Palmer Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1951

94 N.L.R.B. 1477 (N.L.R.B. 1951)

PALMER MANUFACTURING CORPORATION 1477
-discharging, if necessary, employees hired subsequent to the layoff of June 8,
1949. It will be recommended that as to those already reemployed the Respond-
ent extend to them retroactively all rights and privileges, including seniority
and bonuses, from June 8, 1949, to the date of their reemployment. It will
-further be recommended that the Respondent make whole each of the employees
-named in the complaint whose services were terminated on June 8, 1949, for any
loss of pay he may have suffered as a result of the Respondent's discrimination
.against him by the payment to each of them of a sum of money equal to that
which he would have earned as wages from June 8, 1949, to the date of his re-
instatement or the Respondent's offer to reinstate him, less his net earnings,` if
-any, during said period.
The activities herein found to constitute unfair labor practices on the part
.of the Respondent reveal an opposition to the objectives of the Act so funda-
mental that I infer and find that the commission of further unfair labor practices
may be anticipated from the Respondent's past unlawful conduct. The pre-
-ventive purpose of the Act may be frustrated unless the Respondent is enjoined
.from the commission not only of the acts herein found to be unfair labor prac-
tices but of other conduct proscribed by the Act. It will therefore be recom-
mended that the Respondent cease and desist from in any manner- interfering
with, restraining, or coercing its employees in respect to the exercise of the
xights guaranteed in the Act.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact and upon the entire record in the case, I
.make the following conclusions of law :
1. Upholsterers' International Union of North America, A. F. of L., is a labor
-organization within the meaning of Section 2 (5) of the Act.
2. By discouraging membership in a labor organization, by discriminating in
aegard to the hire and tenure of its employees named in Appendix A, attached
hereto, the Respondent has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
.of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act. .
4. The foregoing unfair labor practices are unfair labor practices affecting
.commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
V See F. W. Woolworth Company, 90 NLRB 289; Crossett Lumber Company, 8 NLRB
-440,497-8; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
PALMER MANUFACTURING CORPORATION and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, DISTRICT LODGE x$49. Case No. 21-CA-895.
June 26, 1951
Decision and Order
On February 5, 1951, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
94 NLRB No. 230.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and ( 3) of the Act and rec-
ommending that it cease and desist therefrom and take certain affir-
mative action , as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in other alleged unfair labor practices in violation
of Section 8 (a) (5) and recommended the dismissal of the complaint
with , respect thereto . Thereafter , the Respondent , the Union , and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.'
The Board 2 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-
diate Report, the exceptions and briefs , and the entire record in the
case,3 and hereby adopts the findings, conclusions , and recommenda-
tions of the Trial Examiner, with the following modifications:
1. The Trial Examiner found , and we agree , that the Respondent
interfered with, restrained , and coerced its employees in violation of
Section 8 ( a) (1) of the Act , by Foreman Moore's statement to Beck-
man on September 16, 1950, that a union member had been discharged
for engaging in union activity and by the following conduct attribut-
able to the Respondent which occurred during the July 1950 organizing
campaign of the UAW-CIO : ( a) Browning 's interrogation of Lusby
and Gomez concerning the interest or activity of their fellow em-
ployees in a labor organization ; ( b) Browning 's statements to Lusby
that the plant would close if union organization was successful and
that an employee was being discharged for union activity ; (c) Brown-
ing's suggestion to Eddy that continued employment was conditioned
upon abstention from union activity ; and (d ) Browning 's request of
Eddy, and Moore 's request of Lusby, to report upon the union activi-
ties of other workers.
2. We do not agree with the Trial Examiner that the Respondent
violated Section 8 ( a) (1) and ( 3) of the Act , by discharging Collester
on September 15, 1950. The Trial Examiner 's finding of discrimina-
tion is predicated upon his prior finding that. Collester was not a.
supervisor , with which we do not agree.
As found by the Trial Examiner on the basis of facts fully detailed
in the Intermediate Report, Collester was a "supervisor in production
i The General Counsel 's request for oral argument is hereby denied as the record and
briefs , in our opinion , adequately present the issues and positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Reynolds and Murdock].
2 On April 26, 1951, after the issuance of the Intermediate Report , the General Counsel
filed a motion to reopen the record and thereafter the Respondent filed objections thereto.
We hereby reject the motion , as the evidence sought to be adduced relates to new alleged
unfair labor practices and may properly be litigated in Case No . 21-CA-1071.
PALMER MANUFACTURING CORPORATION 1479
control," responsibly directed his assistants, and recommended pay
increases and layoffs. With respect to the last factor, the Trial Ex-
aminer tended to minimize Collester's authority by stating that the
recommendations were nothing more than expressions of opinion
elicited from one who worked more closely with• employees than
Lingenfelter, who was Collester's immediate superior. We are not so
persuaded. All recommendations are matters of opinion and, more-
over, the record shows that Collester's recommendations of pay in-
creases for two employees were effective. Another important element,
not referred to in the Intermediate Report, is the fact that De Castro,
who also worked under Lingenfelter and whose job was on the same
level as Collester, was conceded by the parties to be a supervisor within
the meaning of the Act. The Trial Examiner's finding that Collester
exercised no independent judgment in the exercise of his duties is
inconsistent in view of his varied authority, and is hereby rejected.
We accordingly find that Collester was a supervisor within the mean-
ing of the Act .4 We therefore further find that under the circum-
stances of this case, Collester's discharge was not violative of the Act .5
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the. National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Palmer Manufacturing
Corporation, Phoenix, Arizona, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning union interest or activ-
ity of other employees ; threatening its employees that the plant would
close in the event of union 'organization; threatening its employees.
with discharge if they engage in union activity; or requesting its
employees to report the union activity of other employees.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist International Association of Machinists, District Lodge
#49, or any other labor organization, to bargain collectively through
representatives of their own choosing and' to engage in' concerted
activities for the purpose of collective bargaining or other mutual aid
A As Collester assisted in obtaining membership cards from some of the employees, a.
question may arise as to whether or not the Union represented an uncoerced majority
on September 16, 1950 . In view of the Trial Examiner ' s finding, with which we agree,
that the Respondent did not violate Section 8 (a) (5) of the Act for other reasons, we.
find it unnecessary to pass on such question.
