The Hanson-Whitney Machine Co.

National Labor Relations Board - Board Decisions

Jul 8, 1938

8 N.L.R.B. 153 (N.L.R.B. 1938)

In the Matter of THE HANSON-WHITNEY MACHINE COMPANY and
INTERNATIONAL UNION7 UNITED AUTOMOBILE WORKERS OF AMERICA,
LOCAL No. 428
Cases Nos. C-455 and B-801.-Decided July 8,1938
Machine Manufacturing Industry-Interference , Restraint , and Coercion-
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding clerical and supervisory employees ; employees on hourly
wage basis ; similar vacation privileges and overtime wage ; general wage in-
crease-Representatives : proof of choice : comparison of list of employees with
union membership cards-Collective Bargaining : differentiated from adjustment
of individual grievances ; negotiation in good faith ; failure to make counter
proposals ; dilatory tactics; refusal to recognize representatives , as exclusive
representative ; special forms of remedial order : recognition as exclusive repre-
sentative ; negotiationInvestigation of Representatives : petition for, dismissed,
in view of order to bargain.
Mr. Bernard J. Donoghue, for the Board.
Hewes, Prettyman, Awalt and Smiddy, by Mr. Thomas Hewes, of
Hartford, Conn., for the respondent.
Mr. Frank P. Tucci, of New York City, for the Union.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges having been filed on behalf of International Union,
United Automobile Workers of America, Local No. 428, herein called
the Union, the National Labor Relations Board, herein called the
Board, by A. Howard Myers, Regional Director for the First Region
(Boston, Massachusetts), issued and duly served its complaint dated
December 6, 1937, against The Hanson-Whitney Machine Company,
Hartford, Connecticut, 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 (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. With reference to the unfair
8 N L. R . B., No. 18.
153
154 NATIONAL LABOR RELATIONS BOARD
labor practices, the complaint alleged in substance that the respond-
ent had refused to bargain collectively with the Union which had
been designated as their bargaining representative by a majority of
the respondent's employees in an appropriate unit. At the hearing,
the complaint was amended to include an allegation as to additional
acts of coercion and intimidation committed by the respondent's
supervisory employees. On December 13, 1937, the respondent filed
an answer which, as amended on January 4, 1938, and at the hearing,
denied that it had engaged in the unfair labor practices and alleged
that it has the right to bargain with individual employees who may
desire so to bargain with it.
On July 8, 1937, a petition was filed on behalf of the Union with
the Regional Director alleging that a question had arisen concerning
the representation of employees of the respondent, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the Act. On October 12, 1937, the Board, acting pur-
suant to Article III, Section 10 (c) (2), of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered that the
cases be consolidated for the purposes of hearing and, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of said
Rules and Regulations, ordered an investigation of representatives
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice. Notices of hearing on the
complaint and the petition were issued and duly served upon the
respondent and the Union.
Pursuant to notice, a hearing was held on January 4 and 5, 1938, at
Hartford, Connecticut, before Charles W. Whittemore, the Trial
Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. - The
rulings are hereby affirmed.
On February 11, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
Act and recommended that, upon request, the respondent bargain col-
lectively with the Union as the exclusive representative of the em-
ployees in the unit therein found to be appropriate for the purposes of
collective bargaining. Thereafter, the respondent filed exceptions to
DECISIONS AND ORDERS 155
the Intermediate Report and on April 12, 1938, together with the
Union, presented oral argument before the Board. The respondent
also filed a brief which has been considered by the Board. The Board
has also considered the exceptions to the Intermediate Report and
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Hanson-Whitney Machine Company, a Connecticut corpora-
tion, is engaged in the manufacture, sale, and distribution of
machines, tools, taps, thread gages, hobs, and other products at its
plant in Hartford, Connecticut. During the period between April 1
and June 30, 1937, the respondent secured 67 per cent of the materials
purchased by it from concerns located outside the State of Con-
necticut.
The value of the respondent's sales during 1937 was between
$800,000 and $1,000,000. During the period between April 1 and
June 30, 1937, 81 per cent of the respondent' s sales were shipped to
destinations outside the State of Connecticut.
H. THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America,
Local No. 428, is a labor organization affiliated with the Committee
for Industrial Organization. It admits to membership the respond-
ent's production and maintenance employees, exclusive of clerical and
supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The Union urged that the production and maintenance employees,
excluding clerical and supervisory employees, constitute a unit ap-
propriate for the purposes of collective bargaining. During its ne-
gotiations with the Union, which will be discussed below, the respond-
ent raised no objection to the appropriateness of this unit.
In its answer, the respondent denied that a unit consisting only of
production and maintenance' employees is appropriate. During the
hearing, however, it failed to adduce testimony to indicate the unit
it does deem appropriate. The respondent sought to show that each
of its' employees is a specialist in a particular task, and that therefore
the segregation of any employees into an appropriate unit is impos-
sible. The respondent's contentions, however, have no merit.
156 NATIONAL LABOR RELATIONS BOARD
All the employees in the unit proposed by the Union are paid an
hourly wage, receive time and a half for overtime, and are accorded
the same vacation privileges. In announcing a general wage increase
in March 1937, the respondent gave a 10-per cent increase in wages
to all the employees in this unit. Under the circumstances, we con-
clude that the unit proposed by the Union is appropriate for the pur-
poses of collective bargaining.
We find that all the production and maintenance employees of the
respondent, excluding clerical and supervisory employees, constitute
a unit appropriate for the purposes of collective bargaining and that
said unit will insure to employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
B. Representation by the Union of a majority in the appropriate unit
The complaint alleges that on and after July 2, 1937, the Union
had been designated by the employees in the appropriate unit as their
