Reilly Tar & Chemical Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1965

151 N.L.R.B. 1503 (N.L.R.B. 1965)

REILLY TAR & CHEMICAL CORPORATION 1503
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, as amended, we notify you that:
WE WILL NOT threaten you with economic reprisals to discourage your mem-
bership in or activities on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW), AFL-.
CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in
the exercise of your rights under the National Labor Relations Act.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive representative of all employees in the unit described
below and embody any understanding reached in a signed agreement.
All production and maintenance employees at our Marlette, Michigan,
plant, excluding office clerical employees, and all supervisors and guards
as defined in the Act.
METAL CRAFT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(RepreSentative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with Board's Regional Office, 501 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Reilly Tar & Chemical Corporation and Oil , Chemical and
Atomic Workers International Union , AFL-CIO. Case No.
.0.5-CA-1905. April 9, 1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the
complaint and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof. The General
Counsel filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 affirined. The Board has considered the
151 NLRB No. 150.
1504 DECISIONS OIL NATIONAL LABOR RELATIONS BOARD
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions,' and recommendatlons.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and
orders that the Respondent, Reilly Tar & Chemical Corporation, its
officers, agents, successors , and assigns, shall take the action set, forth
in the Trial Examiner's Recommended Order with the following
modification.
Paragraph 1(c) is modified to read as follows:
"Assisting employees in their efforts to discontinue their union
affiliations." 3
'While we feivently suppoi t the maxim that "One father is more than it hundred
schoolmasters ," we also acknowledge that a father ' s zeal in instruction may cause, in
the breast of even the most losing son, the emotion so well described by the poet
I'll meet the raging skies
But not an angry father
Thus, rather than interject ourselves into a happy family relationship in this case where
the order and remedy are not inateiially affected, we deem it unnecessary to decide whether
the remarks by Ruble, peic , to Ruble, fins, constitute a violation of Section 8(a) (1) of
the Act, as found by the Taal Examiner
2 We find without merit the Respondent ' s allegation of bias and prejudice on the part
of the Trial Examiner Theis is no basis for finding that bias or prejudice e,,isted merely
because a Trial Examinee has iesolved some or all of the important factual conflicts
arising in a proceeding in favor of the Geneial Counsel c witnesses As the Supieme Court
has stated " [T]otal election of an opposed view cannot of itself impugn the
integrity or competence of a. trier of fact" IV LBB v Pittsbuigk S S Company, 337
U S 656, 659 Aloreoser , as it is the Boaid's established policy not to overrule a Tiial
Examiner' s resolutions as to credibility except where, as is not the case heic, the clear
preponderance of all of the relevant evidence convinces it that the resolution, were in-
correct, we find , contrary to the Respondent ' s contentions , that no basis exits for disturb-
ing the Taal Examiner 's credibility findings Standard Did Wall Pioducts . Inc, 91
NLRB 544, enfd 188 F 2d 262 (C A 3)
3Accordingly, in the second indented paragraph of the Appendix, the words "solicit or"
are deleted
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , in which charges were filed on February 14, 1964, and the com-
plaint was issued on March 23, 1964 , involves allegations that the Respondent, Reilly
Tar & Chemical Corporation , violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, 29 U.S.C , Sec. 151 , et seq. On May 4, 1964, a
hearing was held before Trial Examiner A. Bruce Hunt at Indianapolis , Indiana, at
which all parties were represented . Upon the entire record, and my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
Reilly Tar & Chemical Corporation , an Indiana corporation with its principal offices
in Indianapolis , Indiana , is engaged in the production and sale of coal tar products,
chemicals, and preserved wood products. The Respondent annually ships products
REILLY TAR & CHEMICAL CORPORATION 1505
valued in excess of $50,000 from its Indianapolis plants directly to points outside
Indiana. There is no dispute, and I find, that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE UNION
Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor
organization which admits to membership employees of the Respondent
III. THE UNFAIR LABOR PRACTICES
A. Background
During 1961, in Case No. 25-RC-2048, the Union won an election in a contest
with another labor organization and was certified as the representative of employees
in a production and maintenance unit at the Respondent's Maywood plant in Indian-
apolis The number of employees currently in the unit is approximately 135, and the
Union continues to be their representative. In the representation case, the unit was
not litigated, having been stipulated. The parties in that case also agreed upon the
following exclusions from the unit:
Office clerical employees, laboratory employees, college trainees, professional
employees, watchmen, foremen, guards, and supervisors as defined in the . . Act.
