Keil Co.

National Labor Relations Board - Board Decisions

Mar 28, 1957

117 N.L.R.B. 828 (N.L.R.B. 1957)

828 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
or not to set aside the election may be based on an administrative
determination . However, in an appropriate case where the employer's
exceptions raise substantial issues of fact, the Board orders a formal
hearing . But here the exceptions raise no issues of fact, and we
accordingly find no prejudice in the failure to hold a hearing.
We find, in agreement with the Regional Director, that the election
should be set aside and a new election should be held.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Order, and Direction of Second Election.
Keil Company and Teamsters Local Union No. 190, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO. Case No. 19-C.4--1326. March
28,1957
DECISION AND ORDER
On August 15,1956, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5 ) of the Act,
and recommending that it be ordered to 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 ex-
ceptions to the Intermediate Report and a supporting , brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed . The Board has considered the Intermediate
Report, the exceptions and the brief , and the entire record in this case,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner with the following additions.
1. We agree with the finding of the Trial Examiner that the Re-
spondent interfered with, restrained , and coerced its employees in
violation of Section 8 (a) (1) of the Act by reducing and by threaten-
ing to,reduce overtime work to emphasize the result that might be an-
'ticipated' - from successful unionization, by unilateral wage increases,
by interrogation of prospective employees concerning union sym-
pathies, by causing employees to circulate a petition for an election
despite the Union's demonstrated majority representation , by solicit-
ing employees individually or through a spouse to abandon the strike
and return to work, by offering individual employees additional pay
117 NLRB No. 127.
KEIL COMPANY 829
to cross the picket line, and by threatening to stall bargaining negotia-
tions should the Union succeed in organizing.
In its brief the Respondent contends that the February 21 unilateral
wage increase of 10 cents an hour to all warehouse employees was "per-
missible" because the Respondent was merely meeting the scale of wages
given by other wholesale grocers in the area as was the Respondent's
established practice. However, the cases cited by it in support involve,
in addition to other distinguishing characteristics, wage raises which
preceded elections rather than unilateral wage raises in derogation of
it bargaining representative which has already demonstrated its ma-
jority.' Thus they are not apposite in the circumstances of this case.
Here the Union presented its majority claim to the Respondent on
February 4 and substantiated it with a list of signatures not questioned
by the Respondent. On February 21, pending the arrangement of bar-
gaining conferences between the parties, the Respondent proceeded to
grant the wage increase to employees in the unit sought without con-
sulting the Union. This is clearly a violation of Section 8 (a) (1) of
the Act. Thereafter, in further violation of Section 8 (a) (1), the Re-
spondent went on to grant additional raises to individual employees,
again without consulting the Union.2
The Respondent also contends in its brief that the mid-February cut-
back on overtime of employee Graham was due to a normal decrease of
business in the late winter season, and that the statements to other em-
ployees concerning no overtime if the Union were successful were mere
predictions protected as free speech by Section 8 (c) of the Act. , We
see no merit in these contentions. No evidence of a business decrease at
the time in question was introduced by the Respondent .3 The express
reason given by Respondent for the Graham cutback was that the em-
ployees might as well get used to working 40 hours because it would be
that way if the Union organized. This occurred not long after the
claim for recognition was made and was clearly a threat intended to dis-
courage union activity. In this context of actually eliminating
overtime work in order to discourage union activity, the subse-
quent statements by respondent to other employees and to the wife of
one employee concerning the probabilities of future reduction of over-
time in the event of unionization contain threats of reprisal unpro-
tected by Section 8 (c). They are not mere predictions such as those
1 Sparkletts Drinking Water Corporation , 107 NLRB 1462; N. L. R. B. v W T Grant
Company, 208 F 2d 710 (C. A 4), note at p 712 the court 's qualification concerning
certified unions ; Barber Colman Company, ,.,116 NLRB 24. See also Good-All Electric
Mfq Co,,117 NLRB 72.
a The" Trial 'Examiner made a finding as to the` increase to employee Sigl on March' 5
but apparently overlooked making a similar finding as to employee Lowell Bartz. The
complaint was amended at the hearing to include the Bartz allegation after Bartz testified
that he requested the Respondent to give him an increase in early June and was granted it.
3 Compare Klinka's Garage, 106 NLRB 969 , 971, 980.
-830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found permissible in A. L. Gilbert Company, 110 NLRB 2067, 2073,
and Cary Lumber Company, 102 NLRB 406, 409.
2. We agree with the Trial Examiner that the Respondent refused
to bargain with the Union in violation of Section 8 (a) (5) of the Act
on and after February 21 when it gave its warehouse employees a uni-
lateral wage increase despite the Union's demonstrated status as their
majority representative.
In its brief the Respondent argues that no significance should be
attached to its failure to question the proof of majority submitted by
-the Union on February 4 when the recognition claim was made, and
that the Trial Examiner erred in treating the Respondent's response
thereto as an admission that the Union did in fact represent a majority.
We see no merit in this argument. Clearly the statements on February
4 of Respondent's president-that he recognized the signatures and
the Union represented a majority of his men-do constitute an admis-
sion of majority representation by the Union in an appropriate unit,
and must be considered in determining whether the Respondent's con-
duct later on can be assessed as evidencing a good-faith doubt of ma-
jority. We think it clear that the Respondent did not have that requi-
site good-faith doubt of majority. It gave no expression to its alleged
.doubt until the March 5 bargaining session, by which time it had en-
gaged in serious unfair labor practices designed to dissipate the
Union's majority, which we have found in violation of Section 8 (a)
(1) of the Act.
The Respondent further argues in its brief that it was entitled to a
reasonable time after the proof of majority was presented to it on
February 4 in which to determine whether the Union actually did rep-
resent a majority, and also that there existed an unresolved doubt as
to the composition of the unit. Concerning the former, it suffices to
say that this is not a situation where the Union failed or refused to
offer proof of majority.4 Here the Union offered proof, the Respond-
ent accepted it, and then the Respondent proceeded to attempt to un-
dermine that majority.
We see no merit in the Respondent's contention that determination
of the unit composition at the hearing establishes that Respondent had
an unresolved doubt in this connection. Until the complaint was filed
in this proceeding, the Respondent raised no issue whatever as to the
unit composition, but its answer to the complaint necessitated full liti-
gation at the hearing in order to define the unit belatedly contested.
In the circumstances of this case this contest as to unit-as to which
unit, incidentally, the Respondent has filed no exceptions-comes too
late to excuse the Respondent's refusal to bargain that began on Feb-
ruary 21. -
* See North Electric Mfg Co v N. L. R B., 123 F 2d 887 (C. A. 6), and Temarkana
Bus Co v.N.L R. B., 119 F. 2d 480 (C A 8).
