Nelson Maufacturing Co.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 883 (N.L.R.B. 1962)

NELSON MANUFACTURING COMPANY 883
gaining or other mutual aid or protection , or to refrain from any such activities,
except to the extent that the right to refrain is limited by the lawful enforce-
ment of a lawful union -security requirement.
WE WILL offer George W. Frangos and Calvin Le Cocq their former or sub-
stantially equivalent jobs, without prejudice to seniority or other employment
rights and privileges , and pay each of them for any loss suffered because of our
discrimination against him.
APPLIED RESEARCH, INC.,
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.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York, New York , Telephone Number , Plaza 1-5500, if they have any
question concerning this notice or compliance with its provisions.
Nelson Manufacturing Company and International Union , Allied
Industrial Workers of America, AFL-CIO. Case No. 8-CA-
2569. September 25, 1960
DECISION AND ORDER
On April 9, 1962, Trial Examiner IV. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that Nelson
Manufacturing Company, herein called the Respondent, had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Intermediate Report. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a brief in
support thereof. The General Counsel and the Charging Party filed
no exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except as modified herein.
1. We agree with the Trial Examiner that the Respondent discrimi-
natorily suspended Gerald Meyer on October 17,1961. The suspension
was limited to 30 days and Meyer, at the time of the suspension, was
so informed. However, lie admittedly never returned to Respondent's
employ. The General Counsel has not established that Respondent
138 NLRB No. 107.
662353-63-vol. 13S-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not have allowed Meyer to return to work nor that Meyer stayed
away to protest either his own discriminatory suspension or the
Respondent's other unfair labor practices. Under these circumstances,
the Respondent's liability for backpay ends on the date Meyer should
have reported back to work and we shall not order the Respondent
to make a present offer of reinstatement to Meyer.'
2. We agree with the Trial Examiner that James Gerding, who
had been originally hired as a temporary employee, was promised
a permanent position by Superintendent Topp. Gerding's testimony
to this effect is substantially corrobated by Ronald Meyer who testified
that Topp told him that he intended to keep Gerding on as a permanent
employee. Moreover, even if Gerding were still a temporary employee
at the time of his discharge, his discharge in retaliation for the em-
ployees' "prounion" vote would be violative of Section 8 (a) (1) and
(3) and reinstatement of the discriminatee and backpay would be the
appropriate remedy.
3. Respondent contends that it is not required to recognize and
bargain with the Union 2 until after the Union is certified pursuant
to a Board-conducted election. Under all the circumstances of the
case, Respondent misconceives the duty to bargain required of it by
Section 8(a) (5) of the Act. The Board has long held that where
the refusal to recognize and bargain with a union is not motivated
by a good-faith doubt of the union's majority status, but rather by a
rejection of the collective-bargaining principle and a desire to gain
time within which to undermine the union, an employer will be
ordered to bargain with the union and is not entitled to an election
under Section 9(c) (1) (b) of the Act.'
On September 13, 1961, Jack Nelson,' after receiving a request to
recognize and bargain with the Union, ran his own election, purport-
edly to determine whether or not the Union did represent a majority of
his employees. Both before and after the election the Respondent,
and Nelson in particular, engaged in numerous acts proscribed by
Section 8 (a) (1) and (3), as set forth in the Intermediate Report.
The results of the election indicated that there were 14 employees
for the Union and 8 employees against the Union. On this date there
were 24, or at most 25, employees in the unit. Respondent at no time
i Cf. G . W. Emerson Lumber Company, 101 NLRB 1046, 1047.
2 International Union, Allied Industrial Workers of America , AFL-CIO, called herein
the Union
8 Galloway Manufacturing Corporation, 136 NLRB 405 ; Joy Silk Mills, Inc., 85 NLRB
1260 , 1264-1265
4 Nelson Manufacturing Company is a family corporation . Jack Nelson is the majority
stockholder . After the vote favorable to the Union on September 13, Nelson resigned as
general manager and was succeeded by his wife , Virginia Nelson . Nelson continued to be
around the premises after that date. In his address to employees before the September 13
election he took the position that he would never serve wih a company whose employees
were represented by a "national Union," a position which he reiterated on the witness
stand at the hearing.
