Lively Service Co.

National Labor Relations Board - Board Decisions

Apr 21, 1960

127 N.L.R.B. 290 (N.L.R.B. 1960)

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it, become a member of the Association. In the instant case there
was no consent by the Employer to become part of whatever associ-
ation existed among the Big Five.' The Employer was therefore free
to reject the 1959 contract presented to it. Accordingly, as the Em-
ployer never signed the Big Five contract, that contract is not a bar,
and the Union's motion to dismiss on the ground of contract bar is
denied.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (c) of the Act :
All drivers, helpers, and- warehouse employees of the Employer
at its plant in Waltham, Massachusetts, excluding all other employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
3 See Andes Fruit Company, et al, 124 NLRB 781.
Lively Service Company and International Association of Ma-
chinists, Lodge No. 1635 , AFL-CIO. Case No. 33-CA-530.
April V, 1960
DECISION AND ORDER
On June 24, 1959, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Interme-
1 At the hearing and in its brief the Respondent alleges a failure on the part of the
General Counsel to follow Board procedures in the following particulars . ( a) Issuance
of a complaint without obtaining a statement from Respondent as to its position ; and
(b) the amended complaint was based on an additional charge, which had been given a
case number different than that of the original charge (Case No 33-CA-552 instead of
Case No 33-CA-530).
We find no merit in Respondent ' s first allegation . The original complaint was issued
on February 27, 1959 The applicable section of the Board 's Statements of Procedures
(Section 101 4 entitled "Investigation of Charges ," amended effective February 16, 1959,
and appearing at 24 F . R. 1096) permitted the Regional Director in his discretion to dis-
127 NLRB No. 41.
LIVELY SERVICE COMPANY 291
diate Report, the exceptions and brief, and the entire record 2 in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
The rationale of our dissenting colleague flows in the main from
a finding of fact which he would make contrary to that of the Trial
Examiner. He would find that at Respondent's meeting on December
6, 1958, prior to learning of any union activities, Respondent's officers
decided to lay off three employees for economic reasons. Our colleague
continues that, having decided to terminate three employees, President
Lively announced this decision at an employee meeting on December
8, and asked for volunteers.
We have carefully considered all the testimony with respect to
Respondent's meeting of December 6, and, contrary to the dissent, we
find, as did the Trial Examiner, that, although layoffs were discussed
on December 6, no decision was made at that time. Thereafter, hear-
ing of the pending organization of its employees, Respondent sched-
uled a meeting with them on the morning of December 8. At that
meeting President Lively told his employees that, although they had
the right to join a union, no one was going to tell him how to run his
business or what to pay his men. Lively depreciated the possible
advantages of union representation and asked the men what their final
decision would be. It was in this context that Lively also announced
his decision to lay off three employees and made his request for
volunteers.
After a caucus just outside the door of the shop the men returned
to Lively's presence and their spokesman, Blakely, advised Lively that
their decision was to obtain representation by the Union. Before
Lively left the meeting Blakely telephoned the union representative
and also advised him of this decision. Shortly thereafter, the union
representative came to Lively's office and requested bargaining.
Lively refused to grant this request, stating that he would consult his
attorney. Blakely, Childress, and Muller, all known union adher-
ents, were terminated by Jones that afternoon, at the end of the work-
day but before the end of the workweek, being informed by Jones that
they were the employees who "disrupted the shop the most." In this
pense with portions of the investigation Moreover, since Respondent has presented its
case fully at the hearing and in its brief, we conclude that the failure to obtain a state-
ment as to Respondent ' s position was not prejudicial
As to the erroneous case number, Respondent, by stipulation with the General Counsel
at the hearing, waived any procedural objections in this regard Accordingly, we affirm
the Trial Examiner's ruling granting the General Counsel's motion that the amended
complaint and the additional charge be further amended to show the correct case number.
2 Respondent, subsequent to the hearing, has moved that the record be reopened to re-
ceive an affidavit which explains the substantial overtime work performed by Blakely
during the 2 weeks prior to his discharge Even assuming , as the Respondent urges on
the basis of this affidavit , that special and unusual circumstances required this overtime
work, we are nonetheless in agreement with the Trial Examiner that Respondent dis-
charged Blakely because of his union activities Accordingly , we deny this motion
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
context, the Trial Examiner found, and we agree, that the disruption
adverted to by Jones was the organization of Respondent's employees.
If such "disruption" refers, as Respondent contends and the dissent
would find, to any unsatisfactory performance on the part of those
terminated, we cannot perceive why Respondent found it expedient to
offer each of the three men reinstatement within 3 or 4 months of their
termination.
The Trial Examiner's findings of 8 (a) (3) and (1) are largely based
upon his resolution of the credibility of witnesses. We have adopted
these credibility findings because we are not satisfied on a clear pre-
ponderance of all the relevant evidence that his credibility resolutions
are incorrect. Ore-Ida Potato Products, Inc., et al., 126 NLRB 271.