IN. L. R. B. v. Edward G. Budd Manufacturing Co., 169 F. 2d 571 (C. A. 6) ; cert.
denied 335 U. S. 908; Accurate Threaded Products Company, 90 NLRB 1364; Pacific-
Gamble-Robinson Company, 88 NLRB 482. Cf. Inter-City Advertising Company of
Greensboro , N. C., Inc., 89 NLRB 1103.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
:as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section
7 thereof.
2. Take the following affirmative action which the Board finds will
:serve to effectuate the policies of the Act :
(a) Post at its plant in Phoenix, Arizona, copies of the notice
.attached hereto and marked "Appendix A." 6 Copies of such notice,
to be furnished by the Regional Director for the Twenty-first Region,
.after having been duly signed by an authorized representative of the
Respondent, shall be posted by Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
.after in conspicuous places, including all places where notices to em-
ployees customarily are posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Notify the said Regional Director in writing, within ten (10)
-days from the date of this Order, what steps the Respondent has
.taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent unlawfully discharged
,Collester and that the Respondent unlawfully refused to bargain with
the Union.
Appendix A
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 interrogate our employees concerning union
interest or activity of other employees; threaten our employees
that the plant would close in the event of union organization;
threaten our employees with discharge if they engage in union
activity; or request our employees to report the union activity of
other employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE #49, or any
6 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted , before the words : "A Decision and Order ," the words : "A Decree
of the United States Court of Appeals Enforcing."
PALMER MANUFACTURING CORPORATION 1481
other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all such activi-
ties except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor-
organization.
PALMER MANUFACTURING CORPORATION,
Employer.
By ------------------------------------------
(Representative ) ( Title)
Dated --------------------
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
Jerome Smith , Esq., fot. the General Counsel.
Mr. Edward M. ,Skagen, of Los Angeles, Calif., and Mr. James C. Jones,.
of Phoenix, Ariz., for the Union.
Latham & Watkins , by Mr. R. W. Lund, of Los Angeles, Calif., for the-
Respondent.
STATEMENT OF THE CASE
Upon a charge filed September 18, 1950, by International Association of-
Machinists , District Lodge #49, herein called the Union, the General Counsel
for the National Labor Relations Board ' by the Regional Director for the.
Twenty-first Region issued his complaint dated October 3 , 1950 , against Palmer-
Manufacturing Corporation, Phoenix, Arizona , herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor-
practices affecting commerce within the meaning of Section 8 ( a) (1), (3), and,
(5) and Section 2 (6) and ( 7) of the National Labor Relations Act, as amendedii
(61 Stat. 136 ), herein called the Act. Copies of the complaint , the charge, and
a notice of hearing were duly served upon the Respondent and the Union.
With respect to unfair labor practices , the complaint alleges, in substance, that
the Respondent had on September 16, 1950, discharged its. employee Lee Collester-
because of his membership in and activity on behalf of the Union, had on the same-
date and continuously thereafter failed and refused to bargain collectively in
good faith with the Union although that organization was then and at all times.
since has been the majority representative of the employees in an appropriate
unit, and from about July 15, 1950, to the date of the issuance of the complaint,..
1 The General Counsel and the staff attorney appearing for him at the hearing are-
herein referred to as the General Counsel ; the National Labor Relations Board is referredk
to as the Board.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Questioned, warned, and threatened employees in connection with union
membership or activity ;
(2) Threatened to discharge and otherwise to discriminate against employees
in connection with union membership or activity, and promised to retain em-
ployees who refrained from such membership or activity ;
(3) Disparaged and insulted employees who were union members or adherents ;
(4) Attempted to induce employees who were union members or adherents to
terminate their employment ;
(5) Transferred and demoted employees because they joined or supported the
Union ;
(6) Engaged in espionage and surveillance over the concerted activity of
employees and attempted to learn the identity of union members and adherents ;
:and
(7) Questioned, warned, threatened, and promised benefits to employees for
.the purpose of encouraging them to engage in espionage and surveillance over
other employees and in an attempt to ascertain the identity of union members
.and adherents.
Respondent's answer dated November 2, 1950, admits certain of the allegations
in the complaint with respect to Respondent's business operations, denies the
appropriateness of the unit and the Union's majority representation in the unit,
.and denies the commission of any unfair labor practices. Affirmatively, the
.answer alleges that Lee Collester was at all times material a supervisor, as de-
fined in Section 2 (11) of the Act. Prior to hearing, Respondent filed a motion
to make the complaint more specific in certain matters, and a further motion
to strike certain language from paragraph 8 of the complaint. Trial Examiner
William E. Spencer granted the motion to strike and at the same time granted
in part and denied in part the motion for greater specificity.
Pursuant to notice, a hearing was held in Phoenix, Arizona, on November 6,
7, 8, 9, 27, 28, 29, and 30, 1950, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Respondent, and
the Union appeared and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the close of the General Counsel's case-in-chief, I granted motions by counsel
for Respondent to strike the allegations in the complaint that union members
or adherents were disparaged and insulted ; that Respondent attempted to induce
.such employees to terminate their employment ; and that Respondent transferred
and demoted employees because they joined and supported the. Union. None
-of the parties availed themselves of opportunity to argue orally on the record.
All parties were given to January 9, 1.951, for the submission of briefs. Briefs
Have been received from counsel for the General Counsel and from counsel for
the Respondent.'
Upon the entire record in the case and from my observation of the witnesses,
.1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Arizona corporation with its principal office and place of
.business in Phoenix , Arizona, where it is engaged in the manufacture of heaters,
2 On January 17, 1951, a stipulation correcting the record was executed. The stipula-
tion is accepted and the document embodying it is hereby incorporated in the record as
'Trial Examiner 's Exhibit 1.