NELSON MANUFACTURING COMPANY 885
questioned that this showing of 14 employees for the Union represented
a majority of its employees. Indeed, 5 minutes after the vote he dis-
charged James Gerding because "we" now have to operate as a "union
shop."
We find, in agreement with the Trial Examiner, that the Union
represented a majority of the employees in the bargaining unit on
September 13, 1961, and that Respondent's insistence upon a Board-
conducted election was not then, and is not now, motivated by a good-
faith doubt of this majority status but rather that Respondent acted
in rejection of the collective-bargaining principle and in order to gain
time within which to undermine the Union's support. Accordingly,
we find that Respondent has refused to bargain collectively within
the meaning of Section 8(a) (1) and (5) of the Act, as amended.
ORDER
Upon the basis of 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 Nelson Manu-
facturing Company , its officers , agents , successors , and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied In-
dustrial Workers of America, AFL-CIO, or in any other labor organ-
ization of its employees , by discriminating in regard to hire or tenure
of employment or any term or condition of employment , except to the
extent permitted under Section 8 (a) (3) of the Act.
(b) Interrogating employees concerning their membership in the
above-named Union, or any other labor organization , in a manner
constituting interference , restraint , or coercion , in violation of Section
8(a) (1) of the Act.
(c) Threatening employees with discharge or reprisals for engag-
ing in union activities.
(d) Refusing to bargain with International Union , Allied Indus-
trial Workers of America , AFL-CIO, as the exclusive bargaining
representative of its employees in the appropriate unit with respect
to rates of pay, wages , hours of employment, and other conditions
of employment including union security . The unit is :
All production and maintenance employees at the Employer's
Ottawa , Ohio, plant , excluding professional employees , draftsmen,
guards , supervisors , and office clericals as defined in the Act.
(e) In any other manner interfering with, restraining , or coercing
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to ef-
fectuate the policies of the Act :
(a) Offer to James Gerding immediate and full reinstatement to
his former or to a substantially equivalent position , without prejudice
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his seniority or other rights or privileges, and make him and Gerald
Meyer, Richard H. Alt, James Buddelmeyer, Harold Donaldson,
Elias Hernandez, Joseph W. Morman, Harold Potts, Norman E.
Schroeder, and Glenn Seyer whole for any loss of earnings they may
have suffered as a result of discrimination against them.5
(b) Upon request, bargain collectively with International Union,
Allied Industrial Workers of America, AFL-CIO, as the exclusive
representative of its employees in the appropriate unit described above
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its place of business in Ottawa, Ohio, copies of the notice
attached marked "Appendix." 6 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representative, be posted by it im-
mediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
5 Such loss of pay shall be computed on the basis of separate calendar quarters in
accordance with the policy enunciated in F. W. Woolworth Company, 90 NLRB 289, and
shall include an allowance for interest to be computed in the manner set forth in lade
Plumbing & Heatting Co., 138 NLRB 716. Member Rodgers, for the reasons set forth in
his dissenting opinion in the latter-mentioned case, would not award interest.
0 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in or activity in behalf
of International Union, Allied Industrial Workers of America,
AFL-CIO, or any other labor organization of our employees, by
discriminating in any manner in regard to hire or tenure of
NELSON MANUFACTURING COMPANY 887
employment or any term or condition thereof, except to the
extent permitted under Section 8(a) (3) of the Act.
WE wiLL offer James Gerding immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of our dis-
crimination against him.
WE WILL make whole Gerald Meyer, Richard H. Alt, James
Buddelmeyer, Harold Donaldson, Elias Hernandez, Joseph W.
Morman, Harold Potts, Norman E. Schroeder, and Glenn Seyer
for any loss of pay suffered as a result of our discrimination
against them.
WE WILL NOT interrogate our employees concerning their union
activities.
WE WILL NOT threaten employees with discharge or reprisals
for engaging in union activity.
