Manor Research Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 909 (N.L.R.B. 1967)

MANOR RESEARCH INC. 909
Manor Research Inc. and Tool and Die
Craftsmen , National Federation of Inde-
pendent Unions. Case 20-CA-4167.
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 13, 1967, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondent has
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision with a supporting brief,
and the General Counsel filed cross-exceptions and
a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as herein modified.
The Trial Examiner found that Respondent
refused to bargain with the Union and unilaterally
altered health and welfare benefits, all in violation of
Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended. We affirm the result for
the reasons herein stated.
In 1962 Respondent and the Union entered into an
agreement in order that Respondent's employees
might be covered by the Union's health and welfare
plan. By that agreement the Respondent recognized
the Union as bargaining agent for its employees. As
found by the Trial Examiner, although the parties
failed to reach agreement, there were negotiations
for a contract in 1964. On January 24, 1966, the
Respondent entered into a further agreement with
the Union to continue its employees under the
Union's health and welfare plan. In April 1966, the
Union requested that the Respondent negotiate a
written contract, and the Respondent refused. In
July 1966, Respondent unilaterally substituted
another health and welfare plan for that which it had
with the Union.
The Trial Examiner, while finding violations of
Section 8(a)(1) and (5) of the Act, viewed this case as
one not involving a prior bargaining relationship, but
as a new attempt by the Union to gain recognition
and bargaining. He considered the 1962 agreement
to be stale, but found that, as the Respondent did not
question the Union's majority status, it was not
incumbent upon the General Counsel to prove that
the Respondent's insistence upon an election was
not based upon a good-faith doubt of majority status.
He concluded that the Respondent's refusal to
bargain at a time when it conceded the Union's
majority status could only be construed as a
rejection of the basic principles of collective
bargaining-recognition of, and bargaining with, the
majority representative of its employees.
We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) and (5). We find
that, when the Respondent refused to bargain with
the Union in April 1966, the Union was the
recognized bargaining representative of the
Respondent's employees. Respondent's original
agreement of 1962, in which it granted recognition to
the Union, remained in force through 1966. It would
strain credulity to hold otherwise; the continued
utilization of the Union's health and welfare plan
(formalized by a renewed written agreement on
January 24, 1966) and the contract negotiations of
1964 demonstrate the existence of a continuing
relationship between the Respondent and the Union.
The absence of a complete formal written collective-
bargaining contract prior to the demand of April
1966 does not alter this conclusion. As found by the
Trial Examiner, the Union represented the majority
of employees in the unit at that time. We, therefore,
find that Respondent withdrew recognition from an
incumbent bargaining representative without
rebutting the presumption of a continuing majority
status and resultant obligation to bargain, thus
violating Section 8(a)(1) and (5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Manor Research
Inc., San Leandro, California, its officers , agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order
with the following modifications:
1. Strike paragraph 2(a) of the Recommended
Order in its entirety, and substitute therefor the
following paragraph:
"(a) If requested in writing by Tool and Die
Craftsmen, NFIU, reinstate the health and welfare
plan in effect for the employees in the above-
described unit prior to July 25, 1966."
2. Substitute the following paragraph for the third
indented paragraph of the notice:
WE WILL, if requested in writing by Tool and
Die Craftsmen, NFIU, reinstate the plan for
employee health and welfare benefits which
was in effect prior to July 25, 1966.
165 NLRB No. 111
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor
Relations Act, as amended, was heard before me pursuant
to due notice at San Francisco, California, on
December 20, 1966. The complaint, amended at the
hearing, originally issued on October 4, 1966, on a charge
dated July 25, 1966, and amended on September 30, 1966.
The complaint, as amended, alleged that Manor Research
Inc., herein called Respondent, engaged in unfair labor
practices proscribed by Section 8(a)(5) and (1) of the Act in
that Respondent on and after April 11, 1966, refused to
bargain with Tool and Die Craftsmen, National Federation
of Independent Unions, herein called the Union, when the
Union was the exclusive majority representative of the
employees in an appropriate unit . It is further alleged that
on or about July 25, 1966, Respondent, without prior
consultation with the Union, unilaterally altered health
and welfare benefits of the employees within the
appropriate unit . Respondent's answer admitted that it
had refused to meet and bargain with the Union and that it
had unilaterally altered the health and welfare plan but
defended on the ground that it was not under any legal
obligation to meet and bargain with the Union or consult
with it concerning changes in its employees' health and
welfare benefits.