At all times material to the instant case, there were no college trainees employed
at the Maywood plant. Our issues involve the laboratory employees.
B. The issues
The issues are whether the Respondent, during the early part of 1964, invalidly
(a) refused to bargain with the Union as the representative of certain laboratory
employees at the Maywood plant, (b) interrogated and threatened laboratory employ-
ees concerning their union activities, and (c) assisted laboratory employees in
withdrawing their designations of the Union to represent them.
C. Events during 1964
During January, five technicians worked in the Respondent's laboratory. They are
Luis Alvaiez, Larty Ruble, Robert Skaggs, Ronald Stanley, and Charles Steele. Their
supervisor was Donald Colvin. Other employees in the laboratory are Sidney Mich-
elson, a chemist, who worked there at all material times, and Robert Allen, a techni-
cian leadman, who worked there prior to October 1963. During October, Allen
suffered a heart attack and, following his recovery, he worked in the clerical
department
On January 19, Stanley and Steele signed applications for membership in the
Union. On the next day, Alvarez and Ruble signed like applications The remain-
ing nonsupervisory employees named above, Allen, Michelson, and Skaggs, did not
sign union cards 1 On January 21 a union representative, William Newman, wrote
to the plant manager, C. A. Fisher, asserting that the Union represented a majority
of the laboratory employees, excluding the supervisor and chemist, and requesting
that a meeting be held for the purpose of collective bargaining. The letter was
received the next day. The Respondent did not reply in writing Fisher and New-
man talked several times however and their testimony concerning their conversa-
tions is conflicting. The conflicts need not be resolved. It suffices to say that New-
man orally renewed the request for recognition and that the Respondent asserts in
its brief that:
Fisher suggested [to Newman] that maybe they could get together and between
them determine whether the Union had representation or not. Newman said
he would have to let Fisher know about that because he was not in a position to
give an answer at that time. Newman never did advise Fisher of the Union
position
'The parties are agieecl that Michelson is a professional employee within the meaning
of Section 2(12) of the Act Section 9(b) of the Act provides " . That the Board
shall not (1) decide that any unit is appropriate for Icollective-bargaining] purposes if
such unit includes both professional employees and employees who are not professional
employees unless i majority of such professional employees vote for inclusion in such
unit, . "
783-133-GG-vol 151-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As will appear, Fisher conducted his own poll of the laboratory technicians. He
ascertained that the Union represented a majority of them.
Upon an undisclosed date shortly before Newman wrote to the Respondent, and
again shortly thereafter, Colvin, the supervisor in the laboratory, spoke with Steele
In the first conversation, Colvin said that if the Union should become the representa-
tive of the laboratory employees, the basis of compensation of those employees
would be changed from salary to hourly, that they would lose their sickness benefits,
that their pay would be docked for tardiness, and that their insurance benefits would
be changed to coincide with the benefits being received by employees in the produc-
tion and maintenance unit. In the second conversation, Colvin said that in the event
of unionization, the rules of the laboratory would be enforced strictly and that
there would be definite times for "coffee breaks" instead of the existing practice
whereby employees were permitted to obtain coffee whenever they desired.2
Within a day or two after Fisher received the letter from Newman, Fisher instructed
Colvin to bring the laboratory technicians to Fisher's office for individual interviews.
Fisher questioned the technicians in the presence of Colvin. Fisher prefaced his
questions with a single statement, i.e., that he had received a letter from the Union
in which the Union claimed to be the representative of the laboratory employees.
There are conflicts in the testimony concerning whether Fisher asked some employees
whether they had signed union cards, as the General Counsel contends, or whether
Fisher asked whether they were represented by the Union, as the Respondent con-
tends. The conflicts need not be resolved because there is no meaningful difference
in the nature of the inquiries. The record does not disclose the exact number of
employees whom Fisher interviewed. He testified that he interviewed at least five,
and the Respondent's brief fixes the number as "[b]etween five and seven ." I deduce
that the number is six. We have seen that seven is the maximum number of non-
supervisory laboratory employees. Ruble, Stanley, and Steele testified for the Gen-
eral Counsel that they were interviewed and that they disclosed to Fisher that they
had signed union cards.3 Fisher testified that Allen and Skaggs also were interviewed
and that those two employees told them that they were not represented by the
Union.4 Fisher testified further that he could not recall whether he interviewed
Michelson, the chemist, and it is reasonable to conclude that Michelson was not inter-
viewed because the Union had not asked in its letter of January 21 for a unit includ-
ing the chemist. Moreover, if Michelson had been interviewed, presumably he
would have answered Fisher's question in the negative because he had not signed a
union card, but the only employees who answered negatively were Allen and Skaggs.