Therefore, we agree with the Trial Examiner that Blakely, Childress,
and Muller were discharged because of their union activities. Having
already undermined the majority of the Charging Union by these
discharges Respondent had no good-faith doubt in questioning the
representative status of the Charging Union and refused to bargain in
violation of Section 8 (a) (5) and (1) of the Act.
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 Respondent, Lively Service Com-
pany, Albuquerque, New Mexico, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of Ma-
chinists, Lodge No. 1635, AFL-CIO, or in any other labor organiza-
tion of its employees, by discharging any of its employees because of
their concerted or union activities, or in any other manner discrim-
inating in regard to their hire or tenure of employment of any term
or condition of employment.
(b) Refusing to bargain with the aforesaid union as the majority
representative of its employees in the appropriate unit.
(c) In any other manner interfering with, restraining, or coercing-
its employees in the exercise of the right to self-organization, to form,
labor organizations, to join or assist International Association of Ma-
chinists, Lodge No. 1635, 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 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 organiza--
tion as a condition of employment as authorized in Section 8(a) (3)•
LIVELY SERVICE COMPANY 293
,of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Doyle Blakely immediate and full reinstatement to his
former or substantially equivalent position.
(b) Make Doyle Blakely, Charles Childress, and Rudolph Muller
whole in the manner set forth in that section of the Intermediate Re-
port, entitled "The Remedy," for any loss of pay suffered as the result
of the Respondent's discrimination against them.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due and
the rights of employment under this Order.
(d) Upon request, bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit.
(e) Post in its shop in Albuquerque, New Mexico, copies of the
notice attached hereto marked "Appendix."" Copies of this notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the Respondent, be posted imme-
diately upon receipt thereof and maintained for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to shop employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by other material.
(f) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER RODGERS, dissenting :
I disagree with the majority's conclusion that the Respondent vio-
lated the Act.
The pertinent facts are as follows : On December 5, 1958, the Re-
spondent's employees discussed the possibility of contacting a union
to act as their bargaining representative. The following day,
December 6, and without doubt before the Respondent became aware
of any interest in union organization on the part of its employees, Re-
spondent's officials met to discuss business losses incurred during the
prior month. It was decided, according to Respondent's uncontra-
dicted testimony, that three employees would be laid off for economic
reasons. Later that day, the Respondent's employees held an organi-
3In 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."
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zational meeting. On December 7, an official of, the Respondent
learned of the employees' union activity.
On December 8, 1958, Respondent's president, Lively, addressed a
meeting of the employees, at which he stated that all employes had a
right to join a union if they so elected. He then announced that, be-
cause of financial difficulties, it had been decided that three employees
would have to be laid off. He also requested that employees volunteer
for layoff, stating that, if no one volunteered, the Respondent would
have to select the three employees "who were the least assets to the
Company." No volunteers were forthcoming.
That same day, December 8, a union representative called upon
Lively and presented a letter demanding recognition. The represent-
ative exhibited authorization cards signed by the Respondent's em-
ployees. Lively read the Union's letter and said that lie didn't know
what he should do. The Union representative suggested that Lively
should consult an attorney. Later that day, the Union filed a repre-
sentation petition with the Board.
Employees Blakely, Childress, and Muller were laid off late in the
day of December 8. The Trial Examiner found that Service Man-
ager Jones told Muller, at the time of the layoff, that these three em-
ployees had been selected because they were "disrupting the Company
the most."
On December 10, the Respondent wrote the Union that it wished to
have the question of representation decided by a Board election, as-
serting that it had learned that "some of our employees" who had
signed authorization cards had been coerced into so doing.
The Respondent subsequently offered to reinstate each of the laid-
off employees.
On these facts I do not think that the General Counsel has sustained
the burden of proving that Blakely, Childress, and Muller were dis-
criminatorily discharged. In the first place, it is clear that the Re-
spondent had decided, prior to learning of its employees' interest in
unionization, to lay off the three employees for economic reasons.
In the second place, the fact that Service Manager Jones told Muller
that the three employees who were being discharged were "disrupting
the Company the most" does not show, as the Trial Examiner finds,
that these men were selected because of their union activities. The
record establishes that these individuals were continually disrupting
the decorum and working schedule in and out of the shop. Thus
Blakely and Muller were responsible for most of the work which had
been returned to the stop to be redone because their initial repair work
had been unsatisfactory ; Blakely had engaged in a great deal of
"horseplay" in the shop; Muller had caused friction in the shop by
his frequent disagreements with the Respondent's general manager;
and Childress had been in poor health, a fact which had caused the
LIVELY SERVICE COMPANY 295
Respondent to utilize his services in the shop rather than in the field
where he was definitely needed.