WE WILL, upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining representa-
tive of all employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate unit is:
All production and maintenance employees at our Ottawa,
Ohio plant, excluding professional employees, draftsmen,
guards, supervisors, and office clericals as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any labor organization, to join or
assist the above-named Union, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted ac-
tivities 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 an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the
National Labor Relations Act.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named or any other
labor organization.
NELSON MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland 15, Ohio,
Telephone Number, Main 1-4465, if they have any question concern-
ing this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
W. Gerard Ryan at a hearing in Ottawa, Ohio, on 6 hearing days, December 5
through 12, 1961, inclusive. The issues presented by the pleadings were whether
Nelson Manufacturing Company, herein referred to as the Respondent, violated
Section 8(a) (1), (3), and (5) of the Act.'
Upon the entire record, and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find that the Respondent is a
Delaware corporation, with office, plant, and principal place of business herein main-
tained in Ottawa, Ohio, where it is engaged in the manufacture of various types of
trailers. In the course and conduct of its business, Respondent annually ships,
from its Ottawa, Ohio, plant, finished products of a value in excess of $100,000
directly to points outside the State of Ohio. Respondent annually receives purchased
materials at its Ottawa, Ohio, plant of a value in excess of $50,000 directly from
sources located outside the State of Ohio. 1 find the Respondent is engaged in
Commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged , the answer admitted , and I find that International Union,
Allied Industrial Workers of America , AFL-CIO, herein referred to as the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR, LABOR PRACTICES
On August 28, 1961, Jack M. Nelson , president and general manager of the
Respondent, summoned Robert J. Topp, the plant superintendent, to Nelson's
residence to discuss union activity among the employees at the plant. Nelson
directed Topp to hold a meeting of the employees the next day at the plant to
conduct the vote to see if the employees would be willing to reserve final action
and affiliation with the Union until Nelson returned to the plant a few weeks later
or until the "first frost" when Nelson's allergy to ragweed would terminate.
On August 29, 1961, Topp met first with the employees Harold Donaldson,
Gerald Meyer, and James Buddelmeyer and accused them of trying to organize
the Union in the plant and told them he knew that Harold Donaldson or Richard
Alt or both were the instigators. He further told them if the Union gets their foot
in the door Jack Nelson will close the shop and there will be no work "for you
fellows or the rest of us." Topp further told them that five employees were to
be laid off that day and the other two employees were Joseph Morman and Richard
Alt. Topp told them that he and Nelson had stayed up until midnight the night
before deciding who was for the Union and who was against the Union and the
' The original charge (later amended) was filed on September 25, 1961. The original
complaint (amended at the hearing) was dated October 30, 1961. The names of Lewis
Klass and William Cox on motion by the General Counsel were stricken from paragraph
numbered 9 of the complaint inasmuch as they were on authorized leaves of absence dur-
ing the period of time involved
NELSON MANUFACTURING COMPANY 889
reason why the above five employees were to be laid off was that if it came to a vote
with those five employees laid off it would swing the vote the Company's way as
they would not have the right to vote. About 12:35 in the afternoon , Topp met
again with the above employees and Richard Alt and Joe Morman were also
present. Topp told them substantially the same that he had told the three employees
earlier in the morning, that the shop would be closed if the Union was organized,
but if the employees wanted to form a shop union that would talk to Nelson to get
their differences ironed out, Nelson would go along with that. Topp also permitted
the five employees above named to go through the shop and talk to each man
individually to see whether they were interested in having a national union represent
them. Topp asked employee Richard Alt if he was the organizer of the Union and
Alt denied it. Topp asked the employees if they had received cards and Topp then
told them precisely the same as he had told the above-named three employees
earlier that day and also said they were going to lay them off as of that evening.
About 3:45 that same afternoon Topp called another meeting of all the employees
and after telling them that Nelson would close the shop if they had a national union
but that Nelson was willing to go along with a shop union, Topp suggested that
the employees vote on waiting until Jack Nelson could be with them at a later date
to discuss the problems for and against a national union or a shop union. A ballot
was then taken (after the employees had refused to vote by a show of hands) and
the result of the vote by written ballot was the employees were to hold off further
activities until Nelson could be present. At that time the meeting ended and as
Harold Donaldson was passing through the doorway be asked Topp if they were
still laid off as Topp had previously informed them earlier in the day. Topp then
replied, "No, you fellows can come back to work tomorrow, if you want to."