The sole remaining employee is Alvarez, who was not a witness. It is reasonable
to conclude that he was interviewed because Fisher instructed Supervisor Colvin,
as Fisher testified, to bring the "lab employees down to [Fisher's] office" and because
Fisher would not have suspended the interviews until he had obtained an answer to
the question whether the Union represented a majority of the laboratory technicians.
Fisher's interview of Stanley consisted of more than Stanley' s answer to a question
whether Stanley had designated the Union to represent him. After the question and
answer, Stanley asked Fisher to relate "the advantages and disadvantages of belong-
2 These findings are based upon the reliable testimony of Steele, who testified also that
he had additional similar conversations with Colvin On the other hand, Colvin's testi-
mony differs As a witness for the Respondent, Colvin testified on direct examination
that he talked with Steele upon occasion, but he did not give his version of the conversa-
tions He did, however, specifically deny having made the remarks attributed to hint
by Steele On cross-examination, Colvin testified that he told his subordinates that, if
the Union should represent them, the basis of their compensation, hourly or salary, would
be subject to negotiation He testified further that lie could not recall whether he spoke
to the employees concerning insurance, sick leave, and coffee breaks Upon being shown
an affidavit which he had executed earlier, Colvin testified that he spoke to the employees
concerning insurance and coffee breaks, saying to them that the benefits they enjoyed
would become subject to negotiation if the Union should represent them On redirect
examination, Colvin testified that his remarks to the employees were made in response
to questions which they asked of him I cannot credit Colvin's testimony Unlike
Steele's version of the conversations, Colvin's testimony does not have the ring of truth
i Steele fixed the date of his interview as January 23 or 24 Ruble fixed the date of
his interview as "within a couple of days after" January 22 Stanley fixed the date of his
interview as February 3, but Fisher testified that he could not "be sure" that Stanley had
fixed the date correctly The record does not disclose any reason why Stanley's inter-
view would have been delayed for approximately 1 week
4 Colvin, who was present at the interviews, testified for the Respondent that Skaggs
said to Fisher that Skaggs had not signed a union card
REILLY TAR & CHEMICAL CORPORATION 1507
ing to a union " Fisher answered that the employees would be compensated on an
hourly basis rather than by salaries . Stanley asked about the possibilities of promo-
tion, and Fisher answered that "a union member would go further because a union
member had only so far he could go." 5
Ruble's father is a foreman at the plant . Ruble, age 21 , lives with his parents. He
and his father ride together to and from work. During the latter part of January and
early February, the father and son discussed the Union , usually as they rode together.
In the first such conversation , the subject of the Union was raised by the father, the
son never having mentioned the Union to the father . The elder Ruble asked whether
the son had joined, and received an affirmative reply. The father said he did not
`think it was such a good idea." In the initial or subsequent conversations, the
father suggested that the son withdraw from the Union , that the son seek other
employment , and that the son go to Fisher and discuss the son 's attitude toward the
Union . The son did not comply with the suggestion that he go to Fisher , but, as will
appear, the son was instrumental in a movement to have laboratory technicians
withdraw from the Unions
At about the time of Ruble's conversations with his father , he also had conversa-
tions with his supervisor, Colvin, about the advantages and disadvantages of union
representation . Upon one such occasion in Colvin's office, when Michelson, the
chemist, was present, Colvin said that "things were pretty lax" in the laboratory, that
they had been for a long time , and that he had been told that in the event of
unionization he would have to enforce the rules.7
On February 5, the Union filed with Board 's Regional Office a petition in Case
No. 25-RC-2574 alleging that the laboratory employees constitute an appropriate
unit and seeking certification as their representative . The petition contains a paren-
thetical statement that the laboratory employees "will be placed" in the production
and maintenance unit which the Union already represented . It should be recalled
at this point that the Union 's letter of January 21 requesting recognition contained no
mention of enlarging the production and maintenance unit to include the laboratory
employees . On February 10, the Respondent received a notice that a hearing in the
representation case would be held on February 14. In its brief , the Respondent
says that on February 10 a meeting was held at the Regional Office at which the
"Respondent agreed to a stipulation for an election to be conducted by the Board
[and that a] hearing was set for February 14, 1964, to determine the names of
employees eligible to vote."