KEIL COMPANY 831
However, in addition to the Respondent's failure to raise an issue
,with the Union concerning the unit, we note that the background of
dealing between these parties makes it doubtful that Respondent could
have had any doubt about the unit sought to be represented by the
Union. In 1947 the parties had bargained for essentially the same
,unit, that is, warehouse employees, excluding salesmen and office
clerical employees, and in a 1953 proceeding involving the parties, this
Board found the same unit appropriate.5 And as the Union sub-
mitted a form of contract with its 1956 claim to recognition, the Re-
spondent was hardly uninformed as to what unit the Union was cur-
rently seeking. In fact, the record shows that it was prepared to
counter with a form of contract intended to cover the unit as expressed
in the Union's demand.
3. We affirm the Trial Examiner's finding that the Respondent vio-
lated Section 8 (a) (3) of the Act when it discharged employees Sigl,
Logan, and Dugan on or about March 8, 1956, at the beginning of
the strike brought about by Respondent's unfair labor practice in re-
fusing to bargain with the Union, and by refusing to reinstate them
as requested at the strike's termination on or about March 26. We
note that the Respondent in its brief contends that these employees
were not discharged, but laid off "because of declinations in seasonal
work load." The record contains no evidence whatever to this effect.
It does show the hiring of an additional employee, Dale Fleming,
just a week before the strike.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Keil Company, Billings, Montana,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclu-
sive representative of the employees in the above-described unit.'
(b) Discouraging membership in the Union, or, in any other labor
organization of its employees, by, discharging or refusing to reinstate
or in any other manner discriminating against them in regard to their
hire or tenure of employment or any term or condition of their
employment.
(c) Reducing the hours of employment of any of its employees,
or making changes with respect to wages, without prior consultation,
negotiation, or discussion with the Union; threatening its employees
with reprisals if the Union successfully organizes the plant; granting
or promising benefits in order to induce its employees to forsake the
Union, or in any other manner interfering with, restraining, or coerc-
5 Case No 19-RC-1326 (not reported in printed volumes of Board Decisions and Orders).
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing its employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist the Union or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of mutual aid or protection as guaranteed in Section 7 of the
Act, and to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the exclu-
sive representative of all the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
(b) Make whole Walter Sigl, Rodger Logan, and Donald Dugan
for any loss of pay they may have suffered by reason of Respondent's
discrimination against them ; in the manner set forth : in the • section
entitled "The Remedy."
(c) Preserve and make available to the National Labor Relations
Board or its agents, upon request, for examination or copying, all pay-
roll 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 in Billings, Montana, copies of the notice at-
tached hereto marked "Appendix A." 6 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by Respondent's duly authorized representa-
tive, be posted by Respondent immediately upon receipt thereof, and
maintained by it for a period of at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
6In 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."
APRENDIX A
NOTICE TO ALL EMPI:Ot ES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
KEIL COMPANY 833
WE WILL NOT interfere with the Union's efforts to organize our
employees, or refuse to bargain with the Union as the exclusive
representative of the employees in the bargaining unit described
herein.
WE WILL NOT reduce the hours of employment of any of our
employees, or make changes with respect to wages, without prior
consultation, negotiation, or discussion with the Union; nor will
we threaten our employees with- ,reprisals , if -thee Union success-
fully organizes the plant, nor grant or promise benefits in order
to induce our employees to forsake the Union, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organi-
zations, to join or assist Teamsters Local Union No. 190, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers 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 or protection, or to
refrain from any and all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any
employee because of membership in or activity on behalf of any
labor organization.
WE WILL bargain collectively upon request with Teamsters
Local Union No. 190, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.
as the exclusive representative of all employees in the bargaining,
unit described herein, with respect to grievances, labor disputes,
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. The bargaining unit is :
All our full-time and regular part-time stock clerks, order
clerks, warehousemen, and truckdrivers, but excluding office
clerical employees, guards, outside salesmen, mechanic, and
all supervisors as defined in the Act.
WE WILL make whole Walter Sigl,-Rodger Logan, andf Donald-
Dugan-' for, any loss- of pay suffered by them as' a result of our
discrimination against them.
423784-57- vol. 117 54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the
above-named Union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act.
KEIL COMPANY,
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Teamsters Local Union No.
190, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO, herein called the Union , the General Counsel of
the National Labor Relations Board , herein called respectively the General Counsel 1
and the Board , issued a complaint , dated May 23, 1956, against Keil Company, here-
in called Respondent , alleging that Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (3), and (5) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act.
More specifically the complaint , as amended at the hearing, alleged that Re-
spondent ( 1) on various stated occasions since on or about September 9, 1955, inter-
fered with , restrained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act; (2 ) since on or about February 4, 1956 , has failed and
refused to bargain collectively with the Union although the Union then was, and
at all times material herein has been , the designated collective -bargaining representa-
tive of Respondent 'semployees in a certain appropriate unit; ( 3) on or about Feb-
ruary 21 , 1956 , granted a 10-cent -per-hour increase in wages to the employees in
the appropriate unit and on or about March 5, 1956, granted employee Sigl a wage
increase without prior consultation , negotiation, or discussion with the Union, the
duly designated collective -bargaining representative of the employees in the appropri-
ate unit; (4) on or about March 6, 1956, discriminatorily reduced the overtime work
assignments of employee Graham ; ( 5) on or about March 9, 1956, dis-
criminatorily discharged 3 named employees, and since said date refused to re-
instate them to their jobs, because they had participated in an unfair labor practice
strike, even though each of said employees had, at the conclusion of the strike, un-
conditionally requested reinstatement ; and (6 ) since March 16, 1956 , has discrim-
inatorily failed and refused to reinstate employee Keene to his former job because
of his participation in the unfair labor practice strike despite the fact that Keene
had unconditionally requested- reinstatement upon the termination of the strike.2
Respondent duly filed an answer denying the commission of the unfair labor
practices alleged.
Pursuant to due notice, a hearing was held on June 18, 19 , and 20 , 1956, at
Billings, Montana, before the duly designated Trial Examiner . The General Coun-
sel and Respondent were represented by counsel . Full opportunity was given all
parties to be heard, to examine and cross-examine witnesses , to introduce relevant
evidence , and to file briefs and proposed findings of fact and conclusions of law on
or before July 10, 1956 .3 A brief has been received from Respondent's counsel
which has been carefully considered.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
1 This term specifically includes counsel for the General, Counsel appearing at the
- hearing
2 Upon the unopposed motion of the General Counsel the complaint as to Keene was
dismissed.
'At the request of Respondent 's counsel the time was extended to and including
July 30, 1956
KEIL COMPANY
FINDINGS OF FACT
835
1. RESPONDENT'S BUSINESS OPERATIONS
Keil Company, a Montana corporation, has its principal offices and place of busi-
ness in Billings , Montana, where it is engaged in the operation of a wholesale
,grocery business and warehouse. During 1955, Respondent's purchases of goods
and merchandise amounted to more than $2,900,000, over $2,000,000 of which
originated at points outside the State of Montana and were shipped to Respondent's
Billings, Montana, establishment from points located within said State. During
the same period, Respondent sold and shipped goods and merchandise valued at
more than $900,000 to points located outside of the State of Montana.
Upon the above admitted facts, the Trial Examiner finds that, during all times
material herein, Respondent has been, and now is, engaged in commerce within
the meaning of the Act.