PALMER MANUFACTURING CORPORATION 1483
coolers, and similar items . During the 12-month period ending December 31,
1949, Respondent purchased materials , equipment , and supplies , consisting in
part of steel pipe and fittings , electric motors, paints , electrical cords and switches,
.and other items having a value of approximately $1,885,000, of which approxi-
mately 90 percent in value was shipped direct to Respondent 's plant from points
outside the State of Arizona . During the same period the value of Respondent's
products was .approximately 3 million dollars, of which about 90 percent in value
was shipped to States other than the State of Arizona . The jurisdiction of the
Board on the point of commerce is not contested.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , District Lodge #49, is a labor organ-
ization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
During the period from about July 10 to 15 , 1950, United Automobile Aircraft &
Agricultural Implement Workers of America (UAW-CIO), herein called the
UAW, on three occasions distributed leaflets to Respondent's employees as they
were leaving the plant, inviting the employees to sign and mail cards authorizing
representation by the UAW . Shortly thereafter , Respondent ' s complement of em-
ployees was sharply cut due to a seasonal reduction in force and the UAW cam-
paign was either abandoned or abated except for a very few calls made upon
,employees at their homes by a representative of another labor organization
affiliated with the same parent , the CIO.
At about the time of the leaflet distribution , Donald Browning , Respondent's
chief inspector , and by stipulation a supervisor , questioned one of his subordi-
nates, Donald Lusby , asking if Lusby knew of any union activity in the shop.
During this interrogation , Browning said ( contrary to fact ) that another em-
ployee, Halvorsen , was being discharged , intimated that union activity might be
the cause , and asserted that Oscar C. Palmer, Respondent 's president , would close
before he would "go union ." On another occasion , also during the month of July,
Browning asked employee Daniel Gomez if he knew of any union activity and
inquired if Gomez had received any of the union literature . When Gomez an-
swered that he had not, Browning remarked ,-cryptically , "You have been too long
here not to know better ." On the third occasion revealed in the record , Brown-
ing in speaking to employee Virgil Eddy said that he and Eddy had better than
ordinary jobs, that they wanted to keep them , and that Browning would appre-
ciate the relay of any information that Eddy might gain concerning talk about
a union or signing union cards.
These findings are based upon the credited testimony of Lusby, Gomez, and
Eddy as to their conversations with Browning . Browning denied having made
the remarks or inquiries attributed to him. His denials are not credited.
In late August, a number of employees in the die shop, with employee Paul
Beckman as their spokesman , requested a wage increase . Action on this request
was deferred pending the return to the city of President Palmer , then on vaca-
tion. On September 11, while the request for increases was still not finally
answered , the foreman of the die shop, William Moore, inquired of Donald Lusby
if Beckman was "agitating " for a union and asked . Lusby to advise him, Moore,
if such information came to Lusby.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, counsel for Respondent argues that this testimony of Lnsby must
be disbelieved for the reasons that on September 11, Beckman was not in fact
engaged in any union activity, because Moore had known for some time of
Beckman's membership in the Union, and because Moore had been a member
of the Union for 15 years and a shop steward. Evidence that Moore was a mem-
ber of the Union on September 11 is somewhat equivocal. Aside from this,
however, and in the face of Moore's denial that such a conversation occurred,
I credit Lusby. Beckman's leadership in seeking a wage increase for the em-
ployees in the die shop might well suggest to Moore the possibility that Beckman
was also trying to organize the employees into a union. Further, if Lusby had
sought to contrive his testimony concerning Moore's remarks, his purpose would
more obviously have been served by placing this occurrence 2 days later, when
Beckman did start his organizational efforts for the Union.
I find that by interrogating employees concerning the interest or activity of
their fellows in a labor organization, by threatening that the plant would close
in the event of a successful union organization, by intimating that an employee
was being discharged in connection with union. activity, by suggesting that con
tinued employment was conditioned upon abstention from union activity, and
by asking employees to report upon the union activity of other workers. Respond-
ent 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 3
B. The discharge of Lee Collester
Collester was hired by Charles Dark in March 1949 and discharg'ect September
15, 1950. During his tenure Collester was a supervisor in production control
having the responsibility of supplying production lines with parts to be assembled
into finished products. In addition it was his responsibility to arrange the
return to stock of items (if inspection proved them to be usable) received, from
customers and generally to keep the area about the assembly line and the stock
room free from the clutter of unneeded parts and returned items. To accomplish
this, Collester had from two to five nien assisting him (depending upon the
seasonal ebb and flow of business) and to some extent, I am persuaded by the
evidence, did some of the manual work. Over all, however, the record makes
clear that Collester's primary function was to direct his assistants, to see that
the necessary work was done in good time, and to arrange for the assignment
of other men to him when the occasion required.
Respondent contends that Collester is a supervisor within the meaning of
Section 2 (11) of the Act and that, therefore, his discharge is not the concern
of the Board. There is evidence to support this contention. Collester's time
card sets forth his work as "supervision"; on many occasions he distributed
pay checks to his assistants ; he was permitted to make and receive personal
telephone calls during working hours although ordinary workers were not ;
at least one of his assistants was informed by Collester's foreman, Gilbert Lingen-
felter, that Collester was a supervisor ; Collester was hired to work at $1 an
hour, 15 cents above Respondent's minimum hiring rate; and finally, and most
3 Employee David Boatman testified that in May 1948, Charles Dark , Respondent's
executive vice president, said that Palmer would fire anyone wearing a union button.
As this evidence was beyond the scope of the complaint in point of time , it was offered
and received for background purposes only. Dark denied making such a remark. In
consideration of the remoteness of the incident and its, thus , trifling evidentiary value,
I find it unnecessary to resolve the conflict and have not considered it in connection with
any finding here.
