mr. Read,
Respondent's counsel in New Orleans.
By letter dated July 29, Respondent offered employees
Jones, Fair, and Patrick immediate reinstatement
"provided you are prepared to comply with all reasonable
directions and instructions from the management." (G.C.
Exhs. 9, 10, and 11.) All three returned on August 3. Two
weeks later, Patrick received a wage increase of 10 cents
an hour. Warehouse Manager Drake, in July, had told
employees about a week before July 20 that he was trying
to obtain wage increases for them. On July 20, Drake left
for New Orleans and, upon his return to Columbus on
July 25, he told employees he had raises for everyone but
he "had to set on them."
C. Interference, Restraint, and Coercion
One of the employees signing a union card on July 20 is
George E. Thomas. (G.C. Exh. 4.) James Walter Terry
signed one on July 23. (G.C. Exh. 8.) In the latter part of
July, Warehouse Manager Drake told employee George E.
Thomas that the Union would not get in , that the Company
"would not stand still for it," that employees who went
along with the Union, jeopardized their jobs, and that the
Company would move its plant out of Columbus "if it had
to." Insofar as Respondent 's evidence contradicts the
foregoing , I do not credit it. I find this violates Section
8(a)(1) of the Act.
Thomas was hired at $1.75 an hour on September 9,
1965. About August 5, 1966, he received an increment of
25 cents an hour . In late October 1966, his pay was raised
another 15 cents an hour.
Employee Patrick also signed a union card (G.C. Exh. 5)
on July 20. On July 25, Warehouse Manager Drake asked
Patrick if Patrick "knew what was going on about the
Union." Continuing, Drake remarked that he had obtained
raises for employees, but would "have to set on them now
until this was over with," that upon his return on July 25,
from out of town, "they hit him in the face," that he could
not understand about the Union, and accused "you guys
couldn 't wait until I returned to start this union bit." In
this conversation, Patrick related that he had heard that,
in the past , the Company had threatened to close down
whenever the Union tried to enter. Drake denied that the
Company was threatening, but added that, in his opinion,
the Company would close the warehouse "before they let a
union in ." Further, when Patrick asked how much the
Company contemplated raising wages, Drake replied he
could not release this information just as Patrick declined
to tell him about the Union. I do not credit Respondent's
evidence to the extent that it is not consonant with the
foregoing findings.
About July 26, Patrick brought some union literature
into the warehouse. Shortly thereafter, Warehouse
Manager Drake brought it to Patrick and, in the presence
of other employees, said that "this must belong to you ...
throw this trash away." Patrick refused to discard it but,
instead, retained it. Then Drake told Patrick to gather up
the rest of the literature and Patrick complied.
Employee Keith A. Fair, on July 21, obtained a signed
union authorization card from employee Bryon Lee Carter.
(G.C. Exh. 12.) On that same day, Assistant Warehouse
Manager Kenneth Bruce mentioned to Fair that a 10-cent
raise for all warehouse employees had been authorized.
Then Bruce added, "I hope you guys is not trying to get a
union in here , because it won't do any good."
Respondent's contrary evidence is not credited.
About July 26, Bruce again spoke to Fair. This time
Bruce asked why Fair wanted a union because "you don't
need a union here ." Replying, Fair said he was for the
Union and "organized it," and did not care who knew it.
On July 26, Fair also distributed union literature at the
warehouse. When Drake saw this, he referred to it as
"trash," stated that he had enough of it, and complained
"that is the last I expected from you." Later that day,
Warehouse Manager Drake asked Faii, "What is this
about a union and what does it have to offer?" When Fair
replied "a grievance system," Drake insisted, "You have a
grievance system." Thereupon, Fair inquired if he could
ask for paid holidays, paid vacations, and pay increases.
Drake replied, "you can ask for it." Continuing, Drake
said, "You know as well as I do that the Company will
close down, sell out, or move rather than have a union in
here, and Mr. Rutter would rather have a heart attack or
die than have a union come in." When Drake asked
whether Fair talked "any of these men into this," Fair
denied that he did. At this point Drake asserted that he
had a 25-cent raise for the men but "someone told (him) to
set on it ." Respondent's evidence not congruous with
these findings is not credited.
Fair returned to work on August 3, following an offer of
reinstatement dated July 29. (G.C. Exh. 10.) About 2 weeks
after returning to work, Fair was given a wage increase of
10 cents an hour.
About July 25, Warehouse Manager Drake told
employee Paul Edward Jones that "the plant will close
down before they let the Union come in.... [Also] we had
a raise for you and something else, but being as the Union
started, we stopped it." Drake then added that on slack
days he could have laid off Jones but Drake did not believe
in that and inquired what the Union could do for Jones.
Replying, Jones said the Union could give him sick
benefits, paid vacations , and paid holidays.
That afternoon Assistant Warehouse Manager Bruce
discussed the fact that Jones was older than the other
employees and that his age might be against him in
seeking employment elsewhere. The Union was not
mentioned, according to Assistant Manager Bruce. But I
accept Jones' version of this incident, as narrated above.
However, I do find, as testified by Bruce, that they
discussed Jones' age and its impediment to obtaining
employment at another establishment.