Hollis J. Whitmer, Esq., sought to intervene in these
proceedings on behalf of six employees.' The attorney
stated that the purpose of the intervention was to forestall
issuance of a bargaining order without affording the
employees opportunity to express their desires in an
election. He conceded that this was in essence
Respondent's contention and that the employees could be
called as witnesses. The motion was denied, as there is no
provision in the Act for individual employees to intervene
as parties under these circumstances.2
Upon the entire record3 in the case, the briefs of the
parties, and from observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, with its place of
business at San Leandro, California, is, and at all times
material herein has been, engaged in the business of
manufacturing machine parts. During the year preceding
the issuance of the complaint, Respondent sold products
valued in excess of $50,000 to certain named customers
located in California, who in turn annually sell and ship
goods directly to points outside California in an amount
valued in excess of $50,000. Respondent admitted and I
find that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and I further find that it
would effectuate the policies of the Act to assert
jurisdiction herein.
' Burt Schantz , Alfred Fowler, Alfred Fowler, Jr , Jack
Marshall, Don Keller , and Douglas Hachuck.
2 Cf. Carpentena Lemon Association , 112 NLRB 121
9 The General Counsel' s unopposed motion to correct the
record, filed with his brief, is hereby granted I herewith further
correct the record as follows- p 31, 1. 12, strike " invent
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer, as amended,
admitted, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
something," substitute , "introduce some evidence"; p 48, 1. 2,
strike "competent to represent me," substitute "competently
represented by the General Counsel."
' G C. Exh 19.
' G C. Exh. 3.
6 G.C. Exh. 4.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the latter part of 1961 or early in 1962, Larry
Henderson and Rufus Goodson commenced operations of
a specialty tool and die job shop under the name of Manor
Research Inc., Respondent herein. Henderson was the
president of the Union in 1959 and 1960. During his term
he had appointed Philip Weir, the current business
representative of the Union, as chief union steward of
Friden, one of the larger concerns whose employees are
represented by the Union. Goodson was a member of the
executive board of the Union from 1955 to 1961 and had
been the Union's chief steward at Friden for many years.
Respondent, without entering into an agreement with the
Union, initially employed approximately five hourly
employees who were members of the Union. Respondent's
employees at that time were carried on an individual basis
through the union office for the purpose of participation in
the Union's health and welfare plan. The insurer of this
plan, Hartford Insurance Company, notified the Union,
sometime prior to March 23, 1962, that it would not insure
these employees after April 3, 1962, as they were not
employees of the Union, and that insurance would be
continued only if the Union obtained a signed agreement
with their Employer prior to April 3, 1962.
On March 23, 1962, Weir addressed a letter to the
Respondent detailing the above and expressed a desire
that the Union would like to have Respondent's employees
continue in the group health and welfare plan.4
On March 29, 1962, in view of the foregoing,
Respondent and the Union executed an agreement
whereby the Respondent recognized the Union as the
bargaining agent for its employees and agreed to
participate in the Union's health and welfare plan until
April 1, 1963.
On January 24, 1966, Respondent entered into a further
agreement for an indefinite term to continue coverage of
its employees under the terms of the Union's health and
welfare plan.5
In July 1966, Respondent joined the California Metal
Trades Association, herein called CMTA , an organization
representing employers in dealing with labor
organizations. Thereafter, on July 25, 1966, Respondent
executed an agreement with the California Metal Trades
Association Trust which placed Respondent's employees
under this Trust with regard to group life, hospitalization,
surgical, medical, and dependent coverage.6
B. The Appropriate Unit
The General Counsel and Respondent stipulated and I
find that the following constitute the unit involved herein
and that it is a unit appropriate for collective bargaining:
MANOR RESEARCH INC. 911
All tool and die makers, tool and die machinists,
apprentices and helpers, including leadmen or
working foremen, employed by Respondent at its San
Leandro, California, plant, excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
C. The Union's Majority and Refusal to Bargain
Prior to Respondent's execution of the agreement with
CMTA Trust, the Union, on April 11, 1966, requested that
Respondent negotiate a written agreement with regard to
wages, hours, and working conditions. The request
included a claim that the majority of Respondent's
employees in the appropriate unit were members of the
Union and had designated the Union as their collective-
bargaining representative.7
It is clear that the Union's claim of majority status on
April 14, 1966, the date Respondent received the demand,
was grounded on fact. As of that date, there were 15
employees in the appropriate unite and 12 employees had
paid these dues through March 1966.