If. THE ORGANIZATION INVOLVED
Teamsters Local Union No. 190 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , AFL-CIO, is a labor organ-
ization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the refusal to bargain collectively
1. The appropriate unit
The complaint, as amended at the hearing, alleged that all Respondent's full-time
and regular part-time stock clerks, order clerks, warehousemen, and truckdrivers,
excluding office clerical employees, guards, outside salesmen, mechanic, and all
supervisors as defined by the Act, constitute a unit for the purposes of collective
bargaining within the meaning of Section 9 (b). Respondent's answer averred,
and at the hearing Respondent contended, that in addition to the above-mentioned
classifications of employees the shipping clerk, the receiving clerk, the salesmen,
the male office clerical employees, and the mechanic should be included in the unit.
Respondent's contentions will be discussed seriatim:
At the hearing, the General Counsel took the position that Robert Propp, the
shipping clerk, and Louis Mayer, the receiving clerk, should not be included in the
claimed unit because they are supervisors within the meaning of Section 2 (11) of
the Act which defines a supervisor as:
... any individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment. [Emphasis supplied.]
With respect to Propp, the evidence, most of which is undisputed, establishes that,
as shipping clerk and warehouse foreman, he (1) assigns the warehouse employees
to their respective jobs; (2) transfers them from job to job as the occasion demands;
(3) tells them when to report for work; and (4) grants them time off from their
work. In addition; Propp recommends, from time to time, the hiring and retention
of employees and his recommendations are usually favorably acted upon by George
Keil, Respondent's vice president and general manager. Propp, furthermore, selects
the employees to be laid off when work slackens.
Mayer, as receiving clerk, has charge of the crew which unloads the merchandise
received by Respondent in railroad freight cars and assigns the employees to their
respective jobs. In Mayer's absence, Propp is in charge of Mayer's crew.
Propp and Mayer each perform manual work. However, they are paid on a
monthly basis whereas the other persons working in the warehouse are hourly paid
employees. Unlike the other warehousemen, Propp and Mayer do not punch the
time clock.
The Trial Examiner is convinced, and finds, contrary to Respondent's contentions,
that Propp and Mayer each possess one or more of the necessary statutory requisites
to classify them as supervisors within the meaning of the Act and hence must be ex-
cluded from the appropriate unit.
On July 24, 1953, in Case No. 19-RC-1326 4 (a representation proceeding involv-
ing the same Employer and the Union here involved) the Board excluded from the
4 Not reported in printed volumes of Board Decisions and Orders.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit office clerical employees and outside salesmen despite Respondent's
then contrary contention. Regarding the outside salesmen, the Board concluded, "As
these salesmen work away, from the, plant, are differently compensated, and are en-
gaged in a different kind of work from the employees in the unit, we find that they
have no substantial community of interest with these employees, and we shall there-
fore exclude them."
Since the outside salesmen in performing their duties do not come into contact
with the employees in the claimed unit nor perform any work in the warehouse,
coupled with the fact that Keil conceded at the hearing that in the past 10 years
the duties of the outside salesmen have not changed in any respect, the Trial Exam-
iner finds the record is devoid of any substantial evidence to warrant a finding that
the Board's 1953 decision of,excluding the outside salesmen from the claimed ap-
propriate unit should not presently be adhered to. • Under the circumstances, the
Trial Examiner finds that the outside salesmen should not be included in the ap-
propriate unit.
The credited evidence is convincingly clear, and the Trial Examiner finds, that
the male office clericals have no community of interest with the employees the Gen-
eral Counsel contends should be included in the unit. Moreover, all male office
clericals, except Pat Butler, a newly hired employee, are paid on a monthly basis
and do not punch the time clock. Their main duties, according to the credible testi-
mony of Thomas O'Connor, who, during his some 10 years of employment with
Respondent, has been an office clerical for approximately 6 years, are "The billing
of all the orders that are put up in the warehouse, . . . answer[ing] phones, and . . .
tak[ing] care of all of our customers that we classify as drop-in-trade, who come
into the office to do their buying." In addition, the male office clericals did not re-
ceive,the raise,in pay which Respondent granted all the nonsupervisory warehouse
employees in February 1956.
It is also clear from the following that neither Respondent, nor the male office
clericals themselves, nor the warehousemen consider the male office clericals part
of the claimed appropriate unit : (1) In late February or early March 1956, Kell
requested O'Connor to circulate a petition seeking a Board-conducted election among
the employees. O'Connor, in Keil's presence, explained to the warehousemen the
purpose of the petition and solicited their signatures to said petition. O'Connor's
talks were confined to the persons working in the warehouse. The matter of the
signing of the election petition was not discussed with the male office clericals by
either Kell or O'Connor; (2) when a certain letter, which is discussed at, length be-
low, seeking an election among Respondent's employees, was prepared and circu-
lated, the circulation thereof was confined to those working in the warehouse and the
male office clericals were not asked to sign said letter.
In addition to the above, it should be noted that. (1) In the only collective-bargain-
ing agreement entered into between Respondent and the Union, which was executed
in 1947, the office clericals were excluded from the bargaining unit; (2) the Union's
proposed contract submitted to Respondent in February 1956 excluded all office
clericals from the bargaining unit; (3) the contract which Respondent's bargaining
representative prepared in March 1956, and which was to be used as a basis for bar-
gaining negotiations , specifically excluded from the bargaining unit Respondent's
office'clericals; and'(4')'at no time'pridr to the'filing of its answer to the complaint
herein did Respondent question the appropriateness of excluding the male office
clericals from the bargaining unit.
Upon the record as a whole, the Trial Examiner finds that the male office clericals
employed by Respondent should be excluded from the unit herein found appropriate.
There is still to be determined whether Respondent's mechanic should be included
in the bargaining unit.
The present mechanic, Alton Smith, was first employed as a warehouseman; he
entered the military service of the United States about 1952, and upon his discharge
therefrom, in 1955, was rehired as an automobile-truck mechanic; his place of work
is in the garage separated from the warehouse by a wall; at no time since his rehiring
has Smith worked in the warehouse; his rate of pay is higher than that of the ware-
housemen ; and he did not receive the wage increase granted to the employees in the
claimed unit in-February ,1956.
E¢gar to" grand ; ladge rePt sentative of the International As ociation of
Machinists;` testified' withb&'cofitradiction;- and the Trial Examiner finds, that auto-
mobile-truck mechanics , such as Smith , come under the jurisdiction of his union;
that normally such mechanics are not included in the bargaining unit with ware-
housemen; that there is no similarity between the duties of an automobile-truck
mechanic and those of a warehousemen; and that before a person can qualify as a
journeyman automobile-truck mechanic he must serve a 4-year apprenticeship.
KEIL COMPANY 837
According to the uncontroverted and credited testimony of Don Blewett, the
Union's secretary and business agent, the Teamsters Union does not negotiate col-
lective-bargaining contracts on behalf of automobile-truck mechanics because they
come under the jurisdiction of the International Association of Machinists.