Finally, the Respondent engaged in no independent 8 (a) (1) ac-
tivity, but rather had advised its employees of their rights to join a
union. In this context, I point out that one of the laid-off employees,
Muller, was not a leader in the Union's organizational drive, and that
all three of these employees were offered reinstatement several months
later but declined to accept such offer.
As for the 8 (a) (5) allegation against the Respondent, that too, in
my opinion, lacks substance. For the reasons indicated, the 8(a) (3)
allegation against the Respondent has not been proved. Nor is there
here an independent 8(a) (1) allegation, or proof of such a violation.
This case, therefore, cannot be fitted into the typical pattern of those
in which an employer, having received a bargaining request, stalls, or
rejects the request, and thereafter commits unfair labor practices,
thereby dissipating the Union's majority.' Here the Respondent did
not reject the Union's bargaining request. On the contrary, all we
have here is an employer who, having received a bargaining request,
asked for time in which to seek legal advice-a procedure, moreover,
which was suggested to the Respondent by the Union itself.
I would reverse the Trial Examiner herein and would dismiss the
complaint in its entirety.
Cf Franks Bros. Company v. N.L R B , 321 U.S. 702; Joy Silk Malls, Inc. v. N.L.R B.,
185 F. 2d 732, cert. denied 341 U.S. 914.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Asso-
ciation of Machinists, Lodge No. 1635, AFL-CIO, or any other
labor organization, by discharging any of our employees because
of their concerted or union activities, or in any other manner
discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees, in the exercise of their right to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
IVE WILL offer Doyle Blakely immediate and full reinstatement
to his former or substantially equivalent position without prej-
udice to his seniority or other rights and privileges previously
enjoyed.
WE WILL make Doyle Blakely, Charles Childress, and Rudolph
Muller whole for any loss of pay suffered as a result of the dis-
crimination against them.
WE WILL bargain collectively upon request with International
Association of Machinists, Lodge No. 1635, AFL-CIO, as the
exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employ-
ment, and other conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement.
The bargaining unit is: All shop and service employees, includ-
ing the parts chaser, but excluding guards, watchmen, salesmen,
office clericals, and supervisors as defined in the Act.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
LIVELY SERVICE 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
This proceeding was heard before the duly designated Trial Examiner in Albu-
querque, New Mexico, on April 28 and 29, 1959, on the amended complaint of the
General Counsel of the National Labor Relations Board , herein called the Board,
and answer of Lively Service Company, herein called the Respondent . The issues
litigated were whether the Respondent violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, 61 Stat. 136, herein called the Act. Briefs
have been received from counsel for the General Counsel and counsel for the
Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
LIVELY SERVICE COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
297
The Respondent is a New Mexico corporation with its principal place of business
in Albuquerque, New Mexico, where it is engaged in the business of servicing,
repairing, and renting heavy equipment.
Respondent's gross annual revenues approximate $475,000. It purchases annually
materials valued in excess of $50,000 which originate outside the State of New
Mexico. I find that the operations of the Respondent are in and affect commerce
and that the Board has jurisdiction to entertain the complaint.
If. THE ORGANIZATION INVOLVED
International Association of Machinists , Lodge No. 1635, AFL-CIO, herein
called the Union, is a labor organization within the meaning of Section 2 (5) of the
Act, admitting to membership employees of the Respondent.
Ill. THE UNFAIR LABOR PRACTICES
On December 6, 1958, 10 of the 13 service employees of the Respondent attended
a meeting at the home of one of them, Howard Graham, and listened to James
Jones, Grand Lodge representative of the Union, explain the advantages of union
representation. After a discussion, nine of them signed cards designating the Union
as their bargaining agent. Doyle Blakely was chosen as spokesman for the group
and following, according to his credited testimony, the instructions of the signers,
he forthwith delivered the cards to James Jones. One of those in attendance, Cliff
McMahan, telephoned Charley Jones, Respondent's service manager, and told
Jones of the action taken. McMahan did not testify at the hearing but, according
to Blakely, explained at the December 6 meeting that he thought it inappropriate
for him to sign a card for the Union because he excepted, in the near future, to
be promoted to a supervisory position.
On,Sunday, December 7, Charley Jones met Graham and asked if the men had
signed union cards. Graham admitted that this was so, whereupon Jones said that
he felt aggrieved that the men would take such action without consulting him. Later
in the day Jones told Blakely in a telephone conversation that he had learned of
their meeting and its result, that he thought the men should first have discussed the
matter with him, and said that he would like to meet with them all on the morning
of the following day. Sometime on this Sunday, Blakely and another employee,
Charles (Bud) Childress, called at the home of Everardo Fraide. When Fraide
was told that all of the employees had signed union cards and that he probably
would be required to do so if he desired to continue his employment with the
Respondent, he followed the example set for him
On Monday morning, December 8, at 7:30, all of the men gathered in the shop,
and William E. Lively, Respondent's president, spoke to them asking first if the men
had chosen a spokesman . Blakely volunteered that he occupied that position.