On February 13, Alvarez , Ruble, and Stanley, who had signed applications for
union membership , and Skaggs , who had not done so, signed individual letters to the
Union withdrawing the applications . Copies of the letters were mailed to the
Regional Office and to the Respondent . The circumstances will be recited. That
morning Ruble asked Supervisor Colvin for a sheet of paper. Colvin asked why
Ruble wanted it, and Ruble replied that he "just wanted a piece of paper ." Somewhat
later, Ruble asked Michelson how to withdraw from the Union , and Michelson
replied that he did not know. Michelson told Colvin that Ruble wanted to compose
5 The findings concerning this portion of Stanley's interview are based upon his testi-
mony . On the other hand, Fisher testified that Stanley asked whether "his affiliation
with the union would have any effect on his advancement with the company," to which
Fisher replied that "it would have no effect" and that Stanley's advancement would
"depend on his self improvement, his work record and those things " Colvin, who wa.
present at the interview, did not testify about it. I cannot credit Fisher's version
Although there is no evidence of hostility on the part of the Respondent toward the
Union prior to the organizational activities among the laboratory employees, there is
substantial evidence that the Respondent voiced objections to those activities. Moreover,
Fisher's interviews of employees were not conducted for the legitimate purpose of enabling
the Respondent to decide whether it was obligated to bargain with the Union This is
apparent because Fisher learned in those interviews that the Union represented a majority
of the laboratory technicians, but the Respondent did not baigain. Instead, as will
appear, it assisted employees in withdrawing from the Union.
0 The findings concerning the conversation between the father and son are based upon
the latter's testimony. The elder Ruble was not a witness and, therefore, there is no
testimony by him which would aid me in determining whether he sought to speak to
his son as a father, as a foreman, or as both
7 The findings concerning Colvin's remarks are based upon Ruble's testimony On
the other hand, Colvin testified that he never said to an employee that the lax routine
in the laboratory would be "tightened up" in the event of unionization Michelson was
not a witness
1508 DECISIONS OF NATIONAL LABOR RELA'T'IONS BOARD
a letter to the Union withdrawing his membership. Colvin went to Ruble and
inquired whether Ruble wished to talk with him. Ruble answered affirmatively and
said that he, Alvarez, Skaggs, and Stanley desired to withdraw from the Union, but
that he did not know how to word the letters. Colvin said that he did not know
either, but that he would learn. Colvin reported the matter to Plant Manager Fisher,
who drafted the letter. Colvin gave the draft to Ruble. The latter showed the draft
to Stanley, who approved it. Colvin supplied paper and envelopes, and Ruble began
to type the letters in the payroll office, but his typing ability was slight and he turned
the task over to Stanley.8 After the letters were typed, Colvin supplied the pen with
which the employees signed. Colvin also supplied three stamps for the envelopes
addressed to the Union, the Respondent, and the Regional Office, and Colvin took
the letters to a post office where he mailed them. According to Colvin, the letters
were signed in the late afternoon when the employees were ready to go to their
homes, and he took the letters to the post office because the employees wanted the
copies to the Regional Office to be received the next day.
On February 14 the original letters were received by the Union and copies were
received by the Regional Office and the Respondent The record does not disclose the
hour at which the representation hearing was scheduled to begin that day, but there
is evidence by the Respondent that a union representative, Andy Turner, appeared
late and, with his appearance, the Respondent learned that he had filed a charge
against it that morning. The initial charge, filed by Turner and alleging invalid inter-
rogation of employees, bears a time stamp of 11:09 a m. During the hearing in the
representation case, the Union moved to amend its petition by striking the parentheti-
cal statement that the laboratory employees would be placed in the production and
maintenance unit. The Union asserted that the laboratory employees constitute a
separate appropriate unit. The Respondent objected to the motion, contending that
the Board should decide whether the laboratory employees should be within or out-
side the production and maintenance unit. After the hearing was concluded, Turner
filed an amended charge, reiterating the allegation in the original one and alleging
also that the Respondent had refused to bargain collectively and had sought to
undermine the Union's majority status.