Upon the foregoing facts, and record as a whole, the Trial Examiner finds that
Respondent's automobile-truck mechanic should be excluded from the appropriate
-unit
Upon the entire record in the case, the Trial Examiner finds that all full-time and
regular part-time stock clerks, order clerks, warehousemen, and truckdrivers em-
ployed by Respondent, but excluding its office clerical employees, guards, outside
salesmen, mechanic, and all supervisors as defined by the Act, at all times material
herein constituted, and now constitute, a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act, with respect to
grievances, labor disputes, rates of pay, wages, hours of employment, and other con-
ditions of employment The Trial Examiner further finds that said unit insures to
said employees the full benefit of their right to self-organization, to collective bar-
gaining, and otherwise effectuates the purposes of the Act.
2. The Union's majority status in the appropriate unit
At the hearing„the General Counsel and Respondent's counsel agreed upon the
-record that as of February 4, 1956,5 there were in Respondent's employ 18 persons
(exclusive of L. J. Morgan, Propp, Mayer, the outside salesmen, the male office cleri-
cals, and the mechanic) who may properly be considered as being included In the
appropriate unit
On behalf of the General Counsel there was offered and received in evidence a
document, dated January 27, signed by 12 persons in the unit hereinabove found ap-
propriate expressly authorizing the Union to represent the signers thereof for the
purpose of collective bargaining The genuineness of the signatures appearing upon
said document, all being placed thereon on either February 3 or 4, was not questioned
,or challenged.
It is Respondent's contention that Keil's son-in-law, L. J. Morgan, should be in-
cluded in the appropriate unit. The General Counsel contends otherwise, maintain-
ing that (1) Morgan's business interests are diverse from those of the other Re-
spondent's employees; (2) Morgan's present duties are mainly those of a relief
outside salesman; (3) Morgan's relationship to Keil; and (4) Morgan's supervisory
status, all preclude a finding that Morgan should be included in the appropriate
unit.
Since the record clearly establishes that Morgan, a nonsupervisory employee and
former full-time outside salesman, is presently employed as a relief outside salesman
and a coffeeroom 7 worker, and since his duties and the method by which he is paid
are entirely different from those of the other employees in the appropriate unit, the
'I rial Examiner would exclude him therefrom.
The Trial Examiner has compared the names appearing up--n the aforementioned
designation paper of January 27 with the names stipulated by counsel as being prop-
erly included in the appropriate unit and finds that as of February 4, 12 employees
in the appropriate unit had selected and designated the Union as their collective-
bargaining representative.8 The Trial Examiner further finds that on February 4
the Union was, and at all times thereafter has been, the duly selected and designated
representative of Respondent's employees in the unit heretofore found appropriate.
Accordingly, pursuant to Section 9 (a) of the Act, the Union was, and now is, the
exclusive representative of all the employees in said unit for the purposes of collective
bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment 9
Unless otherwise noted all dates refer to 1956
Wallace Anderson was on sick leave (luring January and February He returned to
work about Match 1, worked for about 2 months, and then suffered a heart attack He is
presently on sick-leave status The Trial; Examiner finds that Anderson, a warehouse
employee, should also be included in the appropriate unit
7 The room is located apart from the warehouse proper
8 As of February 21, when Respondent's first refusal to bargain occurred, as more fully
discussed below, there were 19 employees in the appropriate unit
9 Respondent's contention that the Union lost its majority iepresentative status when
9 employees, including 6 who had signed the Janu; iy 27 designation document, executed,
early in March, a certain "letter" requesting an election be held among Respondent's
employees is discussed at length hereinaftei
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
a. The pertinent facts
Either at the February 3 meeting, which was conducted by Don Blewett and Wil-
liam Campbell, 2 union officials, or the following morning, 12 employees of Re-
spondent, each of whom belonged to the unit hereinabove found appropriate, signed
a document expressly designating the Union as their bargaining representative.
On February 4, Blewett and Campbell called upon Kell and informed him that the
Union represented a majority. In response to Keil's request for proof of the Union's
claim of representation, Blewett handed him the above-referred-to designation docu-
ment containing the signatures of 12 employees of Respondent. Thereupon, accord-
ing to the credible testimony of Blewett, which in the main is uncontroverted, the fol-
lowing transpired:
... He (Kell ) said, "I recognize the signatures of the names." He then
counted on his fingers, and he said, "All right, you represent a majority of my
men. What do you want?" I handed him a pickup and delivery agreement,
a• current pickup and delivery agreement. He examined the agreement that I
handed him, and told me that he could not afford to pay the wages outlined in that
agreement. He then went on to explain that he was operating on a five percent
markup, and that it would be impossible to pay that type [of] wages, and if
the employees were insistent upon that type of wages, he would suggest that
they get a job with the employers signatory . . . to the agreement which had
been offered him. He said further that he would look the agreement over
and would set a date at which we could sit down to negotiate.
Shortly after the above-mentioned meeting, Keil referred the Union's demand
for recognition and bargaining to M. E. Evanson, the secretary-manager of the Asso-
ciated Industries, a concern which handles the labor and public relations problems
of some 600 Billings, Montana, business firms. In a telephone conversation during
the forepart of the week of February 6, Keil advised Blewett that Evanson was
handling the matter for Respondent.
On or about February 10, an official of the Ryan Grocery Company, Respondent's
competitor, informed Keil that Ryan "was going to meet the ten-cents-per-hour raise
granted by the Gamble-Robinson Company." Thereupon, after consultation with
Evanson but without discussion, negotiation, or consultation with the Union, Keil
granted to each employee in the appropriate unit a 10-cent-per-hour increase.io
The employees were advised of the increase in wages on or about February 21 by
a notice enclosed in their pay envelopes reading as follows:
SINCE 1943 WE HAVE HISTORICALLY PAID THE SAME HOURLY
SCALE TO OUR WAREHOUSEMEN AND DRIVERS THAT WAS PAID
BY GAMBLE ROBINSON CO. AND RYAN GROCERY CO.
SEVERAL WEEKS AGO THEY RAISED THEIR SCALE 100 PER HOUR
TO WAREHOUSEMEN AND DRIVERS.
WE ARE NOW MEETING THEIR SCALE BY ANNOUNCING A WAGE
SCALE INCREASE OF 100 PER HOUR EFFECTIVE FEBRUARY 20TH
ON OUR WAREHOUSEMEN AND DRIVERS.
GEORGE L. KEIL
Shortly before the granting of the wage increase, Keil and the warehouse em-
ployees had a discussion regarding the Union. According to the credited testimony of
Robert Dugan, the following took place:
Mr. Keil , showed us an old contract ," he said that would be approximately what
he would want, and he said something about he believed in giving every man
a chance to work, and he believed in certain points of the union, but not all of
them. He said if we go union, it would probably mean a cutdown of our over-
time, and we would probably make less money. And he also stated that he
couldn't afford to pay union scale.