That afternoon Assistant Warehouse Manager Bruce
informed Jones that the latter's next pay would reflect a
25-cent raise, and that, because Jones was getting old, it
would be "kind of hard" to find a job. Jones was fired on
July 28, so that he did not immediately receive this
increase . However, it was granted to him on the second
payday after he was reinstated on August 3. Jones
returned to work pursuant to a letter dated July 29 (G.C.
Exh. 11) offering him reinstatement.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Concluding Findings as to the Refusal to Bargain
1. The appropriate unit
Eugene Rutter , president of Respondent , described the
operation at Columbus , Ohio, as a "normal warehousing
operation ." According to Rutter , 17 persons were
employed there on July 21 . Of these, seven are over-the-
road truckdrivers , two are supervisors , and one is a
"truckdriver and warehouseman ." See General Counsel's
Exhibit 14 . Over-the-road truckdrivers deliver
merchandise from the factory at New Orleans or
elsewhere to the warehouse in Columbus. The
"truckdriver and warehouseman" is an over-the-road
truckdriver who also performs warehouse duties at any
one of four warehouses where he may be needed , but not
at Columbus.
In the morning of July 26 , Ron Richardson told
employee George A. Patrick that he, Richardson, had
been told the day before that he had been promoted to
assistant supervisor of the warehouse to take Assistant
Manager Bruce's place as soon as Manager Drake left the
warehouse . Bruce had been made superintendent of the
warehouse to replace Drake, who had been transferred to
Mississippi . Drake did not leave for his Mississippi job
until about September 1966. On July 21, Richardson was
employed as an order checker and packer. Later he was
promoted to assistant warehouse manager. He will be
included in the unit as of July 21, for the purpose of
computing the number therein at the time of the
telegraphic demand for recognition . See General
Counsel 's Exhibit 14.
Byron Carter is a billing clerk at the warehouse. See
General Counsel's Exhibit 14. He works in the office
although on occasion , on his own volition , he helps out in
the warehouse . His duties require little or no contact with
the warehouse employees . I find that Carter is an office
clerical and should be excluded from the unit. Victory
Grocery Company, 129 NLRB 1415, 1417; Arts & Crafts
Distributors , Inc., 132 NLRB 166,169.
Further, I find that the two supervisors, Manager Drake
and Assistant Manager Bruce, should be excluded from
the unit . Also the truckdriver and warehouseman will be
excluded because his trucking duties cause him to travel
over the road from Respondent's factories to its several
warehouses , so that he has no community of interest with
the Columbus warehousemen . Nor should this conclusion
be altered because this employee performs some
warehouse work, for none of these latter duties is
performed at the Columbus warehouse.
Finally, the seven truckdrivers will be excluded, for I
find that they are over -the-road truckdrivers who are not
stationed in Columbus , and who deliver goods from
Respondent ' s factories to its warehouses but do no
warehousing work . Thus, they have little or no contact
with the Columbus warehouse employees. Hence, Arts &
Crafts Distributors , Inc., 132 NLRB 166, 168, is not
controlling . Generally, over -the-road truckdrivers are not
included in a larger unit . N.L.R.B. v. Albuquerque Phoenix
Express, 368 F.2d 451 (C.A. 10); N.L.R.B. v. Cumberland
Farms, 370 F.2d 54 (C.A. 1); E.H. Koester Bakery Co., Inc.,
136 NLRB 1006 , 1011-12.
Consequently , I find that on July 21 , an appropriate unit
comprised 6 warehouse employees , computed as follows:
17 total employees less 7 truckdrivers , 1 truckdriver and
warehouseman, 1 billing clerk, and 2 supervisors. See
General Counsel's Exhibit 14. A contrary result is not
required because the petitions of Local 3027 (Resp. Exh. 2)
and of Retail Store Union (Resp. Exh. 3) included
truckdrivers. This is because such petitions are not
conclusive upon the NLRB as they merely denote a party's
opinion of what employees should compose a unit. But the
actual determination of an appropriate unit rests with the
Board.
2. The Union's majority
On July 21, six2 employees were employed in the unit
heretofore found to be appropriate. I find that on that date,
Local 3027 had in its possession five valid employee
authorization cards designating it as their collective-
bargaining agent . (See G.C. Exhs. 3-7.) Patently this is a
majority.
Moreover, I find that the Union's demand for
recognition was of a continuing nature. Scobell Chemical
Company v. N.L.R.B., 267 F.2d 922 (C.A. 2); Local 152,
Teamsters (American Compressed Steel Corp.) v. N.L.R.B.,
343 F.2d 307, 310 (C.A.D.C.); Henry Spen & Company,
Inc., 150 NLRB 138, 139. It follows that the card of
employee Terry (G.C. Exh. 8), signed on July 23, may be
counted in establishing the Union's majority on and after
that date. Also, for this same reason, employee Bello, who
started work at Columbus on July 28 or 29, will be
included in the unit as of that date. Thus, the Union
preserved its majority at all times material . Hence,
Respondent was under a statutory obligation to recognize
and bargain with that Union unless either or both of its
defenses are well taken. N.L.R.B. v. Winn-Dixie Stores,
Inc., 341 F.2d 750, 755 (C.A. 6), cert. denied 382 U.S. 830.
These defenses are: (a) that no valid demand was made on
it, and (b) that Respondent entertained a good-faith doubt
of the unit and the majority.