On April 14, 1966, John B. Richards, an official of the
CMTA, answered the Union's letter of April 11, 1966,
stating that the CMTA represented the Respondent and
suggested an election to be conducted by the National
Labor Relations Board to which Respondent would
consent.9 Weir called Richards on the telephone about
April 15, 1966, and told Richards that there was no point in
having an election as all the men were members of the
Union. Richards called Weir back later the same day and
said that he had checked with the Respondent and that it
insisted on an election. Weir then stated to Richards that
the Union had an oral agreement with Respondent, that it
had participated in the Union's programs and had met all
the terms and conditions of its master contract. On the
same day, Weir wrote a letter to Richards10 in which he
stated that the Union was prepared to submit a list of
Respondent's employees who were full dues-paying
members of the Union." Subsequently, there were further
contracts between Weir and the Respondent and
Respondent's attorney, none of which resolved the issue.
Respondent maintained its position that it desired an
election and the Union insisted that an election was
unnecessary. Neither the Respondent nor the Union filed a
petition for an election.
On April 15, 1966, two employees, Darrell Oliver and
George Parker, were terminated. On May 2, 1966, the
Union filed a charge with the Board's Regional Office in
which it alleged the discharges were unfair labor practices
and that Respondent had refused to bargain with the
Union in violation of the Act. 12On July 11, 1966, the Union
withdrew this charge and the Regional Director approved
the withdrawal request on July 12, 1966.13 I draw no
inference with regard to the merits of the charge.
However , the filing of the charge and the withdrawal, as
will appear , infra, tend to discredit certain portions of
Weir 's testimony.
D. The Oral Agreement(s) 1962 to 1966
Weir, the chief witness14 in this case, testified that
Respondent at various times from 1962 to 1966 orally
agreed to abide by the terms and conditions of the master
agreement. In making this contention, Weir was prone to
exaggerate, contradict previous statements, and elaborate
on his testimony in an attempt to put the Union's position
in a more favorable light. I found Weir's testimony,
because of his demeanor and the above-described
deficiencies, to be unreliable. Accordingly, I have
discredited significant aspects of his testimony. Initially,
he testified that he had arrived at an oral agreement with
Respondent to abide by the terms of the master agreement
prior to the execution of the recognition agreement of
March 29, 1962. He later changed his testimony and
testified that it was subsequent to the recognition
agreement. He testified, at first, that he had made oral
agreements with the Respondent on one or two occasions.
He later expanded his testimony that such agreements
were made on three or four occasions.' 5
Quite significant is Weir's testimony concerning events
in 1964 when Weir requested the Respondent to enter into
a signed agreement similar to the master contract. He
testified that the wages and working conditions in
Respondent's plant were equal or better than the master
agreement except that Respondent paid time and a half for
overtime while the master contract called for double time
for overtime. He acknowledged that the big problem was
overtime pay and that was the prime reason no written
agreement had been signed from 1962 to 1964. In testifying
concerning the time, in 1964, when Weir requested
Respondent to enter into a signed agreement, he was
asked if he went into the shop and presented it to the
employees. At first he deined it and after being pressed, he
testified that he had a meeting of the employees, on the
demand of Respondent; the men voted on the question;
one man was on vacation; and the other employees voted
four in favor and four against imposing the overtime
provisions on Respondent. Weir therefore responded,
"Just keep the thing the way it is." As a result, no further
attempt was made to secure a written agreement. It seems
rather obvious that Weir would not enter into an
agreement with Respondent calling for overtime pay below
that in the master agreement, and clearly was unable to
secure a majority of employees to support an agreement
calling for overtime in accordance with the master
agreement. As a result, the Respondent's plant continued
to operate without a contract.