The foregoing facts are based upon uncontradicted testimony adduced by the
General Counsel in support of the 8(a)(1) allegations in the complaint. Superin-
tendent Topp did not testify in this proceeding.
The 8(a)(1) violations of the Act alleged in paragraph numbered 6 of the com-
plaint are not controverted. I accordingly find as alleged in the complaint that
in violation of Section 8(a)(1) of the Act the Respondent through its officers,
agents, representatives, and supervisors, more particularly, Robert J. Topp, plant
superintendent, from on or about August 29, 1961, and thereafter: (a) interrogated
its employees concerning their activities on behalf of, sympathies for, and member-
ship in the Union; (b) threatened its employees that Respondent's president, Jack
M. Nelson, would close its plant if they brought in a national union to represent
them; (c) requested its employees for form a shop committee, with which Respond-
ent would be willing to deal concerning their wages, hours, and working conditions
instead of supporting a national union with which Respondent would not negotiate;
(d) caused the poll to be taken among its employees regarding whether they would
be willing to suspend their activities in behalf of a national union for several weeks
pending the return to its plant of Respondent's president, Jack M. Nelson; (e) notified
employees Richard Alt, James Buddelmeyer, Harold Donaldson, Gerald Meyer, and
Joseph Morman on or about August 29, 1961, that they were laid off because of their
activities in behalf of the Union, an action that was rescinded by Respondent later
the same day immediately following an affirmative employee vote in the Respond-
ent-directed poll above referred to in (d).
On September 12, 1961, the Respondent received a letter dated September 11
from the Union requesting recognition as collective -bargaining representative for
the production and maintenance employees and requesting a meeting for the purpose
of negotiating a collective -bargaining agreement.
It was stipulated that paragraph numbered 11 of the complaint describes the
appropriate unit as follows:
All production and maintenance employees employed by the Respondent at
its Ottawa, Ohio, plant, but excluding all office clerical employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
I find that the plant superintendent is excluded from the unit by virtue of his
supervisory duties and the engineering draftsman, Bernard Wortkoetter, is also
excluded from the unit since the record shows he devotes from 90 to 95 percent
of his working time on the work of engineering drafting; that his compensation is
on a basis different from those production and maintenance employees in the plant;
and that he has supervision separate from that of the production and maintenance
employees. With the exclusion of the superintendent and the draftsman, there were
24 production and maintenance employees employed by the Respondent as of
September 12, 1961.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At no time subsequent to the receipt of the Union's letter on September 12 has
the Respondent ever questioned the majority status of the Union as the bargaining
representative for its production and maintenance employees; has never requested
the Union to furnish proof of its majority status; and has never expressed any doubt
concerning the Union's claim of majority representation. No response was ever
made by Respondent to the Union's demand for recognition dated September 11.
When the Union renewed its demand by letter dated October 24, the Respondent
replied on October 27 that it would recognize the Union only after the Union had
been certified by the National Labor Relations Board in accordance with the results
of a properly conducted election.
The facts are not controverted that on September 13, 1961, the Respondent laid
off employees and closed its plant until September 18; that James Gerding was dis-
charged on September 13; and that Gerald Meyer was again suspended or laid off
on October 17, 1961. Whether or not the Respondent acted from discriminatory
motives violative of the Act in such actions is at issue.
Jack M. Nelson, then president and general manager, testified that on Septem-
ber 13 he held a meeting of all employees in the plant lunchroom about 12:30 p.m.
Other employees who testified fixed the time at 11:30 a.m.
Nelson directed that the employees ballot on whether they wanted to be repre-
sented by the Union. He also voiced derogatory remarks about unions and union
representatives. He informed the employees before the balloting that if the Union
came in, employees would be laid off when work was slack instead of building
inventory as had been past practice, since that is the way union shops operated.