3. The Union' s demand
Although the Union 's telegram specified that its demand
was made for the purpose of negotiating a "working
agreement ," it also asserts that the Union represents a
majority of the employees . Thus, I find that the telegram
constitutes a valid demand for recognition as majority
representative of the employees , although the word
"recognition" is not used therein. "No particular form of
words is necessary to apprise the employer of the Union's
demand ." N.L.R.B . v. Albuquerque Phoenix Express, 368
F.2d 451 (C.A. 10). It is sufficient that the words used
convey a clear implication that a demand for recognition is
being made . Joy Silk Mills v. N.L.R.B., 185 F.2d 7`32, 741
(C.A.D C.).
4. Respondent's doubt as to unit
In its foregoing telegram, the Union demanded of
Respondent recognition as representative of "an
overwhelming majority of your employees." Literally this
may denote all of Respondent's employees at all its
warehouses. Cf. The C.L. Bailey Grocery Company, 100
NLRB 576, 577-578, where the words "all employees"
were construed to include all employees in a plant
employing more than warehousemen and helpers. But
since (a) the telegram was directed and delivered to
Respondent at its Columbus warehouse, (b) Respondent's
' Bello makes it seven on and after July 28 or 29 He was not
working at Columbus on July 21
J. H. RUTTER-REX MFG. CO.
reply (Resp. Exh. 1) indicates that it understood, upon the
basis of Respondent's Exhibit 3, that its Columbus
warehouse was involved, and (c) Manager Drake on
July 28, in effect, was informed by Union Representative
Smith that the demand covered only the Columbus
warehouse employees, I find that Respondent was aware
that only its Columbus warehouse was involved. Phelps-
Dodge Copper Products Corporation. 152 NLRB 1188,
1192, reversed in 354 F.2d 591 (C.A. 7). Hence, I find that
Respondent was not misled as to the precise warehouse
whose employees Local 3027 claimed to represent. Cf.
Johnnie's Poultry Co., 146 NLRB 770, 772, footnote 5.
A more difficult question arises as to whether the Union
adequately defined the unit for which recognition was
sought, as required by The C.L. Bailey Grocery Company,
100 NLRB 576, 579. I am of the opinion, and find, that the
Union's demand on July 21 satisfied the test laid down in
The C.L. Bailey Grocery Company, supra. In the first
place, the word "employees" does not embrace
supervisors as a matter of law (see Sec. 14(a) of the Act), so
that the two supervisors were not included in the demand.
Secondly, the seven truckdrivers were not employees of
the Columbus warehouse, and thus, Respondent
reasonably could not construe the demand to embrace
them, especially since they were not mentioned. Similar
considerations apply to the truckdriver and
warehouseman. Consequently, the telegram reasonably
connoted that recognition was sought for all others
actually working at the warehouse, i.e., the warehousemen
and the billing clerk. Although the billing clerk has been
found not to be part of the unit , 1 further find that a
demand which includes him is not fatally defective
thereby. This is because I find that the billing clerk's
inclusion is a minor deviation between the unit found
appropriate and that described in the demand. Such
insubstantial variations do not destroy the validity of an
otherwise valid demand. The Hamilton Plastic Molding
Company, 135 NLRB 371, 373; Ash Market and Gasoline,
130 NLRB 641, 642; Brewery and Beverage Drivers
Local 67 (Washington Coca-Cola Bottling Works) v.
N.L.R.B., 257 F.2d 194,196-197 (C.A.D.C.)
Nor does the petition (Resp. Exh. 2) filed by Local 3027
on August 1, modify the demand of July 21. It is true that
this petition expressly comprehends the billing clerk and
truckdrivers. But I have already found that including the
billing clerk constitutes an insubstantial variation which
does not nullify the effectiveness of the demand. Nor does
the fact that the petition embraces truckdrivers render the
demand nugatory, because truckdrivers are not employees
of the Columbus warehouse. Moreover, the petition alleges
that the unit is composed of seven employees, so that
Respondent was reasonably put on notice that its eight
truckdrivers were not to be included. Hence, I find that
the demand inherent in the petition of August 1 does not
modify or alter the demand of the telegram of July 21.
In any event, I find that Respondent did not question the
nature of the demand in general or the unit in particular
when it denied recognition on July 25 (Resp. Exh. 1), and
that this issue was first raised in its brief. Cf. N.L.R.B. v.
Austin Powder Company, 350 F.2d 973, 977 (C.A.6).
Hence, I find that Respondent may not now belatedly raise
these particular issues, for the reason that if it had timely
conveyed its doubt as to the character of the demand or
the appropriateness of the unit, the Union would have had
an opportunity seasonably to amend its demand and its
claimed unit to conform them to Respondent's objections.
Arts & Crafts Distributors, Inc., 132 NLRB 166,169.
9
5. Doubt as to majority
Respondent now contends that it entertained a good-
faith doubt as to the Union's majority. On this issue I rule
that the burden is on the General Counsel to establish a
want of good faith in doubting that majority. Aaron
Brothers, 158 NLRB 1078; Strydel Incorporated, 156
NLRB 1185; John P. Serpa, Inc., 155 NLRB 99; Ben
Duthler, Inc., 157 NLRB 69. Moreover, a doubt of majority
expressed in good faith will defeat a charge and complaint
based on Section 8(a)(5) of the Act, even though, in fact,
the demanding union at the time possesses a majority of
union authorization cards. Cameo Lingerie, Inc., 148
NLRB 535, 538; H. & W. Construction Company, Inc., 161
NLRB 852.