Further illustrative of Weir's testimony is the following:
' G.C. Exh 13.
8 G.C Exh 12.
° G C Exh. 14.
°GC.Exh 15
" Respondent , in part, reties upon a contention that its
employees continued their membership in the Union in order to
participate in the health and welfare benefits and that they did not
intend that their membership extend to a designation of the Union
as the bargaining agent for wages, hours, and working conditions
Even though the evidence gives some support to such an
assumption , I find that the Union had been designated as the
employees ' collective - bargaining representative for all purposes
To secure certain benefits is the very reason employees join a
labor organization . The signed membership cards admitted into
evidence (G.C Exhs 6- 11) contain the statement, "I .. hereby
authorize you to act as my representative for collective
bargaining." No clearer statement seems possible, and no
conditions , limitations , or reservations appear
11 G C. Exh 17A.
13 G C. Exh. 17B.
14 Weir and Nielson, called by the General Counsel, were the
only witnesses in the case Respondent rested at the conclusion of
the General Counsel's case without calling any witnesses.
's I do not credit Weir's testimony in this regard
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You told the employees you were, going to
continue with your oral arrangement, then?
A. Right. We continued.
Q. And keep overtime status as it had been?
A. Right. Everything stayed the way it was. No
change. Except they got the increased benefits from
the area.
Q. Exactly?
A. Right.
Q. Had they done that over the years? Had they
gotten exactly the same increase?
A. They paid more money. That was the
agreement.
TRIAL EXAMINER : Never mind. He's asked you a
question. He's asked you, exactly did they get the
same increases.
THE WITNESS: I would say yes.
TRIAL EXAMINER : Your answer?
THE WITNESS: Yes. Damn it !
The above demonstrates that Weir voluntarily
elaborated his answer to a question to the effect that the
employees got increased benefits in accordance with the
area (master agreement ) and when pressed sought refuge
in evasion and generalities, finally losing his temper.
Weir also testified that he knew that Respondent was
living up to his oral agreement, to abide by the master
agreement , because no grievances were filed.
Nevertheless, when Parker and Oliver were discharged on
April 15, 1966, he did not pursue the terms of the master
agreement for the resolution of the grievance. No
grievance, in fact, was filed by the employees but a charge
with the NLRB was filed concerning their discharge.
Appraising Weir's testimony as a whole, I find that there
was no genuine oral agreement between the Respondent
and the Union at any time. Respondent, it was clear, was
given exemption from entrance into a written agreement
because it was a new business and the owners were former
union officials. However, Respondent did not pay the
double time for overtime while at the same time wages and
other working conditions were equal to or better than the
master agreement and were maintained voluntarily by
Respondent rather than because of any oral agreement
with the Union.16 Weir's testimony is further suspect by
his continued insistence that "all" Respondent's
employees were union members, in the face of the General
Counsel's record admission that Respondent's employees,
Van Ryswyk and Fowler, never became union members.
E. The Alleged Unfair Labor Practice of July 25,1966
On July 25, 1966, as recited above, Respondent
executed an agreement with the CMTA Trust by which
Respondent's employees were placed under the health
and welfare benefits of the CMTA, as of August 1, 1966.
Presumably contributions and payments by and in behalf
of Respondent's employees to the Union's health and
welfare benefits ceased on that date. The General Counsel
i" Excluding the health and welfare plan, which was the subject
of a written agreement
11 Keller, Marshall, Fowler, Jr , and Schantz Two of the
employees never had become members, Fowler, Sr , and Cooper
i" One of those in whose behalf intervention was sought,
Douglas Kachuck, paid dues through October 1966
i" G C Exh 1-h
20 Despite this assumption, the General Counsel in his brief
argues that the Trial Examiner should apply the standard of proof
that the Board applies to an 8 ( a)(5) case where there has been a
preexisting bargaining relationship and the respondent employer
alleges that this unilateral act on the part of Respondent
constitutes a refusal to bargain within the meaning of
Section 8(a)(5) and (1) in that it unilaterally changed the
benefits of Respondent's employees at a time when the
Union represented a majority and had requested
Respondent to engage in collective bargaining.