PALMER MANUFACTURING. CORPORATION 1485
important, Collester did direct the work of his assistants. In connection with
supervisors, the Act speaks of "responsibly" directing. Although the word
"responsibly" in context does not convey a precise message to the reader and
surely is an adjective whose meaning in application can give rise to contro-
versy, I think it may be said that at the very least it connotes direction which
is necessary to the accomplishment of a goal, for which accomplishment the
director is held accountable. Viewed in this manner, Collester was required
primarily to supply the assembly lines ; he was provided with assistants to do
the job ; he directed his assistants ; ergo, he did so responsibly.
The General Counsel insists that Collester was not a supervisor and relies,
in large measure, upon the latter's testimony that he worked with, not over, his
assistants, that he had no real authority over them, and that the supplying
of the assembly lines was actually the joint responsibility of Collester and the
expediters. The evidence does not support this position. Collester did oversee
the work of two to five expediters and direct their efforts. Of course, the fact.
that he was paid a lesser hourly wage than one of his subordinates is a factor
to be considered. But the evidence is overwhelming, and I find that Collester
was the director of the line expediters.
As Respondent concedes, Collester was in the lowest rank of supervision and
his authority, whatever it was, did not extend to more than five men. A reasoned
consideration of the function which he performed leads one to wonder in what
respect he was required, or had opportunity, to exercise independent judgment.
Even one who "responsibly directs" is not a fortiori a supervisor within the
frame of the Act's definition if his authority is "of a merely routine or clerical
nature" not requiring "the use of independent judgment." The determination
of Collester's status turns upon this pivot, in my opinion, for in no other respect
does the evidence satisfactorily establish him to be possessed of such authority
as to remove him from the Act's definition of employee. I have considered, of
course, Lingenfelter's testimony that Collester recommended that certain employ-
ees be given pay increases and that others be laid off. And have weighed this
against Collester's denials that he made any recommendations of such character.
The record convinces me that Collester was not invested with any authority to
make effective recommendations and I am further convinced that his "recom-
mendations" were in fact nothing more than expressions of opinion which Lingen-
felter naturally would solicit from one who worked more closely with the
employees in question than he.
To return to the salient matter, it is clear and I find that Collester acted as
an overseer in respect to the expediters on the assembly lines ; that he directed
them, when necessary, to bring units to the lines for assembly ; that he instructed
one or more of them to return items to stock and to clean up about the assembly
and stockroom areas ; that he borrowed men from other departments when he
needed them, and when they were available; that he permitted his expediters,
on request from another department,, to work at jobs other than expediting;
and that the authority he exercised in these connections was of a routine nature
and did not require the exercise of independent judgment. In reaching this
conclusion, I have considered that Collester had no control over what items or
how many were to be assembled. He had no voice in determining what com-
ponent parts would be required for the assembly operations. He could not
arrange for the closing of an assembly line'if he believed that he needed the
expediter for other work, such as cleanup. He could not have a different item
run so as to avoid the necessity of returning to stock components which might
thereby be used. Collester had the bare authority to tell the expediters what
to do within the limits of what the operation of the assembly lines required that
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he tell them to do. In my opinion it is precisely this type of bare supervision
which the framers of the Act intended should not come within the class excluded.
from the benefits afforded to those termed employees. I so find.4
So we come to the question of Respondent's motivation in discharging Collester;.
was it to discourage membership in or activity on behalf of the Union? Lingen-
felter, Collester's foreman, testified that Collester was an able employee, that
he understood what was required of him and had the capacity to do his job..
According to Lingenfelter, Collester handled his job well until about the last
6 months of his employment. Collester started at a wage of $1 an hour and in.
October 1949, received his last merit increase and, at the time of his discharge,
his wage had remained unchanged for nearly a year. In June 1950, Collester-
supplied the wrong size motor to an assembly line causing the shutdown of
the line for nearly an hour. In July, according to Chief Inspector Browning,-
Collester interfered with an assembly operation by telling one of the employees
to disregard the instruction of her foreman. The employee in question testi-
fied, credibly, that Collester did nothing of the sort, but whatever happened on
this occasion, it is clear that he and Browning were in some sort of heated.
disagreement. In August, Collester and Browning again engaged in a dispute-
when Collester challenged Browning's authority to make a change in specifica-
tions. For the last several months of Collester's employment, according to Jim
Conway who was in charge of the stockroom, .Collester was exceedingly lax in
returning unneeded stock and salvageable items and Conway on several occa-
sions complained to Foreman Lingenfelter and Superintendent McGowan in,
that connection. In late August, according to Conway, much material that
should have been returned to stores was scattered about the assembly lines and
Conway complained to Lingenfelter and McGowan that he bad been unable to,
persuade Collester to move it. Lingenfelter remarked that vacation would
soon start and that he expected Collester would thereafter improve. Conway
testified that on several occasions he suggested to Lingenfelter that Collester
be discharged. Robert M. Arden, who drove a lift truck delivering materials.
about the plant testified that Collester's area was constantly a problem in that
stock generally obstructed the aisles making passage of the lift truck difficult
if. not impossible. Arden complained to Collester and to Lingenfelter about the,
situation on many occasions, he testified, and made his last complaint on Septem-
ber 13, 2 days before Collester was fired. In late August, according to Brown-
ing, Lingenfelter remarked that he did not know what to do about Collester.
Browning volunteered that if Collester was subject to his, authority, he would
have let him go long since. Lingenfelter replied, according to Browning, "IN
don't know, Don. He has good possibilities he is a nice fellow. I think I am
going to wait until after vacation and see if he won't pick up, maybe he will come
around and will be all right. He has it in him and I know he can do it." Edward
Gerlach, foreman of the assembly lines, testified that Collester constantly. failed
to keep the lines properly supplied and that he frequently complained to Lingen-
felter or to McGowan about it. On September 13, according to Gerlach, Col-
lester failed to supply motors in sufficient quantity to one of the lines and, as'
a result, the line was shut down for a considerable period while the deficiency
was being corrected.