It is my opinion, and I find, that Respondent did not
reasonably entertain a good-faith doubt of the Union's
majority on and after July 21.
In the first place, the only ground assigned for doubting
the Union's majority is contained in a telegram in relevant
part asserting "several years ago a union claimed
representation and Board election proved otherwise." See
Respondent's Exhibit 1. The union alluded to in said,
telegram is probably Retail, Wholesale, & Department
Store Union, AFL-CIO, which filed a petition for an
election on October 25, 1961, in Case 9-RC-4718. See
Respondent's Exhibit 3. However, the loss of an election
by another union almost 5 years before Local 3027
presented its demand for recognition is too remote an
event to gauge present employee sentiment towards
Local 3027, and I so find. Further, assuming no
remoteness, the record shows that three of the present
employees in the unit were hired since 1964. Patently, a
sufficient turnover in warehouse employees has taken
place to warrant the conclusion-and I so find-that no
reasonable basis exists to justify a good-faith doubt that
the present warehouse employees would reject Local 3027
as their collective-bargaining representative. Accordingly,
I find that the loss of an election by another union under
the circumstances will not alone support a good-faith
doubt of a majority by Local 3027.
In the second place, it is not a reasonable basis for a
good-faith doubt that the Union never offered to prove its
majority, as Respondent contends in its brief. Cf. N.L.R.B.
v. Armco Drainage, etc., 220 F.2d 573, 576 (C.A. 6). This is
because Respondent categorically refused to recognize the
Union, thereby creating a situation whereby it would be a
futile gesture to submit proof of majority. "Where, as here,
the Union had proof of its majority status readily available
and [Respondent] chose not to learn the facts, it took _the
chance of what they might be." Jas. H. Matthews & Co. v.
N.L.R.B., 354 F.2d 432 (C.A. 8). See Irving Air Chute
Company v. N.L.R.B., 350 F.2d 176, 182 (C.A. 2); N.L.R.B.
v. C. J. Glasgow Company, 356 F.2d 476, 479 (C.A. 7).
Although Pizza Products Corporation v. N.L.R.B., 369 F.2d
431 (C.A. 6), in some respects resembles the instant case,
in its essential aspects Pizza Products is widely divergent
and invokes a different principle of law. Hence, I consider
Pizza Products not controlling. To some extent N.L.R.B. v.
Cumberland Shoe Corporation, 351 F.2d 917 (C.A. 6), and
N.L.R.B. v. Boot-Ster Manufacturing Company, 361 F.2d
325 (C.A. 6), support the finding above that failure to offer
proof of majority when such offer is useless will not justify
a claim of a good-faith doubt of majority.
In any event, a contention of good-faith doubt vanishes
when an employer contemporaneously engages in unfair
labor practices not consonant with good faith. Drug King,
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., 157 NLRB 343. Elsewhere in this Decision, I have
found that Respondent engaged in conduct violating the
Act. I now find that such conduct "evinces a rejection of
the principle of collective bargaining" (American Cable
Systems, Inc., 161 NLRB 332) and discloses "a desire [by
Respondent] to gain time and to take action to dissipate
the Union's majority." Joy Silk Mills v. N.L.R.B.,185 F.2d
732, 741 (C.A.D.C.). Accord, N.L.R.B. v. Cumberland Shoe
Corp., supra.
Accordingly, I conclude and find that the General
Counsel has established by a fair preponderance of the
credible evidence, including reasonable inferences, that
Respondent's refusal to recognize Local 3027 was not
made in good faith. It follows, and I find, that the Union's
majority status entitles it to be recognized as the exclusive
bargaining agent of all the employees in the appropriate
unit. The Act imposes upon an employer a legal duty to
recognize the majority representative of his employees
unless he entertains a good-faith doubt concerning the
union representative status. Snow & Sons, 134 NLRB 709,
710-711. However, the existence of good faith is not
established merely by an employer's naked affirmative
assertion thereof, N.L.R.B. v. Superior Sales, Inc., 366
F.2d 229, 237 (C.A. 8). Johnnie's Poultry Co., 146 NLRB
770, 773. Rather, good faith is ascertained by regarding the
entire factual situation unfolded by the record. Idem, at
773. As found above, an appraisal of the record discloses
that Respondent's contention of a good-faith doubt is
unfounded. In my opinion Ben Duthler, Inc., 157 NLRB 69,
is not controlling.
E. Concluding Findings and Discussion as to the
Discharges of July 28
Admittedly Respondent discharged employees Patrick,
Fair, and Jones on July 28. The question is whether the
discharges were for cause or were prompted by
discriminatory motives proscribed by Section 8(a)(3) of the
Act. To find that such discharges were unlawful, the
General Counsel has the burden of proving that
Respondent knew or was aware that the three employees
had engaged in union activity and that they were
terminated for such activity. N.L.R.B. v. Chicago
Perforating Company, 346 F.2d 233,238 (C A. 7); N.L.R.B.
v. Murray Ohio Manufacturing Co., 326 F.2d 509, 513
(C.A. 6); Interboro Contractors, Inc., 157 NLRB 1295.