Under date of February 27, Blewett wrote Keil, sending a copy of the letter to
Evanson , complaining of his inability to arrange a bargaining conference and intimat-
ing that if the terms of a contract are not agreed upon by March 15 , the Union would
10 It is assumed that those in the appropriate unit were the only ones to receive the
increase , for the salaried employees , the salesmen , the male office clericals , and the
mechanic were not given said increase.
11 The 1947 contract between Respondent and the Union heretofore referred to.
KEIL COMPANY 839
resort to "economic action." With in a day or two, Evanson arranged a conference
for the evening of March 5.
On March 2, Keil called O'Connor into his office and gave him a printed form
of a petition for a Board-conducted election. Then Keil told O'Connor that since
he was not permitted to ask the warehouse employees to sign the petition, O'Connor
should do so. Thereupon, O'Connor took the petition into the warehouse and
asked some of the employees to sign it. When the employees questioned O'Connor's
authority to circulate the petition, O'Connor stated that one of Respondent's officers
had requested him to do so, adding that if the warehousemen did not want to
sign the printed petition, he would gladly assist them in preparing their own elec-
tion petition. O'Connor then returned to Keil's office and informed him what had
transpired. Keil then accompanied O'Connor to the warehouse's repack room.
After Keil had discussed the petition with 3 employees, he returned to his office
leaving O'Connor with said 3 employees. When it became apparent to O'Connor
that the employees would not sign the printed petition, he suggested that a letter
requesting an election be written. This suggestion was accepted by the three
employees. After dictating the following to one of said employees:
We, the undersigned, do hereby petition that an election be held by those
eligible of Keil Company employees to further negotiations regarding our join-
ing the Teamsters Union.
O'Connor returned to Keil's office, gave him the unsigned punted petition, and,
told him of "the letter."
The above-quoted "letter" was then circulated among the warehousemen, signed
by 9 of them, and handed to Keil about 2 hours before the time set for the
scheduled March 5 bargaining conference.
When Evanson and Keil met with Blewett, Campbell, and 2 or 3 employees
on March 5, Evanson opened the conference by asking Blewett if the Union repre-
sented a majority of the employees. When Blewett replied in the affirmative,
Evanson turned to Keil and asked him if he recognized the Union as the "bargaining
agent for your employees." After Keil had replied, "Well, I don't know," the fol-
lowing then took place, according to the credited testimony of Blewett:
He (Keil) said, then, "Do you take-the boys who wrap coffee?" I said, "If
they work in the warehouse, yes." He said, "Do you take in the college
students?" I said, "If they work in the warehouse, yes." Mr. Keil then said,
"I do not recognize the Teamsters Local Union as the bargaining agent." . . .
I then said to him, "Well, that seems strange. He recognized us once as
the bargaining agent." And he said, "Yes, but since then I have recounted."
I said to him, "Well, we have twelve men on the authorization. You have
to have twenty-five in order that we would not have a majority." He said,
"I do not have near that many." . . .
Blewett further credibly testified that after the above had taken place, Evanson
suggested that a non-Board election among the employees be held the following
day; that he rejected the suggestion because of Keil's previous recognition of the
Union; and that he then told Keil that his "refusal to bargain was cause for me to, and'
I proposed to, put a picket on 'him the following morning"; and thereupon the
conference broke up.
Evanson and Keil each testified, and the Trial Examiner finds, that at the bar-
gaining conference of March 5 Keil said he doubted the Union's majority status
because "the election letter" requesting an election had convinced him that the
Union no longer represented a majority.
On March 6 a picket line was placed at Respondent's establishment and it re-
mained there until March 23.
b. Concluding findings
Uncontroverted credited evidence establishes that as of February 4, the day when
Blewett handed Keil the designation document signed by 12 employees, the Union,
in fact, had been selected and designated by a majority of the employees in the
appropriate unit as their collective-bargaining representative and Kell so admitted
that fact on that occasion. Under those circumstances, Respondent was under a
statutory duty to recognize the Union as the exclusive representative of the em-
ployees in the appropriate unit and to deal with it as such representative. However,
the credited evidence, as summarized above, most of which is- uncontroverted,
discloses that instead of fulfilling its obligations under the Act, Respondent engaged
in serious unfair labor practices designed to destroy the Union's majority status and
thus thwart the employees' self-organization and collective-bargaining activities.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For example: (1) Respondent's action in unilaterally raising the wages of the
employees in the appropriate unit and unilaterally reducing Donald Graham's
overtime assignments at a time when the Union was seeking a conference to negotiate
a bargaining contract; 12 and (2) Keil's selection of O'Connor for the purpose of
securing the employees' signatures to a petition addressed to the Board seeking an
election after said. employees had designated the Union their bargaining representa-
tive, and (3) O'Connor's activities, as Keil's selected agent, in the preparation
of the so-called "election letter" and the subsequent circulation thereof. The ob-
vious purpose of these activities was the attempted dissipation of the 'Union's
majority status. Respondent's contention that the signatories to the "election letter"
had voluntarily repudiated the Union and therefore it was not obligated to recognize
or bargain with the Union is without merit. Medo Photo Supply Co v. N. L R. B,
321 U. S 678; N. L. R B. v Porcelain Steels, 138 F. 2d 840 (C. A. 6); N. L. R. B. v.
Parma Water Lifter Co, supra, N. L R B. v. Trimfit of California, supra
Despite Keil's testimony and Respondent's self-serving statement appearing on
the notices enclosed in the warehousemen's and drivers' pay envelopes that they were
being given a 10-cent-per-hour wage increase merely because two of Respondent's
competitors had granted its warehousemen and drivers similar increases, the Trial
Examiner is convinced, and finds, that the granting of said raises was adroitly and
strategically timed to impress upon the employees that continued union adherence
was a fruitless gesture, would achieve them naught, and they could rely upon their
employer's unilateral generosity to attain their needs. By such conduct, Respondent
not only violated Section 8 (a) (1) of the Act 13 but also violated Section 8 (a) (5)
thereof for, as part of his obligation to bargain, an employer must notify the collective-
bargaining representative of his employees of any contemplated changes in the terms
and conditions of employment in order to give that representative an opportunity
to bargain with respect to such changes.14 Furthermore, Respondent's contention
that it merely raised the wages of its warehousemen and drivers to conform to those
of 2 of its competitors is unconvincing and without substance when consideration is
given to the fact that within 2 weeks of the granting of the aforementioned general
increase, Respondent without consultation or negotiation with the Union, granted
Walter Sigi, a warehouse clerk, an additional 5-cent-per-hour increase in pay.
In addition, the Trial Examiner finds that Keil's and Propp's statements to the em-
ployees that if the Union successfully organized Respondent's employees they would
work only 40 hours per week, and receive no overtime, as in the past, were made
solely for the purpose of undermining the Union and stemming the tide of its or-
ganizational campaign and hence violative of the Act.15 This threat was forcefully
brought to the employees' attention when Respondent, about mid-February, drastically
reduced the workweek of Donald Graham, a truckdriver. Propp, according to
Graham's credited testimony, gave Graham as the reason for the reduction, Keil's
statement that if the Union "came through" the employees would have to work 40
hours so they "might as well get used to it." 16
Respondent's position with respect -to its refusal to recognize and bargain. collectively
with the Union was that it doubted the Union's majority status and based its opinion
solely upon the fact that shortly before the March 5 bargaining conference Kell
was presented with a "letter," signed by nine employees in the appropriate unit, re-
questing that an election be held.