Lingenfelter testified that he received the numerous complaints from Brown-
ing, Conway, Arden, and Gerlach, but that he believed in Collester's capacity
to do the job and felt that Collester would improve. When, in June, Collester
supplied the wrong size motor to an assembly line, Lingenfelter, he testified,
4 On this point see E. B. Law and Son, 92 NLRB 826.
PALMER MANUFACTURING CORPORATION 14$7
told Collester that if such mistakes were repeated both of them would lose their
jobs. On another occasion, according to Lingenfelter, he told Collester that.
if shortages continued to develop on the assembly lines, some changes would
be made. Just before the vacation period, which began August 28, 1950, Lingen-
felter, according to his testimony, told Superintendent McGowan that he would
discharge Collester after vacation if the latter did not improve in the perform-
ance of his work.
After vacation, the plant resumed operations on September 11. On that day
Lingenfelter told Charles Dark that Collester had asked for a raise and that,.
although Collester's work was not "too good," he wondered if a raise would not
provide the incentive for Collester to do a better job.' Dark replied that a raise-
should await proof that Collester's work would improve. On September 13,.
according to Lingenfelter, he was criticized by Dark because of the shutdown of
an assembly line caused, according to Lingenfelter, Gerlach, and others, by the
failure of Collester to supply motors in sufficient quantity. When Dark asked
Lingenfelter how he proposed to prevent these recurring shortages, Lingenfelter
replied, he testified, that he would have to discharge Collester. Dark suggested
that Lingenfelter take no action for a few days to see if Collester did not im-
prove. On the same day, according to Lingenfelter, he told Collester that an
accumulation of unneeded stock and returned goods must be cleared away within
the next 24 hours on penalty of dismissal: Two days later, on Friday, still
according to Lingenfelter, he noticed that the stock had not been cleared away
and that Collester was spending about half of his time out of his department.
Without consultation with Dark or anyone else in authority, Lingenfelter, he
testified, had Collester's check prepared and shortly before quitting time, told
Collester that he was fired because of unsatisfactory work.
Of course the General Counsel has a different view of the evidence so far
recited which, if fully believed, certainly establishes that Respondent had good
ground for making the discharge and further that in doing so it was not moti-
vated by any unlawful consideration. Based primarily upon the testimony of
Collester, the evidence in support of the complaint is that Collester's work was
never the subject of criticism by Lingenfelter, that Gerlach unfairly attributed
responsibility for shortages to Collester which resulted from a shortage of stock,
that Superintendent McGowan complimented Collester on his work as late as
July 1950, and that Conway never voiced any complaints to him. In cases as
closely contested as this, witnesses sometimes develop selective memories so
that what they recall on the stand is often the bits of evidence which tend to
support the cause they favor. I have examined all the evidence bearing upon
Collester's discharge and conclude that he was neither the careless, inattentive,
surly, and uncooperative individual painted by Respondent's witnesses non the
completely satisfactory worker that the General Counsel sees. I have no doubt
that Collester did not perform his work to the satisfaction of Browning, Conway,
and Arden. But he was not required to do so. If he satisfied Lingenfelter, he
was doing well enough and Lingenfelter was in a position to make a balanced
judgment on Collester's work. If Browning did not approve Collester's question-
ing of his authority, Lingenfelter need not have been greatly exercised about it.
If Conway and Arden were irked because of the accumulation of unneeded parts
and the failure to deliver returned goods to stock, Lingenfelter could reflect that
5 Based upon the credited testimony of Dark. Curiously, Lingenfelter testified that
he;'could-not- -recall -recommending a wage increase for Collester, but remembered that
Collbster had asked for a raise and admitted that he may have said that he would try to
arrange it.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collester had other duties to perform as well. The evidence as a whole con-
vinces me that when the plant closed for vacation, Lingenfelter was reasonably
content with Collester, that the complaints which came to him concerning Col-
lester were in the judgment of Lingenfelter petty or predicated upon an incom-
plete evaluation of Collester's function. I do not credit Lingenfelter's testimony
that he was at the point of discharging Collester then-that Collester must
.redeem himself after the vacation or go. One of the reasons leading to my dis-
belief is that even Lingenfelter never testified that he warned Collester then
,of such a determination. Another is the recommendation by Lingenfelter on
September 11 that Collester be given a wage increase. Accepting the testimony
of Dark as to this incident it is clear that Lingenfelter did not make the recom-
mendation with any great enthusiasm and readily agreed to Dark's suggestion to
delay but he did ask that Collester be given more money. It is difficult, too, to
give full credence to Dark's testimony that Lingenfelter suggested that a raise
might be the incentive for Collester to improve on the job. Lingenfelter testi-
fied that Collester had made such a suggestion to him once affecting another
employee, that Lingenfelter recommended the increase (with misgivings as to
its probable effect), and that the work of the individual was not affected. I
conclude that when Lingenfelter spoke to Dark concerning Collester on Septem-
ber 11, there was no thought in his mind of having Collester discharged.
Much happened during the week of September 11. On the 12th, Collester
questioned Paul Beckman, whose name has already appeared in this Report,
:about the progress the employees in the tool and die shop were making toward
a wage increase. As a result of the conversation which ensued, Collester and
Beckman decided to investigate the possibility of forming a union. On Thurs-
day, the 14th, Beckman and Collester told all employees that they could attend
a meeting to be held that evening in the Union's hall. Collester attended the
meeting and participated prominently in getting a number of employees to sign
authorization cards for the Union. On Friday, Collester solicited workers in
the plant to sign such cards and succeeded in getting 17 signatures. Collester
testified that he performed all this solicitation outside of worktime but, as
Respondent does not defend his discharge on the ground that he was soliciting
during working hours, this is a matter of little m >ment. Near the close of the
day, according to Collester, Lingenfelter called him aside and said, "I just
heard something that just about knocked me off my feet . . . Charlie said to
lay you off." When Collester asked for a reason, Lingenfelter replied that Dark
described Collester's work as unsatisfactory.