He also informed them he would not be associated with any company whose em-
ployees were represented by a national union.
The vote of the employees was 14 to 8 in favor of the Union.
Nelson testified that within 5 or 10 minutes thereafter he termniated James
Gerding's employment. He testified he advised Gerding that because of having to
operate a union shop, he could not have him in his employ?
A few minutes before quitting time, at 4 o'clock on September 13, Nelson posted
two notices, (1) that the plant would be closed until September 18 and (2) that
12 employees below a horizontal line drawn on the seniority list of employees were
thereupon laid off The asserted reason for the mass layoff of the employees was
lack of work. The record shows such a reason to be without any basis in fact. It
was stipulated that as of September 13, 1961, there were 2,122 hours of labor for
production and maintenance employees. The record shows there were approxi-
mately 17 production and maintenance employees available for the performance of
such work or approximately 125 hours of work for each employee which represented
more than 3 weeks' employment for each of those 17 employees.
When the plant resumed operations on September 19 (no work was performed
on September 18), 7 of the 12 employees who worked on that date, worked over-
time; 12 or 13 employees worked overtime on September 20; and on Saturday,
September 23 (not a normal workday), 15 employees, including a substantial num-
ber of employees laid off on September 13, worked overtime.
The asserted reason given by Nelson on September 13 for closing the plant until
September 18 was lack of adequate supervision.
It appears from the record that Superintendent Robert Topp was last in Respond-
ent's plant on September 8, 1961. There is no evidence in this record that plant
operations were not conducted normally and satisfactorily during the workdays of
September 11, 12, and 13.
On September 13, after the employees had demonstrated their 14 to 8 support of
the Union, there were several senior experienced employees of the Company in
the Company's plant and available as they had been on other occasions to fill the
breach occasioned by Superintendent Topp's absence. One of these was Ronald
Meyer, but he was not asked to take over in the absence of Superintendent Topp
although he had substituted for him during Topp's vacation period, both in 1961
and for a part of his vacation period in 1960. Another employee, Bernard Alt,
substituted for Topp during Topp's vacation in part during 1960. Bernard Alt also
was available on September 13 for assignment to substitute for Superintendent Topp,
2 James Gerding went to work for the Respondent on August 9, 19G1, through referral
by the Ohio State Employment Service. It is undisputed that he was hired as a temporary
employee for temporary work to transfer materials from the Company's plant to its pro-
posed new facilities at the edge of town Gerding worked only 1 week in that joh of
transferring materials and then from that time forward he was given the same job as
other production and maintenance workers, namely, welding and assembling trailers.
After 2 weeks of such work, Gerding had performed so well that Superintendent Topp
informed him he intended to keep him on as a regular employee.
NELSON MANUFACTURING COMPANY 891
but he was not asked by the Respondent to do so. When Bernard Alt was offered
the job as plant superintendent on November 1, he accepted it. On September 13,
another employee was available to substitute for Superintendent Topp and he was
the engineering draftsman, Bernard Wortkoetter, who only 5 days later was requested
to accept the job of plant superintendent, did accept the job, and continued on the
job through October 31, following which, as above stated, he was replaced by
Bernard Alt. Nothing in the record indicates that Bernard Wortkoetter who was
available on September 13 would not have accepted those responsibilities on that
day as readily as he accepted them only 5 days later.
I agree entirely with General Counsel's argument, and so find, that, considering
the facts in their totality, it is persuasively clear that Respondent seized upon Topp's
absence as an excuse to close the plant, ignoring the possibility of replacements, and
engaged in a mass layoff of employees to stun the employees into a realization of
what the result of support of a national union would amount to and to discourage
their affiliation with such a union, in violation of Section 8(a)(3) of the Act.
The complaint was amended to aver that the Respondent terminated the employ-
ment of Gerald Meyer on or about October 17, 1961, and has since refused to recall
him to his former or substantially equivalent employment. The amended answer
pleads "not guilty" and avers that Meyer was given a disciplinary layoff for a
deliberate slowdown in his work and he was recalled to work on November 28,
1961, when his probationary period was up and Meyer has not reported for work.