12 Such conduct which was clearly designed to forcibly impress on the employees that
adherence to the Union would avail them naught, has been held to be violative of the
Act See May Department Stores Co v. N. L. R. B , 326 U S 376, N L R B. v.
Trimfit of California, 211 F. 2d 206 (C A. 9) , N L. R. B v Parma Water Lifter Co.,
211 F 2d 258 (C. A. 9) ; N L R. B v. Crown Can Co., 138 F 2d 263 (C A 8) ;
N. L. R B v. Mt Clemens Pottery Co, 147 F. 2d 262 (C A 6) ; F TV. Woolworth v.
N. L R. B., 121 F. 2d 658 (C A. 2) , Southern Colorado Power Co. v N. L. R B, 111 F
2d 539 (C. A 10) , N. L R. B v TVytheville Knitting Mills, 175 F 2d 238 (C A. 3) ;
Cold Spring Granite Company, 101 NLRB 786; Paramount Textile Machinery Co.,
97 NLRB 691.
13 Cold Spring Granite Company, supra
1+N. L R. B. v Crompton-H',ghland4fills, 337 U S 217, May, Department Stores Co. v.
N. L. R B, supra; N L R B v Parma Water Lifter Co, supra
15 N. L R B v Crown Can Co , supra; N L R B. v. Gate City Cotton Mills, 167 F 2d
647 (C A 5).
16 Propp testified, and the Trial Examiner finds, that when Kell instructed him to cut
Graham's overtime, Kell said, "We are losing money, and we should cut the overtime,
and if they were wanting to go in the union, we would work them according to a union
contract."
KEIL COMPANY 841
The credible evidence, however, establishes that on February 4, when Blewett and
Campbell requested Keil to recognize and deal with the Union, the Union was, in
fact, the duly designated bargaining representative of the employees in the appropriate
unit. The fact that Keil knew of the Union's majority status is not open to dispute.
Respondent was therefore under a statutory duty to recognize the Union as the ex-
clusive representative of the employees in the appropriate unit and to deal with
it as such representative. Under the circumstances, Respondent's refusal to recog-
nize and deal with the Union was a clear violation of Section 8 (a) (5) of the Act,
unless Respondent at that time had a bona fide doubt that the Union represented a
majority.
Respondent's conduct and activities, as epitomized above, following the Union's
initial demand for recognition, reveal Respondent's want of good faith. The fact that
Respondent, upon being advised that the majority of the employees in the appropriate
unit had designated the Union as their bargaining representative, embarked upon a
campaign to destroy employee support for the Union through means proscribed by
the Act, clearly demonstrates that its refusal to bargain and its request for an election
were not based upon any desire to resolve a bona fide doubt of the Union's majority
status. Normally, the Board does not hold an employer in violation of the Act if
he in good faith questions the.union's claim of majority status, and asks to have the
matter determined by an election, since that is a conclusive means of establishing the
extent of a union's strength. But here Respondent, upon learning 9f the Union's
majority status, resorted to serious unfair labor practices, the effect of which would
have prevented the election from resolving the issue of which Respondent allegedly
was in doubt Respondent thereby destroyed the efficacy of the very method it had
insisted upon by its refusal to recognize and deal with the Union. Respondent's con-
duct on or about February 21,17 and thereafter, thus clearly supports a finding that
its demand for an election was, in fact, a rejection of the principles of collective bar-
gaining. Respondent thereby transgressed the bounds of permissible conduct to
a sufficient extent to warrant a finding that its refusal to bargain was as ill-intentioned
as its other actions.18
The courts, furthermore, have uniformly held where, as here, an employer with-
holds recognition from a union which is entitled to it under the Act until'its status
is established by an election, and at the same time proceeds to undermine and destroy
the union, that it may be reasonably concluded that the employer's refusal to bargain
stems not from an honest doubt of the union's status but rather from a desire to
avoid his obligations under the Act.19
Respondent's further contention that its refusal to bargain did not violate the Act
since it merely exercised its right to demand an election and that its employees also
considered that they, too, were entitled to an election, is without merit under the cir-
cumstances herein disclosed. It is well established that neither an employer nor his
employees have the right to demand an election, for the Congress left to the Board the
discretion to determine how and when the bargaining status of an employee repre-
sentative should be ascertained .20 In N. L. R. B. v. Samuel J. Kobritz d/b/a Star
Beef Company, 201 F. 2d 156, the Court of Appeals for the First Circuit said regard-
ing a case very similar to the instant proceeding.
the right of employees to bargain collectively through an exclusive bargain-
ing representative is not conditioned upon an antecedent certification by the
Board where, as here, the majority status of the union is clearly established
otherwise, and the employer has no bona fide doubt of such majority status, but
seeks to delay bargaining negotiations while resorting to various coercive tactics
designed to dissipate the union's majority support. N. L. R. B. V. Reed & Prince
17 The (late when Respondent granted the general wage increase to the employees in
the appropriate unit without prior consultation, negotiation, or discussion with the Union
>e See Joy Silk Mills, Inc v N L R B , 185 F. 2d 732 (C. A, D. C.) , Franks Bros.
Co v N. L R B, 321 U S. 702; N L R B v. Federbush Co, 121 F 2d 954 (C A 2) ;
N L R B v Louisitlle Refining Co, 102 F. 2d 678 (C A 6)
19 N L. R B v Consolidated Machine Tool Corp., 163 F 2d 376 (C A. 2) , N L R B v.,
Dahlstrom Metallic Door Co , 112 F. 2d 756 (C. A 2) , AT L. R B. v. Everett Van Kleeck
and Company, Inc, 189 F 2d 516 (C. A 2) ; Joy Silk Mills, supra; N L R B v.
Chicago Apparatus Co., 116 F 2d 753 (C A 7) , N. L R B v Morris P Kirk & Son,
151 F. 2d 490 (C. A. 9) ; N L R B v. Trimfit of California, Inc, supra, N L R B v.
Parma Water Lifter. Co , supra; N. L R B. Y. Geigy Company,-Inc, 211 F 2d 553
(C A 9).
20 N L. R B v. Falk Corp , 308 U. S. 453; N L R B v Waterman Steamship Corp ,
309 U S 206; Southern Steamship Co. v N. L R. B, 316 U. S 31; N L. R B. v.
Garfunkel, 162 F 2d 256 (C. A. 2).
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mfg. Co., 118 F. 2d 874, cert. den. 313 U. S. 595; N. L. R. B. v. National Seal
Corp., 127 F. 2d 776; N. L. R. B. v. Franks Bros. Co., 137 F. 2d 989, aff'd 321
U. S. 702; N. L. R. B. v. Harris-Woodson Co., 162 F. 2d 97 (C. A. 4).21
Furthermore, had the Board been requested or petitioned to hold the suggested
election, it obviously would not have been compelled to do so if it had reason to be-
lieve that the results thereof would not have reflected the employees' free choice, and
thus permit Respondent to benefit by its own wrongdoing.