Beckman testified that on the next morning, his foreman, William Moore,
remarked that Collester had been fired for organizing a union. Daniel Gomez
testified that on September 18, Lingenfelter said that Collester was discharged
for such activity.
On Saturday, James C. Jones, the Union's business agent, met with Dark
about the Collester discharge, claiming it to be discriminatory. Dark denied
that this was so and called Lingenfelter to the office.. As Lingenfelter entered,
Dark said that the former was the one who had discharged Collester, that he
had told Jones that Collester was discharged for inefficiency and unsatisfactory
work, and that the discharge had been delayed over the vacation period in the
hope that Collester would improve. Lingenfelter, thus prompted, agreed that
this was so and said that Collester had been indirectly warned several times of
what might happen to him.
This is, in sum, the evidence upon which the critical determination must be
made-why was Collester discharged. First, of course, the General Counsel
must establish that Respondent knew or had reason to believe that Collester
PALMER MANUFACTURING CORPORATION 1489
was engaged in some activity in behalf of the Union . Collester testified that
on September 13 he invited Foreman William Villa to attend the union meeting
to be held on the next night . Aside from the question of .whether Villa was in
fact such a foreman as would constitute him a part of management , Villa denied
that he reported the invitation to any of his superiors and Villa was in no other
conceivable way involved in the discharge . I credit Villa 's testimony. Fore-
man William Rose and Glenn Castner were told of Collester 's activity in or-
ganizing for the Union but both of them, it appears , favored such a move and
lacking ' direct testimony on the point , I am unwilling to draw the inference
that they reported their knowledge to Lingenfelter or anyone superior to them.
The testimony of Daniel Gomez, if believed , would establish conclusively that
Respondent knew -what Collester was doing and discharged him for it. I have
credited other testimony of Gomez and believe him to be in general a reliable
witness. But as to this particular incident , I am convinced that he is mistaken.
Both Lingenfelter and his wife ( who was present ) denied that any such con-
fession was uttered and there is uncontradicted testimony , which I credit, that
Gomez had been drinking. somewhat, heavily on this occasion. It is so ex-
tremely unlikely that Lingenfelter would blandly confess to Gomez what he
had just 2 days before so stoutly denied to Jones , that I credit his denial that he
spoke as Gomez testified . The conversation between William Moore and Paul
Beckman is , however, another matter.
According to Beckman , on the morning , of Saturday , September 16,. he was at
work in the shop when Foreman Moore said that a man named McAlister or
Collester had been fired for trying to organize a union in the shop, that Collester
had secured signatures from about 80 percent of the employees, and that there
would probably be a strike on Monday . Moore denied that he had made such
a statement to Beckman and another employee , Don Maisch , who was then pres-
ent in the tool and die room , testified that he did not hear Moore mention anything
about Collester being discharged . Respondent points out in its brief that Moore
knew Collester and that there could be no occasion for Moore pretending to be
unsure of his name. I credit the testimony of Beckman . Moore, as has been
found, was concerned that Beckman might be engaged in union activity and on
Monday of this same week had inquired of another employee if Beckman was
"agitating" for a union . It is entirely probable that, learning of Collester's
discharge , Moore would point out to Beckman the dangers attending such conduct.
In my opinion the testimony of Beckman that Moore misspoke Collester's name
is not a circumstance indicating the unlikelihood of his having heard what he
said that he did. If anything , it attests to the accuracy of his memory for, as it
adds - nothing to the content of his testimony , it is probably not a contrived detail.
The statement by Moore that Collester was discharged because he was engaged
in union activity was an act of interference , restraint , and coercion in disregard
of the guarantees of Section 7 of the Act and thereby Respondent violated Section
8 (a) (1) of the Act. I It is also some evidence , although not conclusive, that
Respondent 's motivation was precisely that which Moore said that it was. In
consideration of Moore's remark to Beckman , recalling that Lingenfelter regarded
Collester as sufficiently satisfactory to suggest a wage raise for him only 5 days
before, believing that Collester was discharged without warning and without
having committed any act which reasonably would have provided an occasion
for a lawful discharge , and believing Collester 's testimony that Lingenfelter ex-
pressed shock at the time of the discharge and that Lingenfelter then attributed
.his action to the direction of Dark, I conclude and find that Respondent became
aware of Collester 's union activity on September 14 or 15 and, perhaps in the
belief that Collester was a supervisor within the meaning of the Act and without
953841-52-vol. 94-95
1490 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
the Act's protection, determined to and did discharge him for that reason. By
this discriminatory discharge, Respondent interfered with, restrained, and co-
erced its employees in the exercise of rights guaranteed in Section 7 of the Act
and discouraged membership in a labor organization. Respondent thereby vio-
lated Section 8 (a) (1) and (3) of the Act.
On Monday, September 18, a number of Respondent's employees went on strike
in protest against the discharge of Collester and for other reasons which will be
discussed in the following section of this Report. As the strike was caused in
part, at least, by Respondent's unfair labor practice in the discharge of Collester,
the strike was an unfair labor practice strike.