Lively then went on to say that he had been told that the men had joined a union
and Blakely agreed that this was so Lively said that he did not see how this action
would either help or hinder the men and asked what benefits were anticipated.
Blakely said that the men hoped, for one thing , that they would get some type
of insurance. Lively answered that the Respondent had, for the past 2 years, been
considering this question and now had a number of plans from which a selection
would be made. Lively then went on to say that the business operations had re-
sulted , in the month of November, in a loss in excess of $7,000, and that it would
be necessary to cut the working force by three Lively suggested that if any among
them had an intention to quit or was dissatisfied for any reason, he would like to
know about it so as to avoid the necessity of discharging anyone who had a real
desire to retain his employment 1 There was some rather general talk about pos-
sible changes in a wage scale . Lively said he didn't want anyone telling him how
to run his business or what to pay his men. Lively readily conceded that the men had
an "American right" to belong to any organization they desired and said that he would
go along with whatever their decision might be, but that he would not sign anything
until he knew its content . In response to Lively's suggestion that he wanted to know
what the final decision of the men was, they stepped out of the shop and discussed
the matter briefly among themselves. According to Blakely, all agreed that they
1 Page 23, line 18, of the transcript incorrectly reads, "he asked me to resign " It is
hereby corrected to read, "he asked men to resign "
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
still wanted the'Union to represent them.2 In the presence of some of the employees
Blakely reported this decision to Lively and, in Lively's presence, telephoned James
Jones to proceed.
Accompanied by a representative of another labor organization, W. F. Leverenz,
James Jones came to Lively's office that morning. Jones handed Lively a letter
which, in substance, asserted that the Union represented a majority of the shop
employees and requested recognition and an opportunity to bargain. At the same
time, Jones told Lively that he had authorization cards from the employees and
exhibited them. Lively read the letter and said that he did not know what he should
do, whereupon Jones said that perhaps he should consult his attorney. Lively testi-
fied that Jones, on this occasion, said that Lively might recognize the Union imme-
diately or, if he desired, arrange for the conduct of an election. Jones and Leverenz
denied that any mention of an election was made. Jones and Leverenz left. Some-
time that afternoon Jones mailed a representation petition to the El Paso office
of the Board.
By a letter dated December 10, Lively told Jones, "As I advised you orally, I am
of the opinion that the proper way for our employees to express their desires in this
matter is through the auspices of an NLRB conducted secret election. It is especially
necessary that we insist upon an NLRB election, inasmuch as some of our employees
inform us that they were coerced into signing a union card."
There has been no subsequent communication between the Respondent and the
Union.
A. The discharges
At the close of the workday on December 8, Blakely, Childress, and iRudolph
Muller were discharged. Blakely had been in the Respondent's employ for about
14 months; Childress and Muller for about 2 years. Blakely had been hired,
according to Jones, as a helper but the evidence establishes that at the time of his
discharge he was something more than that. I think it more accurate to describe
him as a mechanic or at least a mechanic-in-training. He was frequently assigned
to 'do mechanical work in and out of the shop, and, according to Jones, when the
decision to discharge Blakely was in the stage of discussion, Blakely's work was
compared to that of Kenneth Pierson, a mechanic. Finally, he was paid at the
same rate as J. B. Taylor, also a mechanic. In early 1958, Blakely was sent to
Minneapolis where at Respondent's expense he was given training in the mainte-
nance and repair of certain equipment. Sometime later in that year he attended
for 1 day another and different training school in Albuquerque. On December 4,
1958, at the direction of Jones he received instruction at another such school also
in Albuquerque. In connection with sending employees to training schools, Jones
testified, "We try to get the knowledge to the man that we think is going to benefit
the company the most if he work out, and well, that's the type of man that we like
to keep. Some of them are gratifying for it and others are not." Q: "You mean by
gratifying that some of them benefit from going to school and others don't"
A • "That's right " Somewhat later in his testimony Jones explained, lamely, that
Blakely was sent to the school on December 4 so that the Respondent might be
represented there.
Rudolph Muller, a mechanic, had according to Lively considerable experience in
maintenance and repair of the type of equipment coming to the Respondent's shop
but was not as skilled as others. In the belief that he might be a good supervisor,
in the spring of 1958, Muller was promoted to foreman of the shop and for about
6 months thereafter worked under Charley Jones in that capacity. About November
15, 1958, Muller was put back as a mechanic and another became foreman in his
place. Thereafter until his discharge on December 8, Muller worked as a mechanic
in the shop. On some occasions during his tenure as foreman Muller found himself
in disagreement with Jones in respect to some practices followed by Jones in doing
shopwork. The Respondent concedes that Muller is a competent mechanic but
asserts that those it retained in its employ on December 8 were reasonably believed
to be better.