Respondent also contended at the hearing and in its brief that it may not properly
be found to have violated the Act by withholding recognition of the Union because it
did so at the expressed request of its employees who desired the question of repre-
sentation be settled by an election. Even if supported by the record, which it is not,
this contention is without merit.22
Upon the record as a whole, the Trial Examiner finds that on or about February
21, and at all times thereafter, Respondent, in violation of Section 8 (a) (5) of
the Act, failed and refused to bargain collectively with the Union as the duly desig-
nated representative of the majority of the employees in the unit hereinabove found
appropriate, thereby interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
B. Violations of Section 8 (a) (1)
The complaint, as amended at the hearing, alleged that on and after the date the
Union demanded recognition Respondent, by (a) threatening to reduce the amount
of overtime work its employees were then receiving; (b) granting a 10-cent-per-hour
general wage increase without prior consultation, negotiation, or discussion with the
Union; (c) questioning and interrogating prospective employees regarding their union
membership, activities, and sympathies; (d) causing 2 named employees to solicit
employees to request an election be held in order to avoid collective bargaining with
the Union; (e) granting a wage increase to Sigl without prior consultation, negotia-
tion, or discussion with the Union; (f) offering wage increases to its employees if
they would cross the picket line which the Union had placed at Respondent's premises;
(g) seeking, through remarks to an employee's wife, to induce said employee to
abandon his union activities; and (h) stating that even if Respondent should recognize
the Union, no collective-bargaining contract would be consummated, violated Section
8 (a) (1) of the Act.
With respect to (a): Undenied credible testimony establishes that shortly after
Donald Graham asked Propp for permission to attend a negotiating meeting, which
was to be held early in February between Respondent and the Union, his overtime
work was drastically reduced. The reason given Graham by Propp for the reduction
was to the effect that Graham and the other employees "might as well get used to"
working but 40 hours per week for there would be no overtime if the Union success-
fully organized the plant.
With respect to (b) and (e): The undenied and credible evidence, as found above,
clearly shows that Respondent completely disregarded its obligation under Section 8
(a) (5) and (9) (a) of the Act by not bargaining with the Union before it granted
the general wage increase on or about February 21, and before it granted Sigl an
additional wage increase on or about March 2.
With respect to (c): Lonnie Harmon credibly and without contradiction testified
that toward the end of February he applied to Keil for a job; that Keil asked him if
he would cross a picket line; that he replied, "I didn't feel too much one way or
another, that I might cross" one; that Keil inquired where his father worked; that
when he replied at Carter Oil, Keil remarked "that was [a] union" plant and
"they were having union trouble"; and that the interview concluded when Keil re-
fused him a job because he "didn't want anybody with too many union holds on
him, through, for instance, [his] parents."
Likewise, the undenied credible evidence reveals that in the latter part of February,
when Dale Fleming was interviewed fora job, Keil asked him, among other things,
if he belonged to a union; Fleming replied in the negative and was hired.
George Schuman testified without contradiction, and the Trial Examiner finds, that
when he applied for a job a few days before the strike, Keil asked him if he belonged
n See also N. L R. B. v. Bradford Dyeing Ass'n, 310 U S. 318; International Assn of
Machinists v. N L. R. B., 311 U. S 72; D. H. Holmes Company, Ltd. v. N. L. It. B , 179
F. 2d 876 (C. A. 5).
22 Medo Photo Supply Corp. v N. L It. B., 321 U. S 678; N. L. it. B. v. Newport News
Shipbuilding & Dry Dock Co , 308 U. S 241 ; National Licorice Co. v N. L. it. B., 309
U. S. 350 ; H J. Heinz Co. v N. L R. B , 311 U. S. 514
KEIL COMPANY 843
to the Teamsters Union; that he replied, "No, but I was willing to join"; that he was
not hired; and that the reason given him for not being an acceptable applicant was
that he would not be available for work the following fall 23
With respect to (d): It would serve no useful purpose to again set forth the
facts which heretofore have been found to unquestionably establish that the printed
petition and the so-called "election letter" were prepared and circulated at Re-
spondent's behest 24
With respect to (f): According to the undenied and credible testimony of Sigl,
Keil telephoned him shortly after the collective-bargaining conference had broken
up and told him some of the details of the meeting; that Keil also stated that no
doubt the Union would place a picket line at Respondent's place the following
morning, March 6, but that Sigl "didn't need to be afraid to come to work in the
morning" because the pickets could not "do" anything to him; that Keil remarked
that he should not remain away from his job because he had "a pretty good job .. .
and ought to hang on to it"; that if the Union's campaign was successful the em-
ployees would earn less money; and that Keil also added, "Tomorrow is payday. .
We will give you $1.40 for the last two weeks instead of only starting this Monday." 25
Rodger Logan, a former employee of Respondent, testified without contradiction,
.and the Trial Examiner finds, that while he and Sigl were on strike Keil said to them
that he did not believe the Union represented the majority of the employees and
therefore they "were fighting a losing battle, and that the smart thing for us to do
would be to go back inside and go to work."
Logan credibly and without contradiction further testified that during the strike he
heard Propp tell Bill Keene that if Keene did not return to work Respondent would
hire a replacement.
With respect to (g): Irene Biggs testified that she is the wife of William Biggs,
an order clerk and truckdriver of Respondent; that her husband acted as a picketer
during the strike; that in the forepart of March, Keil came to the place where she
then worked and told her, among other things, that if the Union "did go in," the
employees' hours of work would be reduced; that her husband was a good worker;
and that her husband should not be on the picket line because if he is seen on it
he wouldn't be able to get another warehouse" job.
With respect to (h) : According to Graham's undenied and credible testimony,
one evening during the strike Keil called at Graham's home and after telling
him that the "strike wouldn't work" and hence it was useless for Graham "getting
mixed in it," Keil stated that if he ever had to negotiate with the Union he could
stall the Union for months at a time by offering wage scales not acceptable to the
Union.
The Trial Examiner finds that each conduct and activity summarized in paragraphs
(a) through and including (h) was engaged in by Respondent for the specific
purpose of undermining the Union in the eyes of the employees here involved and for
the additional purpose of attempting to induce said employees to renounce their af-
filiation and sympathies for, and their activities on behalf of, the Union. Under the
circumstances, the Trial Examiner finds that by such conduct and activity Respondent
has interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
C. Violation of Section 8 (a) (3)
The complaint, as amended at the hearing, alleged that the strike, which lasted
from March 6 through 26, was an unfair labor practice strike; that on March 9,
Respondent discharged Sigl , Logan , and Robert Dugan 25 because of their participa-
tion in said strike and because of their other union activities ; and that since the
= Schuman is presently a student at a college located in Billings. However, he intends
to enter a college located elsewhere this coming fall
24 George Reed testified that it was his idea to circulate a request for an election The
Trial Examiner does not credit Reed's testimony. O'Connor testified that he dictated the
"election letter" to Donald Allen and Allen identified the "election letter," which is in
evidence, as being the one O'Connor dictated to him. O'Connor and Allen impressed the
Trial Examiner as being forthright and honest witnesses. Reed did not so impress him.