On-March 23 the Regional Director issued the complaint in the instant case On
the next day, he dismissed the petition in the representation case.
D. The refusal to bargain collectively
1. The appropriate unit
We have seen that during 1961, by agreement among the Respondent, the Union,
and another labor organization, certain classifications of employees, including those
in the laboratory, were excluded from a unit of production and maintenance employ-
ees. We have seen too that during January 1964, the Union asked for recognition as
exclusive representative of the laboratory employees, excluding the supervisor and
chemist, and that during February it filed a petition in which it said that the laboratory
employees would be placed in the production and maintenance unit which the Union
already represented, but that at the representation hearing the Union reverted to its
original position that the laboratory employees constitute a separate appropriate unit.
The Respondent's position is not entirely clear. It's answer denies the allegation
of the complaint that the laboratory employees constitute an appropriate unit. It's
brief says that "a bona fide dispute over the appropriate unit" existed between it and
the Union, and that it's "position is now, and always has been, that" the Board should
decide the unit question and subsequently conduct an election. This assertion is not
supported by Plant Manager Fisher's testimony. He testified that after he received
the Union's request for recognition he told the Union's representative, Newman,
that "it would be desirable" to settle the Union's claim "without going through the
National Labor Relations Board." Moreover, the record is clear that Fisher, in talk-
ing with Newman, did not raise any question concerning the appropriateness of the
unit set forth in Newman's letter of January 21. Finally, the Respondent's brief
contains a section entitled "Conclusions of Law" in which conclusion No 2 is sub-
stantially identical with the paragraph of the complaint which alleges that the
laboratory employees constitute an appropriate unit .9
8 Upon earlier occasions, the Respondent had assisted employees in their personal
correspondence.
0 The brief contains six conclusions of law If they are proposed conclusions in con-
formity with Section 8(b) of the Administrative Procedure Act and Section 10242 of
the Board's Rules and Regulations, Series 8, as amended, I grant Nos. 1 and 2 and reject
the remainder
REILLI TAR & CHEMICAL CORPORATION 1509
The Respondent's laboratory technicians are compensated on a salary basis and,
as reflected by the remarks to them by their supervisor, Colvin, recited above, they
have other working conditions and benefits which differ from those of employees in
the production and maintenance unit. There appears to be no interchange between
the laboratory technicians and the employees in that unit, and, as we have seen, the
technicians were excluded from the production and maintenance unit in 1961. I find
that all laboratory employees at the Respondent's Maywood plant, excluding super-
visors and professional employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.10 Oliver Iron
and Steel Corporation, Berry Division, 104 NLRB 1043, United States Gypsum
Company, 114 NLRB 1285, 1291-92.
2. The Union's majority status
All of the laboratory employees other than Michelson and Colvin are technicians
They number six including Allen, the technician leadman. As recited above, during
October 1963 Allen suffered a heart attack and following his recovery he was worked
in the clerical department. At the time of the hearing, 6 or 7 months after the heart
attack, Allen had not resumed work in the laboratory. It is unncessary, however, to
decided whether Allen should be considered as having been a laboratory technician at
the time of the Union's request for recognition during January 1964. This is so
because the Union possessed majority status at that time regardless of whether Allen
be so considered. As we have seen, Alvarez, Ruble, Stanley, and Steele signed appli-
cations for membership in the Union For reasons which appear below, effect cannot
be given to Alvarez', Ruble's, and Stanley's letters withdrawing their applications.
I find that on January 20, 1964, and at all times thereafter, the Union was the duly
designated representative of a majority of the employees in the appropriate unit and,
pursuant to Section 9(a) of the Act, was the exclusive representative of all employees
in such unit for the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
The principal issues are whether the Union's majority status was destroyed by the
letters of three employees in which they withdrew their applications and whether the
Respondent's earlier refusal to bargain is immunized because of those letters. We
have seen that Plant Manager Fisher, following his receipt of the Union's letter
requesting recognition, questioned the laboratory technicians concerning their desire
for union representation. The only legitimate purpose of such interrogation would
have been to enable the Respondent to ascertain whether the Union possessed the
majority status it claimed, i e., whether the Respondent was required to bargain col-
lectively. Ofjner Electronics, Inc., 134 NLRB 1064, 1066. Fisher had no such
purpose in mind, as is apparent from his refusal to baigain with the Union after he
ascertained that it possessed majority status. Moreover, Fisher's inquiries of employ-
ees were not accompanied by assurances from him that his purpose was legitimate and
that they would not be subjected to reprisals for having designated the Union to
represent them. Blue Flash Express, Inc., 109 NLRB 591. I hold that Fisher's inter-
rogation of employees in his office, in the presence of Supervisor Colvin who had
brought them there individually, was clearly coercive and violative of Section 8(a) (1).