Childress did not testify. He is described in the testimony as a highly competent
welder but in uncertain health. On December 8, according to Jones, there was no
welding to be done in the shop except on some items that the Respondent was
fabricating for its own use and for which there was no immediate need. Jones testi-
fied that Childress was in truth being kept busy on "made work" and that the only
3I credit Blakely here Some of the employees testified that they intended rather to
postpone decision for a time. If so they did not make themselves heard and did not
protest Blakely's contrary representation to Lively.
LIVELY SERVICE COMPANY 299
need for a welder to be anticipated was on jobs away from Albuquerque where
Childress because of health considerations could not be used.
After the meeting of the employees with Lively on the morning of December 8,
Blakely at first worked on some mechanical job but later in the day was told to
assist Childress in welding. Muller began work with the assistance and guidance
of a factory representative on the repair of a transmission About 4:30 that after-
noon Jones came to Blakely and said, according to the testimony of the latter, that
it was necessary to let three men go, that Lively had instructed Jones to select those
who had been disrupting the shop the most, and that Blakely was one of them.
According to Muller, Jones called him to the office on the afternoon of the 8th
and told him that he was to be discharged at the close of the day. Muller asked if
his work had not been satisfactory and Jones admitted that it was. After about 20
minutes of talk, according to Muller, Jones said, "You three fellows [are] disrupting
the company the most of any men we have got here." A little later in the day,
when Muller was loading tools, Jones repeated this reason to Muller and Blakely.
D. Orton Smith, Respondent's general manager, testified that in the month of
November he noted that men in the shop seemed to have considerable leisure time
which they occupied by standing around and with horseplay Blakely was one who
participated in the latter diversion. In consequence, according to Smith, he men-
tioned to Jones that an opportunity seemed to exist to cut overhead costs by letting
some of the shop crew go. When, on December 6, the Respondent's earnings state-
ment for November was cast up, showing a loss in excess of $7,000, Smith, Lively,
Jones, and Foreman James Moberg met and spent that afternoon discussing what
might be done to avoid further losses. It is contended on behalf of the Respondent
that a decision was reached that afternoon to cut the work force by three and to
leave the selection to Jones. There is no evidence to show that any of Respondent's
representatives knew then that employees were contemplating a union affiliation.
Lively's testimony as to what took place that afternoon provides a slender basis for
a finding that such a decision was reached. The appropriate question was asked
him clearly enough but he did not answer it except possibly by indirection. Much
the same thing is true of the testimony of Smith. He testified that something had
to be done-either "curtail some of our operations or lay off some of our men " 3
Jones comes closer than Lively or Smith in supplying testimony to support the
asserted decision of December 6 to lay off three men. He testified that there was
a discussion of November losses and that a decision was reached that there must
be "a layoff of some kind." In response to the question: "How many people did
you decide would be laid off?" he answered: "Well, three was the number that we
discussed."
Jones testified that it became apparent early Monday afternoon that no one
intended to volunteer for layoff so it became necessary for him to decide who
should be let go. Reasoning that there was nothing but "made work" to occupy
Childress; that Muller was not a first-rate mechanic and in any event could probably
find employment in another shop where he previously had worked; and that Blakely
was the least valuable to the Respondent of the remaining employees, he decided
that these three should be let go and so advised Lively. After a discussion, according
to Lively and Jones, agreement was reached that these discharges would "disrupt
the shop the least." According to Jones he informed the men affected that it was
necessary to cut the work force and that the shop would be least disrupted by letting
them go. Respondent concedes the competency of each of them and asserts that
each has been offered reemployment as work in the shop increased but argues that
the selections were made in the exercise of its best judgment without consideration of
union membership or activity.
The first question for decision is whether the Respondent determined prior to
receiving any knowledge of the appearance of the Union to cut its working force.