Further, it is axiomatic that union activity neither confers
immunity from discipline by the employer (Metals
Engineering Corporation, 148 NLRB 88, 90) nor insulates
employees from being discharged for nondiscriminatory
reasons. IVellington Mill, etc. v. N.L.R.B., 330 F.2d 579,
586-587 (C.A. 4); N.L.R.B. v. Barberton Plastics Products,
Inc., 354 F.2d 66, 70 (C.A. 6); Mitchell Transport, Inc., 152
NLRB 122, 123. Nor may I inquire into the extent or
reasonableness of discipline lawfully imposed, for the
soundness , wisdom, or harshness of such action are
employer prerogatives. N.L.R.B. v. Prince Macaroni
Manufacturing Co., 329 F.2d 803, 809 (C.A. 1); N.L.R.B. v.
United Parcel Service, Inc., 317 F.2d 912, 914 (C.A. 1);
Thurston Motor Lines, 149 NLRB 1368; N.L.R.B. v. Ace
Comb Co., et al., 342 F 2d 841, 847 (C.A. 8); N.L.R.B. v.
T.A. McGahey, et al., d/b/a Columbus Marble Works, 233
F.2d 406, 412-413 (C.A. 5). However, the fact that a lawful
cause to discharge exists will not justify a release based in
whole or in part on an employee's union activities.
N.L.R.B. v. Barberton Plastics, supra; N.L.R.B. v. Symons
Manufacturing Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v.
Ace Comb Co ., et al., supra ; N.L.R.B. v. McGahey, etc.,
supra at 413 (C.A. 5).
It is my opinion , and I find , that Patrick , Fair , and Jones
were fired because of their union activity , and that the
reason assigned therefor by Respondent , i.e., refusal to
obey an order to return to work , is a pretext or cloak to
mask or disguise the real reason . In ultimately finding that
Patrick, Fair , and Jones were discharged for union
activity , rather than for insubordination , I have relied on
the entire record and the following subsidiary findings,
which I find as facts:
a. Respondent had knowledge of the above employees'
union activity because they wore union buttons and also
accompanied Union Representative Smith when he spoke
to Warehouse Manager Smith on behalf of the Union. And
one of them , Fair , told Bruce he "organized " the Union. In
addition , the small plant rule warrants the inference-and
I draw it-that Respondent was aware that these three
employees were engaging in union activity . New French
Cleaners, 139 NLRB 1176, 1179; Angwell Curtain
Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). In
my opinion N.L.R.B. v. Falls City Creamery Company, 207
F.2d 820 (C.A. 8), is distinguishable.
b. Timing is important . I find that the three employees
were terminated almost immediately after they openly
espoused the union movement by accompanying Union
Representative Smith when he talked to Drake and Bruce.
N.L.R.B. v. Mira-Pak , 354 F.2d 525 (C.A. 5); Arkansas-
Louisiana Gas Company, 142 NLRB 1083, 1085; Texas
Industries , 156 NLRB 423 . "Obviously the discharge of a
leading union advocate is a most effective method of
undermining a union ...... N.L.R.B. v. Longhorn Transfer
Service, Inc., 346 F .2d 1003, 1006 (C.A. 5).
c. Also, I find that the manner of discharge is
significant. The three discriminatees were discharged
abruptly without warning . Cf. Levinson's Owl Rexall
Drugs, Inc., 161 NLRB 1531 . Thus, I find that , when the
bell rang announcing the end of the coffeebreak , Manager
Drake shouted , "Everybody back to work . Anybody that
doesn 't go back to work immediately is discharged." But I
further find that Drake gave the three no chance to return
to work as he told them in almost the same breath, "You
guys don't need to go to work . You are discharged as of
now." Respondent ' s evidence not consonant with the
foregoing is not credited.
"The abruptness of a discharge and its timing are
persuasive evidence as to motivation ." N.L.R.B. v.
Montgomery Ward & Co., 242 F .2d 497, 502 (C.A. 2), cert.