It will be borne in mind that Meyer had incurred the Respondent's animosity
through being one of the union adherents, had been questioned by Superintendent
Robert Topp on August 29, and had been told by Topp on that date that he was laid
off for the asserted reason that it was necessary to swing the vote to the Company,
if it ever came to a vote.
Meyer had a record of satisfactory service for more than 3 years prior to the
advent of the union organizational activities in August 1961. Meyer was given a
written warning notice on September 25, 1961, and a similar warning notice was
given to employee Virgil Ellerbrock at the same time. The testimony without con-
tradiction and admitted by the Respondent establishes that there had never been
any company practice to issue written warning notices to empolyees prior to this
time. John Nelson (son of Jack M. Nelson) testified that through his 11 years with
the Company, he knew of no other instance where written notice had been issued.
The warning notices referred to horseplay indulged in by Meyer and Ellerbrock,
but no one had ever explained to either of them what the alleged horseplay had been.
The notification to Meyer advised him that this was his first warning. It stated
he had been observed in horseplay on the job, that he would receive one more
warning, and the third offense would call for dismissal. On October 17, Meyer
was advised he would get two notices at once in the mail. But he never received
any further notice by mail or otherwise.
Employee Jerome Averesch presently employed by Respondent and who was
subpenaed by the General Counsel, testified that Virginia Nelson, who had suc-
ceeded Jack M. Nelson as general manager on or about October 1, made the threat
within his hearing that she intended to "get" Gerald Meyer. Virginia Nelson denied
making this threat. I credit the testimony of Jerome Averesch who impressed me
as a straightforward, truthful witness who had no discernible interest in the out-
come of this proceeding.
On October 11, approximately 2 weeks after the written notice of September 25
to Meyer, Meyer was given an assignment to produce certain bolster plates and
the record shows that he welded certain bolster plates and other parts and the
total time for those operations was approximately 5 hours.
Immediately following Meyer's work on the bolster plates and other parts, em-
ployee Blankemeyer, a former group leader of Respondent who had been assigned
supervision over welding employees, was given the assignment of making a set
of bolster plates, and he reported on his time record that he finished a set of bolster
plates in approximately one-half the time that had been required by Meyer. It
should be noted that the work performed by Meyer of making the bolster plates
was more than was performed by Blankemeyer which circumstance is complicated
by the fact that there was no showing of how many additional pins or other parts
were involved. Therefore, it cannot be established with any reasonable certainty
how much time should be allocated to the comparison of Meyer's and Blankemeyer's
work.
Superintendent Wortkoetter who was superintendent on October 11, testified that
he was unaware that Meyer had done any extra work beyond that which he had
assigned to Blankemeyer. When Mever conducted Wortkoetter to a part of the
plant where those extra parts were available and showed him the extra work he had
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done, Wortkoetter returned to the conference called by Virginia Nelson and acknowl-
edged that he had not been aware of this additional work.
Meyer credibly explained why he required more time than Blankemeyer in that
he produced other parts in addition to bolster plates; that his machine was not func-
tioning properly; and that approximately 30 minutes had been used to locate cer-
tain needed materials.
With respect to the importance of the bolster plates incident, and it should be
noted that this is in support of the reason stated in Respondent's amended answer
(engaging in a deliberate slowdown) why Meyer was given a disciplinary layoff and
not a termination of his employment, it is significant to consider why the Respondent
waited until October 17 to lay him off when the "slowdown," if any, occurred on
October 11, particularly when he had never been given any warning notice on that.
On October 17, 1961, Meyer had been assigned the job of affixing and installing
a wheel on a trailer being prepared for delivery to a customer. Virginia Nelson
testified that she could see from Meyer's actions that the lugs were not tight so she
mentioned to the driver not to drive away until the lugs were checked. Bernard
Wortkoetter, who on October 17 was shop foreman, testified that the driver pointed
out Meyer to him as the one who had put on the lugs and Wortkoetter summoned
Meyer and had him tighten the lugs. Following that, Virginia Nelson called a con-
ference of Wortkoetter, John Chamberlin, and Darrel Parker, because, according
to her testimony, she decided this action by Meyer needed immediate attention.