The accounts given by Lively, Smith, and Jones as to what took place in the meeting
on December 6 do not in my opinion answer the question to entire satisfaction but
S There is in evidence a writing which Smith said he gave to Jones at some time read-
ing • "Charlie during our Company meeting today Mr. Lively and I discussed the profit
and loss statement to you and as advised we lost a total of $7,745 45 for the month of
November Since all the Euclids have been delivered to Morrison-Kaiser and F & S
I would suggest that you immediately lay off at least three servicemen as we must cut
our overhead We cannot stand anymore such losses as we had in November These men
should be laid off no later than Monday December 8th " This writing has no intrinsic
evidentiary value ; it does not satisfy the requirements of the shop book rule. As it is
clear that Jones did not act on the strength of the memorandum, I base no findings
upon it.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is common experience to encounter witnesses who are blissfully unaware that
ideally they are required to answer a question directly without indulging in the
assumption that everyone will know what is meant in any event . I am not certain
that Lively, Smith , or Jones was evasive in respect to the meeting but I do not
consider their testimony to constitute a firm basis for a finding that any final decision
was reached on that occasion to discharge any set number of employees. There is
substantial evidence- that, except for welding, there was enough work in the shop
to keep all hands employed. In the week ending December 6, Blakely worked a
total of 54 hours, 10 of them at overtime rate. Muller testified that there was
plenty of work of a mechanical nature at hand. Respondent's billings ' for shop
work rose from $7,800 in November to more than $13,000 in December. Lively
testified that billings of approximately $12,000 marked the "break-even" point. It
is possible that little of the December work that developed was predictable on
December 8 but no such contention is made. Blakely's overtime and Muller's
observations as to the work to be done indicate that the necessity for a layoff was
less apparent in December than in the previous month.
When he learned that the employees had signed cards for the Union Jones said
that he was "hurt" that they would do so without first consulting him. It was Jones
who asked the men to attend the meeting on the morning of December 8 where
Lively depreciated the advantages of representation by the Union. I think that there
was nothing unlawful in what Lively said although the injection of the matter of a
layoff in his talk may have caused an apprehensive shiver or two. But he made
it clear that he thought the employees were taking an unwise step that promised
them no benefits . It is easy to believe , and I do, that Jones would consider it
accurate to characterize union protagonists as a disrupting influence in the shop.
Both Muller and Blakely were positive in their testimony that Jones so described them
and Childress when notifying them of their discharge. I do not credit Jones' denial
that he did so and I do not accept the proffered explanation that either Muller or
Blakely misunderstood what was said. Finally, Lively said that he would "go along"
with the decision of the men but when it was made known to him by Blakely that
they still wanted union representation he refused to do so.
It is not for me to tell the Respondent how to run his business or when a layoff
may be justified. If the Respondent was moved by economic considerations to
discharge Blakely, Childress, and Muller no violation of the Act is presented. It is
possible to view the evidence in this record as indicating that the economic interests
of the Respondent were served by making the discharges on December 8. Evidence
has been detailed however sufficient to lead me to the conclusion that none of those
discharged was selected upon the basis of his value as a workman or in consideration
of the Respondent 's need for his services.
I think that the validity of this conclusion is most easily demonstrated in the
case of Blakely. Lively testified that Blakely seemed when first hired to give
promise of being a valued employee The Respondent thought enough of him to
undergo the expense of training in Minneapolis and in Albuquerque. The testimony
of Jones that such training was given only to men whom the Respondent wanted
to keep evidences rather clearly, I find, that Blakely in the eyes of the Respondent
was such a man as late as December 4. No claim is made that subsequent to that
date he demonstrated by his work that he was losing his value as an employee. But
in fact he did so when he appeared as the spokesman for the men who had joined
the Union. After Lively had made his talk to the men, a talk which was in the
nature of a plea for them to change their decision, it fell to the lot of Blakely as
spokesman to tell Lively that there would be no change. Blakely's status before the
end of that day changed from a valued employee in whom the Respondent was
willing to invest money in the belief that it was profitable to do so to that of an
outcast-in the testimony of Jones-one whom the Respondent could let go with
the least harm to the organization but in truth one who, by his position of leadership
in the selection of the Union, was disrupting the shop the most Although Lively
testified that he thought that the three men were being laid off with the expectation
that they would be recalled when business improved, they were not told so. As to
Blakely, the evidence shows no such intention was demonstrated Since December
8, but on dates which I do not find in the record , -at least two mechanics have
been hired. Blakely has never been offered a job as a mechanic with the Respond-
ent since his discharge. He had been offered employment as a welder but did not
accept it.
Muller came to the Respondent's employ in February 1957, so had worked ap-
proximately 22 months when he was discharged . He attended the meeting of the
employees on December 6 -and signed a card authorizing the Union to represent him.
Muller was in no sense a leader in this development and his testimony is susceptible
LIVELY SERVICE COMPANY 301
of the interpretation that he signed with some reluctance. It will be recalled that
McMahan telephoned Jones on that evening first to tell Jones that such a meeting
was to be held and second to report what had happened. In this fashion the
Respondent learned that all but three of the shop employees had signed union cards
and this included Muller. Jones testified that he selected Muller for discharge and
it is of course essential to determine why he did so. I have found that Jones told
Muller on December 8 that Muller was one who was disrupting the shop the most.