denied 355 U .S. 829 ; N.L.R.B. v. L. E. Farrell Company,
Inc., 360 F . 2d 205, 208 (C.A. 2). And a failure to give any
explanation for the discharge supports an inference of
discriminatory intent . N.L.R.B. v. Griggs Equipment, Inc.,
307 F.2d 275, 278 (C.A. 5). I draw this inference.
d. Respondent displayed antiunion hostility . This in
itself is not an unfair labor practice . N.L.R.B. v. Audio
Industries , Inc., 313 F.2d 858 (C.A. 7); N.L.R.B. v. Threads,
Inc., 308 F.2d 1, 8 (C.A. 4). But it is a factor which may be
considered in evaluating the reason for an employee's
discharge . N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91
(C.A. 5). Yet such animus does not per se render a
discharge illegal . N.L.R.B . v. Covington Motor Company,
Inc., 344 F.2d 136, 138 (C.A. 4); Lasko Metal Products,
Inc., 148 NLRB 976, 978 . There must be a proximate
connection between the two. However , I find a causal link
between this animus and the discharges as more fully set
forth herein . Cf. N.L.R.B. v. Ace Comb Co., et al., 342 F.2d
J. H. RUTTER-REX MFG. CO. 11
841, 847 (C.A. 8); McCormick Longmeadow Stone Co., Inc.,
155 NLRB 577.
e. The three dischargees were the only employees
openly espousing the Union and thus may be considered as
the prime employee movers or leaders of the union
movement at the warehouse. Of course, this does not
shield them from discharge for cause. N.L.R.B. v. Dixie
Terminal Co., 210 F.2d 538, 540 (C.A. 6). But it is not
essential to show that their union activity was the only
reason for the discharge. It is sufficient to condemn the
discharges as unlawful "if [discrimination] is a
substantial or motivating reason, despite the fact that
other reasons may exist." N.L.R.B. v. Whitin Machine
Works, 204 F.2d 883, 885 (C.A, 1). See N.L.R.B. v.
Barberton Plastics Products, Inc., 354 F.2d 66, 70 (C.A. 6).
For the reasons set forth above I find that a substantial or
motivating reason for the discharges is the union activity
of the three discharged employees. In this connection, I
have kept in mind the rule of law that because the
discharges were synchronous with union activity does not
establish, without more, a discriminatory purpose. But I
find that the record herein reveals a discriminatory intent.
f. A Respondent will rarely admit to violating the law
when discharging an employee. Rather, he will point to
real or imagined shortcomings of the employee as the
reason for a layoff. Hence, it becomes necessary to
ascertain, as a matter of reasonable inference, whether
such deficiencies or union hostility led to the discharge.
Upon the basis of the entire record I draw the inference
that the three were discharged for their union activity. In
this connection, I recognize that a refusal to obey a
command to return to work justifies a discharge for cause.
But I find that the three were not ordered to return to work
before their discharge, and, in any event, that failure to
work was not the principal or substantial reason for their
termination.
g. Even accepting Respondent°s version that the three
were discharged for refusing to go to work, nevertheless I
find that such discharges are unlawful. This is because I
find that the three at the time were engaged in a protected
activity in accompanying Union Representative Smith,
and that their failure to return to work amounted to a
strike. Further, I find it was an unfair labor practice strike
protesting a denial of recognition which Respondent was
obligated to grant. Hence, I find that Respondent
unlawfully discharged unfair labor practice strikers under
its own interpretation of the record. Such discharges
manifestly violate Section 8(a)(3) of the Act. Golay &
Company, Inc., 156 NLRB 1252, enfd. 371 F.2d 259
(C.A. 7); N.L.R.B. v. American Manufacturing Company,
et al., 106 F.2d 61, 67-68 (C.A. 2), modified on another
issue 309 U.S. 629.
F. Concluding Findings and Discussion as to Interference,
Restraint, and Coercion
In the latter part of July, Warehouse Manager Drake
spoke to employee Thomas, as more fully set forth above.
Having credited the General Counsel's account thereof, I
find that Drake's utterances constitute interference,
restraint , and coercion, as they amount to a threat of
reprisals if the employees joined the Union or if the Union
became their bargaining agent.
About July 25 Warehouse Manager Drake asked
employee Patrick if Patrick knew what was going on about
the Union. Patently this interrogation is coercive, and I so
find, as it was not made for a legitimate purpose. Johnnie's
Poultry Co., 146 NLRB 770, 774-775. In my opinion
Bourne v. N.L.R.B., 332 F.2d 47 (C.A. 2), is
distinguishable. Drake also mentioned that he had
obtained raises but would have to withhold them "until
this is over with." I construe this to mean that the raises
were denied until Respondent was convinced the
employees rejected the Union. This is coercive and I so
find. Of course, an employer may not lawfully increase
wages unilaterally during the period a union represents a
majority of his employees, and he may so inform
employees. But I find that Drake did not intend to convey
this impression, especially since I have found that
Respondent was at that very moment denying recognition
to the Union.
In the foregoing conversation Drake also gave it as his
opinion that the Company would close the warehouse
before recognizing a union. Patently this is coercive. A
contrary result is not required because this represented
Drake's personal opinion or that Drake was not expressly
authorized to make this statement. Since Drake was the
warehouse manager I find that his said conduct is within
the apparent scope of his authority as such and that
Respondent may be held accountable therefor.
Drake also made other remarks to Patrick in the same
conversation described above, and also spoke to Patrick
again about July 26. I find these statements are innocuous
as they contain no threat of reprisal or promise of benefit.
Hence, they may not be used to fasten an unfair labor
practice upon Respondent as I am of the opinion, and find,
that they are protected by Section 8(c) of the Act. Perhaps
the incient of July 26 deserves brier comment. At most
Drake's words express an opinion. Merely describing
union literature as trash and requesting an employee to
destroy it does not amount to a threat of reprisal. And
asking an employee to pick up union literature which he
has left lying around in the warehouse does not interfere
with the right to distribute such literature in nonworking
areas of the plant. Stoddard-Quirk Manufacturing Co., 138
NLRB 615, 621. Hence, this request by Drake was proper.
About July 21, Assistant Warehouse Manager Bruce
told employee Fair that a union would not do employees
any good. I find this is coercive as it connotes that it would
be fruitless to have a union because Respondent would not
deal with the union. Cf. Better Val-U Store of Mansfield,
Inc., 161 NLRB 762.