C. The refusal to bargain
1. The appropriate unit
The complaint alleges and the answer denies that : -
All production and maintenance employees, excluding office, clerical and
supervisory employees 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. In its brief, Respondent reiterates its posi-
tion on the unit, alluding to a stipulation in the record that it would include engi-
neers, tool designers, the office janitor„over-the-road truck drivers, and employees
in the experimental and advertising and printing departments. but would exclude
time-study men. There is support for Respondent's position that the claimed unit
would include engineers although evidence that this category includes the pro-
fessional variety is lacking. There is no merit in Respondent's other objections
to the unit, particularly as the question of unit was not raised at or near the time
that the demand for recognition was made, and I find that on September 16, 1.950,
and at all times material thereafter a unit of all production and maintenance
employees, excluding office, clerical, professional, and supervisory employees as
defined in the Act, constituted and now constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
2. The Union's majority in the unit
On September 16, 1950, there were 168 concededly nonsupervisory employees
in the appropriate unit. The General Counsel would add to this number 5
individuals, Antonio Ozlanski, Lloyd T. Culbreth, Rainey Howard, Charles
Brotherton, and Lee Collester, all of whom he asserts, contrary to the position of
.the Respondent, not to be supervisors. I have found that Collester was not a
supervisor and, as his discharge was discriminatory, he remained an employee
of Respondent on September 16. His name is hereby added to the list of em-
ployees as of that date. Without detailing the evidence-leading to this, determi-
nation, because neither the Union's majority nor the scope of the unit is thereby
.affected, I find that Ozlandski, Culbreth, and Howard were not supervisors within
the meaning of the Act and that Brotherton was. The names of these 3 non-
supervisors are hereby added to the list of employees as of September 16 making
a total of 172 then in, the unit. Respondent would add the names of 151 indi-
viduals who at that time had been laid off either in July or early August. As
there is no evidence that any of these continued to be in an employment relation
to the Respondent after the layoffs I shall not include them.
At.the close of Friday, September 15, James C. Jones, the Union's business
agent,, was in possession of.103 authorization cards signed by employees among
'PALMER' MANUFACTURING CORPORATION 149.1
the 172" Each of the cards was authenticated by competent evidence. The
record does not support Respondent's assertion that the cards were secured
through misrepresentation or were otherwise invalid. I find that on September
15, 1950, the Union was the duly designated representative of Respondent's
.employees in an appropriate unit.'
3. The refusal to bargain
On the morning of September 16, Business Agent Jones called upon Vice-
President Dark at Respondent's plant, told Dark that the Union represented a
majority of the employees, handed Dark 106 authorization cards (among them
the 103 found to be valid), and demanded recognition. Dark examined the cards
(recognizing, he testified, the names of only a few of the signatories) and told
Jones that President Palmer was out of town and that only Palmer could answer
the demand. Jones offered, he testified credibly, to permit a comparison of the
cards with Respondent's payroll records but Dark reiterated that any decision
must come from Palmer. Jones then went on to discuss the discharge of Collester
and the morning meeting ended with Dark's offer to attempt to reach Palmer by
telephone. Dark and Jones met again that afternoon: Dark reported that he
had been unable to reach Palmer but that he expected to do so that evening and
further discussion was had concerning Collester. Jones warned that the em-
ployees were in a mood to strike but that such an event could probably be avoided
if Collester was reinstated pending investigation and a meeting could be arranged
with Palmer before working hours on Monday, the 18th. Dark again promised
to attempt to convey the message to Palmer. Through an intermediary, Jones
a.nd Dark exchanged information Saturday night and Sunday. Dark reported
that he had talked to Palmer ; that Palmer would return to Phoenix on Monday
and review the situation concerning the demand for recognition and the dis-
charge of Collester with an "open mind." On Sunday a group of employees
(about 40) met with Jones and voted to strike the next day if Palmer did-not
meet with their representatives before 8 a. in.
The next morning a picket line was formed before the plant. Palmer arrived
there at about 7: 30 a. in. but did not seek out Jones. Jones made no attempt
to see Palmer. And the strike continued.
On Tuesday, September 19, according to the uncontradicted and credited tes-
timony of Palmer, a representative of the United Steelworkers of America, CIO,
telephoned him saying that the Steelworkers had been awarded jurisdiction over
Respondent's employees by the CIO, that his organization represented a ma-
jority of them,.and that he would petition for a Board election. On Thursday,
September 21, Nicholas Dragon of the UAW telephoned Palmer asserting that
the UAW represented a majority of the employees and denying that jurisdiction
6 Not counting the card of Ozlanski which, though dated September 15; was, he testified,
signed on the following morning.
71 find .no merit in Respondent's assertion that the Union was unlawfully assisted in
its campaign for cards by Foremen Castner and Rose. Castner told one of the solicitors
that he approved unionization. Rose furnished a list of employees whom he thought
would be interested in joining, attended the first organizational meeting, and signed an
authorization card. Neither participated otherwise in the campaign for the Union.
I find that the approval of the union movement. thus evidenced by Castner and Rose did'
not amount to interference and that the employees who were aware of their attitude
had no reason to conclude that the Union was sponsored by management or that they
were in any manner to be affected in their jobs by their participation in or refusal to
participate in the union drive. The cases cited by Respondent to support its position
cover situations where .supervisors were -the active proponents of a union, using. their
positions of authority to coerce employees to.join.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been awarded to the Steelworkers. On September 26, the UAW and the
Steelworkers each wrote to Respondent, each claiming to represent a majority
of the employees. On the same date, the Union wrote to Palmer offering to re-
turn all employees to work if Respondent would submit all issues in dispute to
arbitration. This was, of course, among other things a demand for recognition.
Palmer answered the Union saying that he would be glad to have the employees
return to work but, adverting to the claims of the UAW and the Steelworkers,
suggested that the Union file a petition and withdraw its unfair labor practice
charge in order to' determine the question of representation.
On September 26 the UAW filed a representation petition e On October 3,
the Union again, by letter, demanded recognition. On, October 6, Respondent
was advised of the dismissal of the UAW petition and on the same date learned
that the UAW was appealing the dismissal. On October 16, the Union reiterated
its * demand for recognition and on the same date Respondent filed. an RM
petition which was dismissed by the Regional Director 3 days later. On Novem-
ber 28 and 30 the Board upheld the action of its Regional Director in respect to
the UAW petition and Respondent's petition, respectively, because of the issuance
of the complaint in this. case alleging an unlawful refusal to bargain.