I hold also that Fisher's statement to Stanley that a nonunion employee would have
better chances for advancement with the Respondent than a union member, and his
statement that the basis of compensation would be changed in the event of unioniza-
tion, were likewise violative of the Act. Additionally, Colvin's remarks to Steele and
to a lesser extent to Ruble that, if the Union should become the representative of the
laboratory employees, certain working conditions would be changed and the rules in
the laboratory would be enforced strictly, violated Section 8(a)(1). The final issue
concerning allegedly coercive remarks involve the statements to Ruble by his father,
a supervisor. As recited, the father did not testify. The father's remarks, if made to
any employee other than the son, would constitute a clear violation of the Act. The
question is whether the father spoke as a supervisor or as a parent. I can understand
that the Respondent should not be held responsible for the father's inquiry of the
son whether the latter had joined the Union. But the father's remarks did not cease
with the question. The record is clear that the son had decided not to seek parental
guidance concerning the Union and that for an undisclosed number of days the son
"Colvin is excluded from the unit because of his supervisory status. Michelson, the
chemist, is excluded because he is a professional employee. See footnote 1.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not told his father of his application for union membership. When the son
answered the father's opening question by acknowledging union membership, it must
have been apparent to the father that he had touched upon a subject which the son
had chosen not to discuss with him. If the father had ceased his remarks at that
point, or had merely added, as he did, that he did not "think it was such a good idea,"
I should be inclined to dismiss the allegation of the complaint concerning the father's
remarks. The father, however, suggested that the son withdraw from the Union, that
the son find a job with another employer, and that the son have a talk with Plant
Manager Fisher. The latter remarks are coercive and on the record in this case are
not to be characterized as parental guidance. The son had been subjected to a
coercive inquiry by Fisher, and he was subjected to a coercive remark by his immediate
supervisor, Colvin, at about the time of his father's remarks Clearly, the father's
remarks were neither isolated nor innocuous. They violated Section 8(a) (1).
Turning to the events of February 13 when three employees signed letters to the
Union withdrawing their applications,11 and to the question whether the Respondent's
conduct in connection with those letters constituted an unfair labor practice, the perti-
nent inquiry "is whether the employees decide[d] of their own free will, independently
of employer solicitation, to withdraw their union designations." Martin Theatres of
Georgia, Inc., d/b/a WTVC, 126 NLRB 1054, 1058 Here the Respondent's refusal
to bargain with the Union upon learning of its majority status, coupled with the
coercive conduct of Fisher, Colvin, and the elder Ruble, require the conclusion that
the employees did not decide of their own free will to withdraw their membership
applications.12 Moreover, a leading role in securing the withdrawal letters was taken
by the younger Ruble who, in withdrawing, followed the explicit suggestion of his
father and the implicit suggestions of Fisher and Colvin.' I find that the Respond-
ent's participation in the preparation and mailing of those letters violated Section
8(a)(1).
In defense of its refusal to bargain, the Respondent places reliance upon the Union's
having filed a petition, upon the withdrawal of the petition, and upon the termination
of the representation proceeding without the conduct of an election. This reliance is
misplaced. A labor organization's "filing of a representation petition does not of itself
suspend an employer's bargaining duty unless there is other evidence of a good-faith
doubt" Irving Air Chute Company, Inc, Marathon Division 149 NLRB 627.