Muller so testified and I credit him. Muller also testified, credibly and without
contradiction, that on this occasion Jones assured him that he had no fault to find
with his work. It is true that Respondent's defense is not based upon the premise
that Muller or any one of the three had demonstrated incompetency. All are con-
ceded to be good workmen-just not as good as those retained. The record suggests
that Jones may have resented Muller's possible assertions that Muller was a more
capable supervisor than Jones or that Muller and Jones sometimes found themselves
in disagreement as to how certain repairs could best be made. Jones testified that
he selected Muller for discharge because there remained in Respondent's employ
men more capable than Muller and because he was certain that Muller could find
employment with another company, the company which did hire Muller a few days
after his discharge. If this was so it is difficult to understand why Jones did not
give these reasons to Muller rather than saying that Muller was one of those dis-
rupting the shop the most.
Muller was offered reemployment on March 30, 1959, and refused it.
Childress appears to have been assigned welding work only and to have been fully
qualified in that skill. All witnesses who were questioned in that connection said
that there was little welding work to be done in November and December. In
consequence Childress for some time had been principally engaged in fabricating
some racks and stands for use in the shop. According to Jones this was work that
need not have been done. Although I am certain that the work in which Childress
was engaged was not of a character that would bring immediate revenue to the
Respondent I consider it unlikely that it was in any sense a "leaf raking" project.
The Respondent undoubtedly expected to realize some benefit from Childress' work.
Furthermore, the fact that Childress was highly skilled and that the Respondent
seems generally to have had need for a welder suggests that it found it advisable
to provide nonrevenue work for Childress during slow periods in order to retain him
on the payroll for periods when he would be needed. At least this was the situation
until December 8. In the afternoon of December 7, Blakely and Childress went to
the home of Everardo Fraide, a helper in the shop. Fraide had not attended the
employee meeting the previous evening. Blakely and Childress told Fraide of the
result of the meeting and secured Fraide's signature to a union designation card.
Fraide, that same afternoon, reported the visit to Jones. So on December 8, the
Respondent knew that Childress not only had signed a card but had solicited Fraide
to do so. This of course indicated to the Respondent that Childress was more than
a passive figure in the organizing movement. It is this circumstance, I am convinced,
that persuaded Jones to the conclusion that Childress was a disrupting influence in
the shop and which led to his discharge. The Respondent has hired three or four
welders since December 8 and in late February 1959 offered Childress an opportunity
to return. Whether the offer to Childress was made before or after another welder
was taken on is not answered with any certainty in this record. Childress did not
accept.
In conclusion, I am unpersuaded that the Respondent found itself on December 6
in a situation where it felt that it must move quickly and drastically to cut costs. I
do not credit the testimony that any decision was made on that date to lay off
three or any other number of men. On December 8, after learning that most of the
men in the shop had designated the Union, Lively said that three would have to be
cut from the payroll and asked for volunteers. Whether he was moved to this
decision by considering the November loss in connection with the threat of union
representation is uncertain. He did resent the intrusion of the Union in his shop
and said in the talk to the men, according to the credited and uncontradicted
testimony of Blakely, that he did not want anyone to tell him how to run his business
or what to pay his men. Jones was "hurt" when he discovered that the men had
chosen the Union without consulting him. It may be true, as the Respondent
contends, that its shop was overmanned on December 8, although the amount of
service work billed in December gives rise to doubt. I think it certain, however,
that the Respondent had no firm intention to cut the work force before it learned
of the union movement. Until then the Respondent had been willing to continue
Childress in work bringing in no revenue Suddenly, on December 8 it was not
Finally, Jones said that Blakely, Childress, and Muller were discharged because
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they disrupted the shop most. Nothing of a disrupting nature had taken place except
the unwelcome news that a union - was now the representative of the men. That
was enough.
I find that the Respondent on December 8 discharged Blakely, Childress, and
Muller because of a belief that each of them was active in promoting the interests
of the Union in the shop and that by means of discharge the Respondent might be
able to discourage adherence to the Union By these discharges the Respondent
discouraged membership in and activity on behalf of the Union and thereby violated
Section 8(a)(3) of the Act. By the discharges the Respondent interfered with,
restrained, and coerced employees in the exercise of rights guaranteed in Section 7
of the Act and thereby violated Section 8(a) (1) of the Act.
B. The refusal to bargain
The amended complaint alleges and Respondent's answer denies that all of Re-
spondent's shop and service employees, including the parts chaser, but excluding
guards, watchmen, salesmen, office clericals, and supervisory employees, constitute
a unit appropriate for purposes of collective bargaining. All of the evidence bearing
upon the propriety of this unit indicates that it is a feasible one. The employees
included work in the same shop under the supervision of a single foreman, perform-
ing similar or related work. I find that the described unit is an appropriate one for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
On December 6, 1958, 9 of the 13 employees in this unit signed cards designating
the Union as their representative. On the following day, a 10th, Fraide did so.