The committee thus called was to pass on the quality of Meyer's work and in addi-
tion to the lug incident, they were also advised of the bolster plates situation on
October 11. The committee was to decide whether Meyer's employment was to
be terminated. While Virginia Nelson withdrew apart from their deliberations she
did return to them once or twice to remark that if they wanted to carry Meyer "on
their backs" such was up to them. The committee voted 2 to 1 for discharge, the
1 vote cast was to give Meyer another chance. Since the decision to discharge was
not unanimous Virginia Nelson gave him a suspension of 30 days.
The question presented is whether the asserted reason for Meyer's alleged suspen-
sion on October 17, namely, a deliberate slowdown on his part on October 11, was
the real reason for his layoff or discharge on October 17, or was it nothing more
than sham and pretense to cloak unlawful discrimination in his tenure of employ-
mentto discourage membership in a union violative of Section 8(a)(3) of the Act.
Ronald Meyer testified that it was common routine practice for checks to be
made for such items as loose wheel lugs before equipment is delivered to a customer.
There is no evidence in the record that any employee had ever before been dis-
ciplined for failure to secure lugs on trailer wheels; and the testimony of Ronald
Meyer is that during the year previous when he road-tested trailers approximately
12 times, lugs were loose and had to be retightened. Although that was brought to
the attention of supervision no one had ever been disciplined. The General Counsel
points out that it is significant to observe that as of October 17, of those five em-
ployees who had been told by Superintendent Topp that they were to be laid off
August 29 in order to swing the vote in favor of the Company, Buddelmeyer,
Richard Alt, and Harold Donaldson were no longer in the Company's employ and
were working elsewhere; and that only Gerald Meyer and Joseph Morman still re-
mained in the employ of the Respondent on October 17.
Accordingly, in the light of the Respondent's demonstrated intensive union animus,
I conclude and find that the asserted reasons and attempted justification of Respond-
ent's action in suspending Meyer on October 17 were but pretexts and that the action
in fact was taken in reprisal for his activities in behalf of the Union.
With respect to the Respondent's offer of reinstatement to Gerald Meyer I find
this offer under all the circumstances did not constitute a bona fide offer of reinstate-
ment inasmuch as Respondent indicated in no way that it had altered its policy
toward union representation
On the basis of the entire record, I conclude and find that the amended complaint
has been sustained by overwhelming credible evidence and that the Respondent has
failed and refused to bargain in good faith with the Union in violation of Section
8(a)(5) of the Act; and that the Respondent violated Section 8(a)(3) of the Act
by discharging James Gerding and laying off employees and closing its plant on
September 13, 1961, and suspending Gerald Meyer again on October 17 for dis-
criminatory motives, namely, in reprisal for the employees selecting the Union as
their collective-bargaining representative and in order to gain time to undermine the
Union and to dissipate its majority. I have found supra the independent violations
of Section 8(a)(1) of the Act.
In finding that Respondent violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union, I specifically find that Respondent's refusal
NELSON MANUFACTURING COMPANY 893
to recognize the Union was motivated by bad faith as evidenced by its violations of
Section 8 ( a)(1) and the discharges and layoffs in violation of Section 8(a)(3) of
the Act. (Greenfield Components Corporation, 135 NLRB 479.)
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 the operations of the Respondent 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
which is necessary to effectuate the purposes of the Act.