"The filing of a refusal to bargain charge stymies and supersedes the representation
case until the refusal to bargain case has been disposed of." Gotham Shoe Manu-
facturing Co., Inc., 149 NLRB 862. There was no bona fide issue to be resolved
by the representation case. The Respondent had learned from the employees before
the petition was filed that the Union possessed majority status in the unit which the
Union described in its letter of January 21. The Respondent did not raise any ques-
tion about the appropriateness of that unit until after the petition was filed, and it is
that unit which I find to be appropriate. It is true that the employees' letters withdraw-
ing their membership applications had been mailed by the Respondent so as to be
received by the Union and the Regional Office on the day of the hearing in the repre-
sentation case, but, for reasons recited herein, those letters did not serve to destroy
the Union's majority status and to establish a need for an election. I find that the
Respondent, by rejecting the Union's demand for recognition and collective bargaining
during January 1964, refused and continues to refuse, to bargain collectively in
violation of Section 8(a) (5) and (1) of the Act
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. All laboratory employees at the Respondent 's Maywood plant, excluding super-
visors and professional employees , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
"The fourth employee who signed such a letter, Skaggs, had not signed an application
'-I am not unmindful that Stanley testified that he withdrew his application of his
own free will On the other hand, Ruble avoided an answer to a question nhether he
withdrew of his own free will.
"The extent of the younger Ruble's participation in the withdrawal movement is not
set forth in the record Ruble's testimony that the "whole idea was [his] own" indicates
that he took a leading part Moreover, the Respondent says in its brief that "the mat-
ter of withdrawal was instigated by employee Larry M Ruble on February 13, 1964,
when he requested some paper for personal use "
REILLY TAR & CHEMICAL CORPORATION 1511
3. On January 20, 1964, the Union was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes of collective
bargaining.
4 By refusing to bargain collectively and by interfering with, restraining, and
coercing employees in the exercise of their rights under the Act, the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case and pursuant to Section 10(c) of the Act, and in
order to effectuate the Act's policies, it is hereby recommended that the Respondent,
Reilly Tar & Chemical Corporation, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive representative of all employees in
the appropriate unit.
(b) Interrogating and threatening employees concerning union activities.
(c) Soliciting and assisting employees to discontinue their union affiliations.
(d) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain collectively with Oil, Chemical and Atomic Workers
International Union, AFL-CIO, as the exclusive representative of all employees in
the aforesaid unit and, if an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at its Maywood plant, copies of the attached notice marked "Appendix." 14
Copies of said notice, to be furnished by the Regional Director for Region 25, shall,
after being signed by the Respondent's representative, be posted by it immediately
upon receipt thereof, and maintamed by it for at least 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees customarily are
posted. Reasonable steps shall be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any material.
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision what steps the Respondent has taken to comply herewith.16
14 If this Recommended Order is adopted by the Board, the words "as Ordered by" shall
be substituted for the words "as Recommended by a Trial Examiner of" in the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals,
the words "a Decree of the United States Court of Appeals, Enforcing an Order of" shall
be substituted for the words "as Ordered by."
11If this Recommended Order be adopted by the Board, this provision shall be modified
to read "Notify said Regional Director, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
As Recommended by a Trial Examiner of the National Labor Relations Board we
are posting this notice to inform our employees of rights guaranteed to them by the
National Labor Relations Act:
WE WILL NOT interrogate or threaten you concerning your union activities
WE WILL NOT solicit or assist you to discontinue your union affiliations.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in union
activities, or not to jom a union and not to engage in such activities.
WE WILL, upon request, bargain collectively with Oil, Chemical and Atomic
Workers International Union, AFL-CIO, as the exclusive representative of all
employees in the following bargaining unit-
All laboratory employees at our Maywood plant, excluding supervisors and
professional employees.
REILLY TAR & CHEMICAL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone
No. Melrose 3-8921.
The Annin Company, Division of Worthington Corporation and
United Association of Journeymen and Apprentices of the
Plumbing and Pipetitting Industry of the United States and
Canada, AFL-CIO. Case No. 21-CA-5661. April 9, 1965
DECISION AND ORDER
On December 14, 1964, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. He
also found that the Respondent had not unlawfully discriminated
against Donald W. Morton as alleged in the complaint and recom-
mended that that allegation be dismissed. Thereafter the General
Counsel and the Respondent filed exception to the Decision, and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
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
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions,- and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner and orders
that the Respondent, The Annin Company, Division of Worthington
Corporation, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner David Karasick in Los Angeles,
California, on May 4, 5, and 6, 1964, upon a complaint alleging that The Annin
151 NLRB No. 147.