One of those signing on December 6, Bennie Garcia, testified that he did so in the
belief that he might not be able to keep his job otherwise. Fraide testified that
he signed on December 7 because of Blakely's advice that if he did not do so he
would be laid off sooner or later Both Garcia and Fraide testified, in substance,
that they felt that they had no choice in the matter, that their employment depended
upon their signing The testimony of Blakely is substantially to the effect that he
made no threats of this character, but that all employees understood that if a
union was organized, membership would be a condition of employment. Muller
testified that he was the last to sign at the December 6 meeting and that he did so
only after he was satisfied that the decision was practically unanimous He ex-
plained in his testimony that one could not expect to remain employed in an
organized shop if he failed to become a member of the Union. Even if it be con-
sidered, and I do not, that Fraide, Garcia, and Muller were placed under some
sort of unlawful compulsion in order to obtain their signatures, it still remains
the fact that on December 8 the Union had been selected as bargaining representative
by 7 of the 13 workers in the shop. As to these seven there is no suggestion that
their signatures were attained by coercive means. I find therefore that in any
view of the evidence the Union was, on December 8 when request for recognition
was made, the majority representative of the employees in the appropriate unit
within the meaning of Section 9(a) of the Act.
The Respondent asserts that it was provided no proof of the Union's status on
that day and that in any event it had the right to put the Union's claim to the test
of an election -by secret ballot It is unnecessary to enter into a protracted
discussion of the Respondent's position for by the unfair labor practices it committed
that day in discharging Blakely, Childress, and Muller, the Respondent made it
impossible for an election to be conducted free from the pressures thus engendered.
The natural, and I find, intended effect of the discharges, was intimidatory. Those
who favored the Union in the morning of December 8 had reason later that day
to question the wisdom of their judgment 4 Furthermore the Respondent had no
reason to doubt the majority claim. McMahan demonstrated his loyalty by telling
Jones of the intended meeting of December 6, and, later, by informing him of
what took place. Certainly the Respondent had reason to believe in the bona fides
of McMahan and thus to trust the report he gave. Finally, on the morning of
December 8 during the talk that Lively made to the employees, McMahan was the
only one who expressed opposition to the Union. After Lively's talk and after
the men had conferred, Lively was told by Blakely in the presence of other employees
that the men still wanted the Union I find that on the occasion of the visit of
James Jones with Lively on December 8 the Respondent held no good-faith doubt
as to the majority status of the Union. I find therefore that by refusing on December
8 and thereafter to bargain with the Union as the majority representative of the
6 Most if not all the employees have indicated that they no longer desire the Union to
represent them. That Respondent's unfair labor practices contributed to these defections
is reasonably certain
LIVELY SERVICE COMPANY 303
employees in the appropriate unit the Respondent violated Section 8(a)(5) of the
Act. By this refusal to bargain the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
and thereby violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with 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
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of the employment of Blakely, Childress, and Muller, it will be recommended
that it offer to Blakely immediate and full reinstatement to his former position
without prejudice to seniority and other rights and privileges previously enjoyed.
I consider the evidence to establish that offers of reinstatement have been made
to Childress and Muller. It is apparent that neither desires to return to work with
the Respondent. It is true that an offer of employment was also made to Blakely
but not to his former or substantially equivalent job. It will be recommended that
the Respondent make Blakely, Childress, and Muller whole for any loss of earn-
ings sustained by reason of the discharges on December 8, 1958, by payment to
each a sum of money equal to the amount he would have earned in Respondent's
employ from the date of discharge to, in the case of Muller and Childress, the date
of the offer of reemployment, and in the case of Blakely, to the date of offer of
reinstatement, less in each case the net earnings during that period. Backpay shall
be computed in accordance with the Board's Woolworth formula.5 Loss of pay
shall be determined by deducting from an amount equal to that which each would
have earned for each quarter or portion thereof, his net earnings in other employ-
ment during that period. Earnings in one particular quarter shall have no effect
upon the backpay liability for any other quarter.
Having found that the Respondent has unlawfully refused to bargain with the
Union in respect to its employees in an appropriate unit, it will be recommended
that the Respondent be required upon request to bargain with the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, Lodge No. 1635, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the tenure of employment of Doyle Blakely,
Charles Childress, and Rudolph Muller, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. All shop and service employees of the Respondent including the parts chaser
but excluding guards, watchmen, salesmen, office clericals, and supervisory em-
ployees, constitute a unit appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. On and since December 6, 1958 the Union has been and is the majority repre-
sentative of the employees in the appropriate unit for purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, or other conditions
of employment within the meaning of Section 9(a) of the Act.
5. By refusing on December 8, 1958, and thereafter to bargain with the Union
the Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a) (5) of the Act.
6. By the discharge and by the refusal to bargain the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
0
5 F TV. Woolworth Company, 90 NLRB 289.