The Trial Examiner therefore finds O'Connor's and Allen's testimony with respect to the
"election letter" to be substantially in accord with the facts
25 On March 5, Kell unsolicitedly and unilaterally raised Sigl's wages from $1 35 to
$1.40 per hour.
29 Upon the General Counsel 's unopposed motion the complaint as to Bill L. Keene was
dismissed
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion of said strike has refused Sig], Logan , and Dugan reinstatement despite-
their unconditional offer to return to work at the strike 's conclusion.
In its brief Respondent contended that the strike "was in effect a recognition strike,
intended by the union to force the employer to accept it as the bargaining repre-
sentative of Respondent 's employees without any election on the part of the em-
ployees. It was not an unfair labor practice strike; no allegation or accusation what-
ever of any unfair labor practice on the part of the employer was made by the
union at the meeting on the night of March 5 or at any time until several days after
the picketing had commenced."
In the first place, according to Blewett 's undenied and credible testimony , Blewett
at the March 5 meeting, after Keil had refused to bargain collectively , "notified Mr.
Keil that his refusal to bargain was cause for me to, and I proposed to, put a picket
on him the following morning." In the second place, as the Board held in West
Coast Casket Company, Inc, 97 NLRB 820, 824, enfd 205 F. 2d 902 (C. A. 9) and in
Spencer Auto Electric , Inc., 73 NLRB 1416, 1420, the rights of unfair labor practice
strikers do not turn upon whether or not the union had previously advised the em-
ployer of its strike demand.27
Upon the entire record in the case , the Trial Examiner finds that the cause of
the strike was Respondent 's refusal to bargain collectively with the Union and
it is now settled law that upon termination of an unfair labor practice strike, as
here, the strikers were entitled to reinstatement even if reinstatement necessitated
the discharge of new employees hired during the strike . 28 The Trial Examiner
further finds that by Keil's statement to Graham , about 2 days after the commence-
ment of the strike, that he would not allow Sigl, Logan , and Dugan to return to work,
obviously because they had engaged in protected strike and other union activities,
and by following up that announcement in refusing them employment at the ter-
mination of the strike, despite the fact that they had abandoned the strike and had
unconditionally requested reinstatement , Respondent , in fact, discharged Sigl,
Logan, and Dugan on or about March 8, 1956, in violation of Section 8 (a) (3) of
the Act.29
Keil's conclusory testimony that he did not reinstate Sigl, Logan , and Dugan at
the conclusion of the strike because there were no jobs available for them and for
the further reason that they were unsatisfactory workers is not supported by the
record. For example, the day prior to the commencement of the strike Keil and
Sigl had a conversation wherein, according to Sigl's uncontradicted and credible
testimony , the following ensued:
Mr. Keil asked me the rate of pay I had been receiving . I stated that it was
$1.35 per hour with that ten-cent raise we just got 30 Mr. Keil then said to
me that the company values a man for the amount of work he put out, and said
that I had not been with the company for one year , but that evidently I had
been putting out as much work as the rest of the men , and therefore he would
increase my pay to $1.40. . . 31
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set 'forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, violative
of Section 8 (a) (1), (3), and (5) of the Act, it will be recommended that it cease
27 Even if economic considerations may also have been present, an unfair labor practice
strike does not thereby lose its character and scope N L R B v Stacbpole Carbon Co.,
105 F 2d 167 (C A 3) , Berkshire Knitting Mills v. AT L R B , 139 F 2d 134 (C A 3) ;
N L R B v Remington Rand, Inc, 94 F 2d 862 (C. A 2) , N. L R B v Barrett Co,
135 F. 2d 959 (C. A 7).
28 See cases headed by N L R B. v. Mackay Radio cC Telegraph Co, 304 U S 333
29 Under date of June 2, about 10 days after service of the complaint herein, Respondent
wrote Sigl, Logan, and Dugan offering them reinstatement to their former jobs.
31 Effective as of February 20
31 On the eve of the strike Keil offered to pay this additional 5-cent-per-hour increase
retroactively to about February 20, if Sig] would not honor the picket line.
KEIL COMPANY 845
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent on or about February 21, 1956,32 and at all times
thereafter, has refused to bargain collectively with the Union as the representative
of a majority of the employees in an appropriate unit, the Trial Examiner will
recommend that Respondent, upon request, bargain collectively with the Union as
the exclusive representative of all employees in the unit heretofore found appro-
priate, and if an agreement is reached, embody such understanding in a signed
agreement.
Having found that Respondent, on or about March 8, 1956, discriminated against
Sigl, Logan, and Dugan with respect to their hire and tenure of employment because
they had gone on strike in protest against Respondent's unfair labor practice and
had engaged in other protected activities, and Respondent on June 2, 1956, having
offered to each of said employees reinstatement to their former positions without
prejudice to any of the benefits each had previously enjoyed, and only Sigl having
accepted Respondent's offer of reinstatement, the Trial Examiner will recommend
that Respondent make Sigl, Logan, and Dugan whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them by the payment
to each of a sum of money equal to the amount which he normally would have
earned as wages from March 8, 1956, to the date of the' receipt by him of Respondent's
letter of June 2, 1956, less his net earnings during such period.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure the employees here involved their
full rights guaranteed by the Act it will be recommended that Respondent cease and
desist from in any manner interfering with, restraining, and coercing its employees
in their right to self-organization.
Upon the basis of the foiegoing findings of fact, and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Teamsters Local Union No. 190, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All Respondent's full-time and regular part-time stock clerks, order clerks,
warehousemen, and truckdrivers, excluding its office clerical employees, guards,
outside salesmen, mechanic, and all supervisors as defined by the Act, constitute, and
during all times material herein constituted, a unit for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. Since February 4, 1956, the Union has been the exclusive representative of all
the employees in the above-described appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4 By failing and refusing on February 21, 1956, and at all times thereafter, to
bargain with the Union as the exclusive representative of all the employees in the
appropriate unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act
5. By reducing the hours of employment of Donald Graham, without prior
consultation, negotiation, or discussion with the Union, by threatening its employees
with less hours of work if the Union successfully organizes Respondent's"employees,
by discharging, and thereafter refusing to reinstate unfair labor practice strikers
upon their unconditional offer to return to work and to abandon the strike, by
increasing its employees' wages without prior consulation, negotiation, or discussion
with the' Union, by threatening employees with reprisals if they adhered to the
Union, by promising some employees wage increases if they would abandon the
strike and return to work, and by otherwise interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Sig],
Logan, and Dugan. thereby discouraging membership in the Union, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and '(7) of the Act.
[Recommendations omitted from publication.)
22 The date when the 10-cent-per-hour wage increase was announced