There was no such refusal. When the Union made its demand on September
16, Respondent was under no duty to grant it instanter. Dark's answer, that
.it was a matter on which Palmer must be consulted was completely reasonable
and, indeed, I understand the position of the General Counsel to be that the un-
lawful refusal to bargain which the complaint alleges relates back to the date
of September 16 -only because of Respondent's subsequent conduct, which, it is
asserted, establishes that it never in good faith intended to accord to its em-
ployees the rights which the Act guarantees. But on Monday no demand was
made by the Union. The General Counsel contends that Palmer. was advised
in the premises, that he knew of the demand made on Saturday, and that it was
up to him to seek out Jones to give him an answer. Furthermore, the General
Counsel continues, it would have been useless for the Union again to have
approached Respondent on the 18th; that it was ridiculous to suppose that an
employer who had discharged one of its employees because of his union activity
would have granted recognition to the Union. Perhaps, but Respondent's good
faith was not put to the test. Even_ had the demand been made and refused,
that circumstance alone would not have established Respondent's bad faith. It
could still, lawfully, have questioned the Union's majority (the discharge of
Collester does not establish that Respondent believed that he had been success-
ful in signing up a majority of the employees). The-General Counsel goes on to
argue that any doubt which the Respondent might have entertained in respect to
majority must have been dissipated on Monday when most (I find) of the em-
ployees appeared on the picket line before the plant. Again, I disagree. There
were two reasons for the strike-the discharge of Collester and the refusal to meet
with the Union. It is not entirely certain that all those who were striking because
of the discharge were also on the picket line to enforce a demand for recognition.
I conclude that the Union did not prove its majority by the numbers who partici-
pated in the picketing. Finally it is contended any question that Respondent
may have had with respect to the validity of claims made by the UAW or the
Steelworkers must have vanished when the Regional Director dismissed the
UAW petition and certainly when Respondent's own petition was dismissed.
The argument goes that in these circumstances Respondent could not possibly
S Supported by 41 authorization cards but bearing signatures 'of only 17 individuals who
were on Respondent 's payroll of September 16.
PALMER MANUFACTURING CORPORATION 1493
have been held to have violated the decisional doctrine of the Midwest Piping
case ° had it then extended recognition to the Union. But the theory of the
alleged violation is not that Respondent failed to do something which it could
lawfully have done but that it refused to do that which it must. In addition,
this particular argument has a "bootstrap" quality. The petitions were dis-
missed, so the Board said, because of the issuance of the complaints alleging a
violation of Section 8 (a) (5). As there .was no such violation, the dismissals
prove nothing..
I find that by failing to accord recognition to the Union on September 16, 1950,
and thereafter, Respondent has not violated Section 8 (a) (5) 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 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 such of them as have been found to constitute
unfair labor, practices-ten d-to-lead -to; and have led to,Jabor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I will recommend that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged Lee Collester on.
September 15, 1950,4t; will be recommended that Respondent offer to Collester
immediate and full reinstatement to his former or substantially equivalent posi-
tion 10 without prejudice to his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay he may have suffered by reason
of the discrimination ,against him, by payment to him of a sum of money equall
to the amount he normally would have earned as wages from 'the date of his
discharge to the date of Respondent's offer of reinstatement, less his net earn-
ings during that period." Loss of pay shall-be determined by d'edueting from a
sum equal to that which he normally would have earned for each quarterly period,
or portion thereof, his net earnings, if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any Other quarter. 'The quarterly period shall. begin with the
first day of January, April, July, and October." - Upon reasonable request, Re-
spondent shall make available to the Board or its agents all records pertinent
to the calculation of back pay.
As Respondent's conduct in discharging Collester and as illuminated by the
other instances of unfair labor practices found discloses a purpose to defeat
self-organization and its objectives, I am convinced that the unfair labor prac-
tices are persuasively related to the other unfair labor practices proscribed by
the Act and that the danger of their commission in the future is to be anticipated
from the course of Respondent's conduct in the past. In order therefore to make
effective the interdependent guarantees of Section 7, to prevent the recurrence of
° Midwest Piping and Supply Co., Inc., 63 NLRB 1060.
10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Crossett Lumber Company, 8 NLRB 440.
12 F. W. Woolworth Company, 90 NLRB 289.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices , and to minimize strife which burdens and obstructs com-
merce , and thus to effectuate the policies of t he Act, it will be mecouuneuded that
Respondent be required to cease and desist from infringing in any manner upon
the rights guaranteed to its employees by Section 7 of the Act.
I will recommend that the allegation of the complaint that the Respondent has
violated Section 8 ( a) (5) of the Act by refusing to bargain with the Union be
dismissed.
As it has been found that Respondent ' s employees since September 18, 1950,
have been on strike caused in part by Respondent ' s unfair labor practices , it will
be recommended that, upon unconditional application nutde at any tittle when
the discharge of Collester is still unreniedied or within 5 days after lie is offered
reinstatement in conformance with the terms of this recommended order, all
strikers be restored to their former positions discharging , if necessary , as many
of those hired on or since September 18, 1950, as will provide places for returning
strikers.
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, District Lodge #49, is it labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lee
Collester, thereby discouraging membership in the Union, Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
3. By such conduct and by threats, interrogation, suggestions of discharge, by
attempted surveillance, and by the other unfair labor practices found in the
body of this Report, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (0) and (7) of the Act.
5. Respondent has not refused to bargain with the Union in violation of Sec-
tion 8 (a) (5) of the Act.
[Recommended Order omitted from publication in this volume.]
INTERNATIONAL BROTHERHOOD OF TE :lbts'i'ia s, Cli AUFFI^IURS, WARE-
HOUSEMEN & HELPERS OF AMERICA , OVER-TIii -Rom) AND CITY TRANS-
PER DRIVERS, HELPERS, DocIci r i N AND WAREHOUSEMEN, LOCAL
UNION No. 41 , A. F. L. and FRANK BOSTON. Case No. 17-CB--36.
June 26, 1951
Decision and Order
On January 18, 1951, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2)
of the National Labor Relations Act, as amended, and recommending
94 NLRB No. 214.