About July 26, Bruce again spoke to Fair. Although
Bruce expressed hostility to unions on this occasion, I find
this to be protected under Section 8(c) of the Act. N.L.R.B.
v. Threads, Inc., 308 F.2d 1, 8 (C.A. 4). Bruce also told
Jones he was receiving a 25-cent raise in his next pay. I
find this is coercive as a promise of benefit. Warehouse
Manager Drake also on this day told Fair that the
Company will close down, sell, or move the warehouse
rather than have a union in it. Manifestly, this is a threat of
reprisal and therefore coercive. I so find. Finally, Drake, in
this conversation, also told Fair that he had been ordered
not to put in force a raise which Drake had for the men.
Since this occurred in the course of antiunion expressions
by Drake, some of which have been found to be coercive, it
is reasonable to infer that the raises had been suppressed
in an effort to wean the men away from the Union. I so
find. Accordingly, I find this statement coercive as it
constitutes a promise of benefit if the men eschewed the
Union.
About July 25, Warehouse Manager Drake spoke to
employee Jones, as set forth above. I find that this
conversation is coercive in that Bruce (a) told Jones the
warehouse would close before Respondent would
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognize a union there , and (b) told Jones that a raise
which had been authorized , had been "stopped" because
the Union was "started ." However , I find the remainder of
said talk by Bruce not to be coercive , and specifically find
that neither Drake nor Bruce threatened to lay off Jones.
About July 28, Warehouse Manager Drake ordered
Union Representative Smith off the premises at the
warehouse in the presence of employees . But since Smith
was a trespasser , I find this action of Drake was not
unlawful . No different result is required because Smith
came as a union representative , for an employer may
refuse access to his plant by nonemployee union
representatives so long as other available channels of
communications are open . Cf. N.L.R.B. v. The Babcock &
Wilcox Company, 351 U.S. 105, 112. 1 find that other
channels were available ; namely, telephone , telegraph
and mail . Hence, I find this aspect of the complaint is not
well taken and, therefore , should be dismissed.
Admittedly wage increases of 10 cents to 25 cents were
granted to the Columbus warehouse employees between
July 28 and August 3. Respondent had determined in April
or May, on the basis of studies previously made, that a
general wage increase should be granted to all its factory
and warehouse employees. About July 12, this increase
was introduced at all Respondent 's factories . The increase
at the Columbus warehouse was held in abeyance upon
receipt of the demand of Local No. 3027 for recognition on
July 21. However , it was granted shortly after July 28,
because Respondent felt that it would be unfair to
withhold it any longer . Respondent ' s evidence on this
issue is credited . Nevertheless , I find this increase in
wages constitutes an unlawful refusal to bargain as it is a
unilateral change in wages made while the Union
represented a majority . This is so regardless of the
Employer 's good faith in taking such action . N.L.R.B. v.
Benne Katz, etc., 369 U.S. 736, and cases cited in footnote,
11; Mid-West Towel & Linen Service, Inc., 143 NLRB 744,
754-755, affd. 339 F.2d 958 (C.A. 7).
Finally, the complaint alleges that Respondent
unlawfully failed and refused to grant Patrick, Fair, and
Jones the increases mentioned in the preceding
paragraph . President Rutter testified , and I credit him,
that these three employees should have received this raise
retroactive to July 28, when they were reinstated on
August 3. But no documentary proof was introduced by
Respondent to contradict the General Counsel' s evidence
that this retroactive increase has not been received.
Hence, I find that the three employees did not receive the
said increase until about 2 weeks after August 3, but I
further find that it was not withheld for discriminatory
reasons. Hence, no violation is disclosed , and I so find, on
this issue.
However , whether Respondent shall be directed to pay
said wage retroactively is a matter to be determined at the
compliance stage in ascertaining whether the employees
have been made whole. It may be observed that the
General Counsel is arguing somewhat inconsistently, for
he first contends that the unilateral raises are illegal and
then complains that three employees were denied an
illegal wage increase.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with its operations described in
section I , 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
It having been found that Respondent has engaged in
certain conduct prohibited by Section 8(a)(1), (3 ), and (5) of
the Act, I shall recommend that it be enjoined to cease and
desist therefrom and that it take specific affirmative
action , as described below, designed to effectuate the
policies of the Act. Since the discriminatory discharges of
Patrick, Fair, and Jones go "to the very heart of the Act"
(N.L.R.B. v. Entwhistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4)), I shall recommend that the Order to be issued
safeguard employees against infringement in any manner
of the rights vouchsafed to them by Section 7 of the Act. R
& R Screen Engraving, Inc., 151 NLRB 1579, 1587.
Since Patrick, Fair, and Jones have been offered
reinstatement , and they have accepted said offer, no
provision will be recommended to restore them to the
positions from which they were discharged . However, I
shall recommend that each be made whole for any loss of
earnings suffered by reason of the discrimination against
him. In making them whole Respondent shall pay to each a
sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of
reinstatement or a proper offer of reinstatement, as the
case may be, less his net earnings during such period.