In computing the majority status of the Union, the
General Counsel attempted to show that Alfred E. Fowler
was a supervisor within the meaning of the Act and should,
therefore, be excluded from the numerical count of the
appropriate unit. John F. Nielson was called by the
General Counsel to testify on this aspect. His testimony,
which I credit, established that Fowler neither exercised
nor possessed any of the statutory indicia denoting
supervisory status within the meaning of the Act.
Accordingly, I find that Fowler, at most, is a leadman or
working foreman and is not a supervisor within the
meaning of the Act. He, therefore, should be included in
the numerical count of the unit.
General Counsel contends that the Union represented a
majority in the appropriate unit at all times material herein
and continued to do so on July 25, 1966, when Respondent
unilaterally changed the health and welfare plan. I agree.
Examination and reconciliation of General Counsel's
Exhibits 5 and 12 shows that of the 12 employees on the
Respondent's payroll as of July 25, 1966, 10 were members
of the Union. It is true that four of these members" had
not paid dues after May 1, 1966. However, there is no
evidence that they had ever withdrawn from the Union or
were suspended by the Union. The attempted intervention
in their behalf cannot be considered a withdrawal from the
Union.' 8 Moreover, the earliest notice of their intervention
is dated December 5, 1966,18 which is some months after
July 25, 1966. Finally, Respondent, itself, concedes the
Union's majority status at all times material. On page 9 of
the brief filed by counsel for the Respondent, the following
statement is made:
Respondent is not contending that less than a
majority of the employees in the proposed bargaining
unit belonged to the Union. General Counsel Exhibit 5
clearly shows that a majority have been dues-paying
members at all times material to the present
controversy. Moreover, the application for
membership cards, General Counsel Exhibits 6
through 11, authorizes the Union to act as the
applicant's representative for collective bargaining.
F. Analysis and Concluding Findings
General Counsel contends that the Respondent
withdrew recognition of the Union in April 1966, thus
violating Section 8(a)(5) and (1) of the Act. He further
contends that, assuming arguendo, the Union did not
possess the status of an incumbent union on April 14,
1966, Respondent, nevertheless, violated Section 8(a)(5)
and (1) by refusing to bargain with it because there was no
good-faith doubt of the Union's majority status.20
is seeking to overcome a rebuttable presumption of continuing
majority status arising from a prior certification or contract This
is evident from the General Counsel' s reliance on Celanese
Corporation of America, 95 NLRB 664, and Laystrom
Manufacturing Co , 151 NLRB 1482 Unlike these cases, I view
the present case as one not involving a prior bargaining
relationship which the employer would disrupt , but rather a new
relationship which the Union is seeking to establish and hence the
standard of proof related to this issue is different H & W
Construction Company, Inc, 161 NLRB 852
MANOR RESEARCH INC.
It is clear from the evidence, described above, that
Respondent in 1962 executed a recognition agreement.
This agreement did not lead to a written or even oral
collective-bargaining agreement between the parties. It
resulted merely in an agreement limited to participation of
Respondent's employees in the Union's health and welfare
plan. There is no question that the Union continued to
represent a majority of the employees in the unit at all
times thereafter and at all times material herein. However,
the Union did not see fit, for reasons of its own, to
negotiate a written contract with Respondent. Moreover,
the Union quickly abandoned the single attempt it made in
1964 to secure a written agreement when it failed to secure
the support of the majority of the employees for a crucial
provision concerning overtime pay. Under the foregoing
circumstances, I find that the recognition agreement of
1962 was stale in April 1966 and of no force and effect.
Accordingly, in April 1966 when the Union demanded a
negotiation meeting, it was, in effect, seeking recognition
anew.
In this posture, the question presented is whether
Respondent could legally refuse to meet and bargain with
the Union absent an election conducted by the Board.
Respondent concedes and I have found above that on
April 14, 1966, when Respondent received the Union's
demand to bargain, there was no question of the Union's
majority status. Respondent's contention, as I view it, may
be simply summarized that even though the Union enjoyed
majority status, Respondent, under all the relevant
circumstances, had a serious doubt whether the Union
could win an election.