I shall recommend that the Respondent offer James Gerding and Gerald Meyer
immediate and full reinstatement to their former or substantially equivalent posi-
tion (The Chase National Bank of the City of New York, San Juan , Puerto Rico,
Branch, 65 NLRB 827), without prejudice to their seniority or other rights or
privileges , and that the Respondent make them and Richard H. Alt, James Buddel-
meyer, Harold Donaldson, Elias Hernandez , Joseph W. Morman , Harold Potts,
Norman E. Schroeder, and Glenn Seyer whole for any loss of pay they may have
suffered as a result of the discrimination against them , by payment to each a sum of
money equal to that which he normally would have earned from the date of the
discrimination against him to the date of the offer of reinstatement , with interest
at the rate of 6 percent per annum , less his net earnings (Crossett Lumber Com-
pany, 8 NLRB 440, 497-498) during said periods, the payment to be computed
on a quarterly basis in the manner established in N.L.R.B. v. Seven- Up Bottling
Company of Miami, Inc., 344 U.S. 344. I shall recommend also that the Respondent
preserve and, upon request , make available to the Board or its agents, for examina-
tion and copying, all payroll records, social security payment records , timecards,
personnel records and reports, and all other records necessary to analyze the amounts
of backpay and the right to reinstatement under the terms of these recommendations.
Having found that on or about September 12, 1961, and at all times thereafter,
Respondent has refused to bargain collectively with International Union, Allied
Industrial Workers of America, AFL-CIO, as the exclusive bargaining representa-
tive of Respondent's employees in the above-found appropriate unit , I shall recom-
mend that the Respondent , upon request, bargain collectively with said Union as
such representative.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed in said section . N.L.R.B. v. Express Pub-
lishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
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. The Respondent is an employer within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By terminating the employment on or about September 13, 1961, of employees
Richard H. Alt, James Buddelmeyer , Harold Donaldson, James Gerding, Elias
Hernandez , Gerald Meyer, Joseph W. Morman , Harold Potts, Norman E . Schroeder,
and Glenn Seyer, the Respondent discriminated in regard to hire and tenure of
employment of employees, thereby discouraging membership in labor organizations,
and engaged in unfair labor practices within the meaning of Section 8 ( a)(3) and
(1) of the Act.
4. All production and maintenance employees of Respondent employed at its
Ottawa plant, exclusive of all office clerical employees , guards, professional em-
ployees, draftsmen , and all supervisors as defined in the Act, constitute a unit
a(pr f the Act. the
purposes of collective bargaining within the meaning of Section
5. At all times since September 11, 1961 , International Union, Allied Industrial
Workers, AFL-CIO, has been and now is the exclusive representative of all the
employees in the aforesaid appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By failing and refusing on September 12 and at all times since to bargain
collectively with the said Union as the exclusive representative of the employees in
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
7. By the foregoing conduct, by interrogating its employees concerning their union
activities, by threatening to close the plant if the employees chose the Union to
represent them; by requesting its employees to form a shop committee to negotiate
with Respondent instead of a national union; by conducting a poll of its employees
to ascertain if they would suspend their activities in behalf of a national union for
several weeks until Respondent's president returned to the plant; by notifying em-
ployees Richard H. Alt, James Buddelmeyer, Harold Donaldson, Gerald Meyer,
and Joseph W. Morman on or about August 29, 1961, that they were laid off because
of their activities in behalf of the Union and then rescinding such action the same day
following an affirmative employee vote in the Respondent-directed poll above referred
to, Respondent interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Continental Bus System, Inc. d/b/a Continental Rocky Moun-
tain Lines, Inc. and Amalgamated Association of Street, Elec-
tric Railway and Motor Coach Employees of America, Local
No. 1468, AFL-CIO. Case No. 07-CA-1100. September 05, 1960
DECISION AND ORDER
On February 15, 1962, Trial Examiner Sidney Lindner 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 attached Inter-
mediate Report. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting briefs,
and the Union filed exceptions.
Pursuant to the provision of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 Inter-
mediate Report, the exception and briefs, and the entire record in
this proceeding, and hereby adopts the finding, conclusions, and rec-
ommendations of the Trial Examiner with the following modifications.
1. The Respondent does not deny that it refused to bargain with
the Union and that there was a reduction in the rates of pay and
changes in the hours of employment of four employees 1 during the
week of September 14, 1961. The Respondent contends, however,
that the employees involved were not its employees but were employees
I Richard Safford, Dale Parks , Earl Pitts , Rudy Hakle.
138 NLRB No. 103.