Since each returned to work during the same quarter as
his discharge , F.W. Woolworth Co., 90 NLRB 289, is not
applicable . Interest at 6 percent per annum shall be added
to any backpay found due . Such interest shall be assessed
in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716. I shall also recommend that Respondent
preserve and make available to the Board or its agents,
upon reasonable request , all pertinent records and data
necessary to analyze and compute whatever backpay may
be due.
A bargaining order is proper . N.L.R.B. v. Delight
Bakery, Inc., 353 F.2d 344,347 (C.A. 6).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Local 3027 is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the tenure of
employment of George A. Patrick, Keith A. Fair, and
Paul E. Jones, thereby discouraging membership in
Local 3027, Respondent has engaged in unfair labor
practices as defined in Section 8(a)(3) and (1) of the Act.
4. By (a) threatening to close, sell , or move its
Columbus warehouse before recognizing a union threat,
(b) coercively interrogating employees as to their union
membership , desires, or sympathies , (c) telling employees
their jobs were jeopardized if they went along with a union,
(d) telling employees it would not do any good to have a
union , (e) withholding wage raises to discourage
membership in a union , and (f) promising raises to
discourage membership in a union , Respondent has
engaged in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
J. H. RUTTER-REX MFG. CO 13
5. All warehousemen employed by Respondent at its
Columbus warehouse , excluding all office clerical
employees , all guards, professional employees, and
supervisors , as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of -Sections 8(a)(5) and 9 of the Act.
6. On or about July 21, 1966, and all material times
thereafter , Local 3027 has represented a majority, and has
been the exclusive bargaining representative of all the
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Sections 8(a)(5) and 9 of the Act; and Respondent was on
that date , and has been since, legally obligated to
recognize and bargain with Local 3027 as such.
7. By (a) refusing to recognize or bargain with
Local 3027 for the employees in said appropriate unit on
and since about July 21, 1966, and (b) unilaterally granting
increases to employees in said appropriate unit after
July 21, without consulting or negotiating with Local 3027
concerning the same, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. The above -described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
9. Respondent has not committed any other unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that the Board order Respondent, its
officers, agents, successors, and assigns, to:
1. Cease and desist from:
(a) Discouraging membership in Local 3027, or any
other labor organization, by discharging employees or
otherwise discriminating in any manner in respect to their
hire or tenure of employment or any term or condition of
employment.
(b) Threatening to close, sell, or move its Columbus
warehouse before recognizing a union for its
warehousemen there.
(c) Coercively interrogating employees as to their union
membership, desires, or sympathies.
(d) Informing employees their jobs will be Jeopardized if
they go along with a union.
(e) Informing employees it will not do any good to have
a union.
(f) Withholding wage increases to discourage
membership in a union , Local 3027, or any other labor
organization.
(g) Promising wage raises to discourage membership in
Local 3027 or any other labor organization.
(h) Refusing to recognize or bargain with Local 3027 as
the exclusive bargaining representative of all the
employees in the above-mentioned appropriate unit.
(i) Unilaterally raising wages of employees in said
appropriate unit without first consulting and bargaining
with Local 3027 thereon.
(j) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act, except to the extent that
such rights 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 designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 3027
as the exclusive representative of all employees in the
aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody
such understanding in a written, signed agreement.
(b) Make whole George A. Patrick, Keith A. Fair, and
Paul E. Jones for any loss of pay each may have suffered
by reason of the discrimination against him, with interest
thereon at the rate of 6 percent per annum.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its warehouse at Columbus, Ohio, copies of
the attached notice marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for
Region 9, after being duly signed by a properly authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where such notices are usually
displayed. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.4
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
3 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order-"
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Drivers
and Warehousemen's Local Union No. 3027,
AFL-CIO, or any other labor organization, by
discharging any of our employees or in any other
manner discriminating against them in regard to hire
or tenure of employment or any term or condition of
employment.
WE WILL NOT threaten to close, sell, or move our
Columbus warehouse rather than recognize a labor
organization representing our employees at said
warehouse.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT coercively inquire of employees as to
their union membership , desires, or sympathies.
WE WILL NOT tell employees that their jobs will be
jeopardized if they go along with a union or that it will
not do them any good to have a union.
WE WILL NOT withhold wage increases or promise
wage raises to discourage membership in the above-
mentioned Local No. 3027 or any other labor
organization.
WE WILL NOT change wages of employees in the
bargaining unit described below without first
consulting and bargaining with said Local No. 3027
concerning such changes.
WE WILL make whole George A. Patrick, Keith A.
Fair, and Paul E . Jones for any loss of pay incurred by
each of them as a result of their discharge by us on
July 28 , 1966 , with interest thereon at 6 percent per
annum.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act,
except to the extent that such rights 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 , upon request , bargain collectively with
said Local No. 3027 as the exclusive bargaining
representative of all employees in the unit described
below with respect to rates of pay, wages, hours of
employment , and other conditions of employment
and, if an understanding is reached , embody such
understanding in a written , signed agreement.
The bargaining unit is:
All warehousemen employed at our Columbus,
Ohio, warehouse , excluding office clerical
employees , guards, professional employees, and
supervisors , as defined in the Act.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of said
Local No. 3027 , or any other labor organization.
J. H. RUTTER-REX
MANUFACTURING COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office, Room 2407,
Federal Office Building , 550 Main Street , Cincinnati, Ohio
45202, Telephone 684-3663.