Respondent contends that it has not engaged in any
other unfair labor practices, and has not displayed any
animosity toward union organization. It asserts that
Respondent's refusal to enter into bargaining negotiations
was not for the purpose of gaining time to undermine the
Union. Essentially, Respondent is insisting upon an
election to test the Union's majority status at a time when
it concedes the Union's majority. Board law is contrary to
Respondent's position. A Board election is conducted in
order to determine a question concerning representation.
-Here, there is no question concerning representation, only
a question, in Respondent's mind, whether or not the
Union could secure a majority of its employees to support
consumation of a contract embodying the terms of the
master agreement. As described above, the Union in 1964
was unsuccessful in securing the support of the majority of
Respondent's employees for a provision for payment of
double time for overtime. Therefore, it is apparent that
Respondent believed that in April 1966 its employees
would reject the Union in an election and enable it to
continue operations without being subjected to all of the
terms and conditions of the master agreement. But this is
a matter for negotiation; it has no relevancy in the
determination of the question concerning representation.
The Board declared inAaron Bros. ,2 i that an employer's
right to a Board election is not absolute 2L and that an
2' Aaron Brothers Company of California, 158 NLRB 1077
22 Citing United Mine Workers of America v Arkansas Oak
Flooring Co, 351 U.S. 62, 74-75; N.L R.B. v . Tnmfit of
California , Inc., 211 F 2d 206, 209 (C A 9); N L R.B v Elliot-
Williams Co ., Inc., 345 F 2d 460 (C A 7)
23 Citing Joy Silk Mills, Inc, 85 NLRB 1263, 1264, enfd 185
F 2d 732 (C.A.D C ), cert denied 341 U.S. 914.
24 134 NLRB 709, enfd 308 F.2d 687 (C A 9); and Jem Mfg,
Inc., 156 NLRB 643.
913
employer may refuse to bargain and insist upon an election
as proof of a union's majority status unless its refusal and
insistence were not made with a good-faith doubt of the
union's majority.23 Thus, it is clear that where the
employer challenges a union's majority, it becomes
incumbent upon the General Counsel to prove that the
employer's insistence upon an election was not predicated
on a good-faith doubt of the Union's majority, but rather
than an employer's refusal to recognize and bargain with a
union was advanced in bad faith. But here, the Employer
did not question and does not now question the Union's
majority status in April 1966. Under these circumstances,
nothing remains for the General Counsel to prove. The
General Counsel need not go beyond this showing to prove
independent and other conduct to show that Respondent
has rejected the collective-bargaining principle or seeks to
gain time within which to undermine the Union to
dissipate its majority. Like in Snow & Sons,24 the
Respondent's refusal to recognize and bargain with the
Union, at a time when it concedes the Union's majority
status, can only be construed as a rejection of the very
foundation upon which the collective-bargaining principle
is based; namely, majority status. I so find.25
I conclude, therefore, that Respondent was in violation
of 8(a)(5) and (1) when it refused the Union's demand on
April 14 to meet and negotiate.
In view of the unfair labor practice found above, it is
clear that any loss of the Union's majority status after
April 14, 1966, must be attributed to the Employer's
unlawful conduct. However, as I have found above and it is
conceded by the Respondent, the Union continued to
enjoy majority status on July 25, 1966, when Respondent
changed the coverage of its employees' health and welfare
plan. As Respondent was on that date under a duty to
bargain with the Union concerning wages, hours, and
working conditions, and as it did not consult with the
Union prior to instituting the change, but acted
unilaterally, Respondent further violated Section 8(a)(5) of
the Act. Clearly, the action of July 25, 1966, can only be
construed, under all the circumstances, to be conduct
tending to coerce the employees with regard to their union
designation and tending to undermine the Union's right to
represent the employees and to bargain collectively in
behalf of Respondent's employees in the appropriate unit
and thereby constitutes an independent violation of
Section 8(a)(1).
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Manor Research Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Tool and Die Craftsmen, National Federation of
Independent Unions, is a labor organization within the
meaning of Section 2(5) of the Act.
25 Cf. Bernard S. Happach, d/b/a 14th Street Market v.
N L R.B., 151 NLRB 560, enfd. 353 F.2d 629, where the Seventh
Circuit Court stated, "Since Happach never expressed any doubt
of the majority status of the union , and since the Board found that
the union in fact did represent a majority of Happach's grocery
clerks, it is clear that Happach's refusal to recognize and bargain
with the union was not motivated by a good faith doubt as to its
majrony status and that Happach violated Section 8(a)(5) of the
Act "
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All tool and die makers, tool and die machinists,
apprentices and helpers, including leadmen or
working foremen, employed by Respondent at its San
Leandro, California, plant, excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
4. The Union at all times material has been and is the
exclusive representative of the employees in the aforesaid
bargaining unit within the meaning of Section 9(a) of the
Act.
5. By refusing on and since April 14, 1966, to bargain
collectively with the Union as the exclusive representative
of the employees in the aforesaid bargaining unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By unilaterally changing the plan under which the
employees were covered for health and welfare on July 25,
1966, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. By interfering with, restraining , and coercing
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.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship 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.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, it will be recommended
that it cease and desist therefrom and take certain
affirmative action, including the posting of appropriate
notice in order to effectuate the policies of the Act.
Having found that the Union was the duly designated
representative of Respondent's employees in the
appropriate unit on and after April 14, 1966, and on
July 25, 1966, and that Respondent, by engaging in the
above-described unfair labor practices, disclosed a
disposition to reject the collective-bargaining principle
inherent in the Act, it is found that it is necessary to
restore the status quo and to issue an order requiring
Respondent to bargain collectively with the Union for
Respondent's employees in the appropriate unit found
herein. It will therefore be recommended that Respondent
reinstate the employees' health and welfare benefits in the
plan in existence prior to July 25, 1966, and to require that
Respondent bargain with the Union as the exclusive
bargaining representative of its employees in the indicated
appropriate unit and, if an agreement is reached, embody
such agreement in a signed contract.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of employment, or
other conditions of employment, with the Union as the
exclusive representative of employees in the following
appropriate unit:
All tool and die makers, tool and die machinists,
apprentices and helpers, including leadmen or
working foremen, employed by Respondent at its San
Leandro, California, plant , excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their right to join or assist a union , to bargain collectively
with representatives of their own choosing, and to engage
in other concerted activities for their mutual aid or
protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Reinstate the health and welfare plan in effect for
the employees in the above-described unit prior to July 25,
1966.
(b) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all
employees in the appropriate unit found above, and
embody in a signed agreement any understanding
reached.
(c) Post at its plant in San Leandro, California, copies of
the attached notice marked "Appendix."26 Copies of said
notice, to be furnished by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative , shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where 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.
(d) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.27
26 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
P7 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with the
Union concerning wages, hours, and working
conditions.
MANOR RESEARCH INC.
WE WILL NOT make changes in our employees'
health and welfare plan without prior notice,
consultation , and collective bargaining with the
Union.
WE WILL reinstate the plan for employee health and
welfare benefits which was in effect prior to July 25,
1966.
WE WILL, upon request, bargain collectively with
Tool and Die Craftsmen, National Federation of
Independent Unions, as the exclusive representative
of the employees in the unit described below with
respect to rates of pay, hours of employment, and
other conditions of employment and, if an under-
standing is reached , embody such understanding in
a signed agreement. The bargaining unit is:
All tool and die makers, tool and die machinists,
apprentices and helpers , including leadmen or
working foremen , employed by Respondent in its
San Leandro, California, plant , excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights to self-organization , to join or
assist Tool and Die Craftsmen, National Federation of
Independent Unions, or any other labor organization,
to bargain collectively through representatives of
their own choosing , and to engage in other concerted
915
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activities, except to the extent that such
right may be affected by any agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All of our employees are free to become or remain, or
refrain from becoming or remaining , members of Tool and
Die Craftsmen, National Federation of Independent
Unions.
MANOR RESEARCH INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 13050 Federal
Building , 450 Golden Gate Ave., Box 36047, San
Francisco, California 94102, Telephone 556-3197.