representative for the purposes of collective bargaining. The re-
spondent prepared lists of its employees in the unit for the pay-roll
periods ending July 2 and December 1, 1937, which were introduced
in evidence, as were the Union's membership cards and a list of its
members. The respondent did not question the authenticity of the
signatures on the cards nor did it dispute the Union's claims as to its
membership. A comparison of the membership cards with the list of
employees prepared by the respondent reveals that of the 134 em-
ployees in the appropriate unit on July 2, 1937, 115 were members of
the Union and that of the 139 employees in the appropriate unit on
December 1, 1937, 117 were members of the Union.
We therefore find that for the pay-roll period ending July 2, 1937,
and at all times thereafter the Union was the 'duly designated repre-
sentative of a majority of the employees in the appropriate unit and
that by virtue of Section 9 (a) of the Act, was the exclusive repre-
sentative of all employees in the unit for the purposes of collective
bargaining.
C. The refusal to bargain
1. The chronology of events
The Union commenced its organizational activities during the
spring of 1937 and by June of that year was prepared to negotiate
a contract with the respondent.
The Union and the respondent first met on June 16, 1937, the
Union being represented by a committee and the respondent by
Einar A. Hanson, its president, and-Leon B. Reed, its general man-
ager. The committee presented a proposed contract to the respondent
DECISIONS AND ORDERS 157
but its terms were not fully - discussed , as Reed requested additional
time to study its contents . The Union's representatives voiced no ob-
jection to adjourning the conference but insisted that the respond-
ent issue and post a signed statement recognizing it as the exclusive
bargaining representative of the employees in the appropriate unit.
The respondent did not question the Union 's majority, Reed stating
that it did not matter whether or not it represented a majority of
the employees . In view of the respondent 's subsequent refusal to
bargain with the Union as the representative of any of the employees
other than its members , Reed's statement clearly shows that the re-
spondent already had determined not to accord exclusive bargaining
recognition to the Union . The proposed contract was retained by
the respondent for study and the meeting, was adjourned.
The respondent did not post a notice of recognition , as the Union
had requested. Instead , on the following day, Reed gave the Union
committee an unsigned statement which read :
The management of Hanson Whitney Machine Co., upon
request, has met with a committee for the purpose of collective
bargaining on the subjects of wages, hours and working condi-
tions. The company will continue to carry on such negotiations
with this committee who declare that they are the chosen rep-
resentatives of a group of our employees , namely , the members
of International Union A. W . A. Local #428. The company,
however , reserves the right to meet and bargain individually
with any employee who may elect that method and relationship
with the management.
The parties resumed their negotiations on June 21, 1937 , the re-
spondent being represented by Winthrop H. Whitney , one of its di-
rectors, and by C. E . Wertman, its treasurer , in addition to Hanson
and Reed. There is testimony that Whitney stated that "he did not
see how a manufacturer could operate successfully if he had to deal
with a bargaining committee ." In spite of Whitney's denial, we
credit this testimony as it is consonant with the respondent 's efforts
to avoid bargaining with the Union . The respondent again asked
that the meeting be adjourned in order to give it an opportunity to
study the contract. The Union did not object , but insisted that the
respondent post the notice it had requested at the last meeting , claim-
ing that the unsigned statement which the Union committee had re-
ceived indicated that the respondent had -not' as yet recognized the
Union as the exclusive , bargaining representative of the employees.
At the next conference , Reed gave the Union 's representatives
printed copies of a pamphlet entitled "Industrial Relations Policy of
The -Hanson -Whitney Machine Company" which bore Hanson's
printed signature . The statement of policy incorporated the state-
158 NATIONAL LABOR RELATIONS BOARD
ment which Reed had given to the Union committee on June 17,
1937. It failed, however, to give the Union exclusive bargaining rec-
ognition. The pamphlet also set forth the respondent's policy with
reference to hours of employment, seniority rights, and other work-
ing conditions and reiterated the respondent's determination to bar-
gain individually with employees. Although the pamphlet stated
that the respondent intended to obey the letter and spirit of the
Act, it also pointed out that the Act does not compel agreements
between employers and employees nor any agreement whatever.
Subsequently, the respondent distributed copies of the statement
of policy among the employees at the plant. Meanwhile, the Union
continued to insist upon exclusive bargaining recognition while the
respondent maintained its original position that it would bargain
with the Union only as the representative of its members and that
it would bargain individually with any of the employees who desired
ato do so.
On July 1, 1937, the Union committee again met with the respond-
ent. The respondent again refused to grant the Union exclusive
bargaining. recognition and insisted upon its right to bargain with
employees individually. The Union's representatives pointed out
that the respondent's contentions were not in accord with the pro-
visions of the Act and again urged that the respondent recognize it
as the exclusive representative of the employees in the appropriate
unit. The pending negotiations terminated at this conference and sub-
sequently the Union filed charges and a petition for investigation and
certification with the Board.
2. Conclusions as to the refusal to bargain
The evidence clearly evinces the respondent's determination to evade
its duty to bargain in good faith with the Union. Although the,-re-
spondent met with the employees' representatives and politely listened
to their demands, it failed either to bargain or to attempt to reach
an agreement with the Union. The respondent's refusal to sign a
statement recognizing the Union as the employees' exclusive bargain
ing representative clearly indicates its lack of good faith. Moreover
apart from consenting to recognize the Union as the bargaining rep-
resentative of its members, the respondent failed to accept, reject, or
offer counterproposals to any of the Union's demands. As we have
previously held,' "To meet with the representatives of the - em-
ployees, however frequently, does not necessarily fulfill an employer's
obligations under this Section . . . Interchange of ideas, com-
munication of facts peculiarly within the knowledge of either party,
'Matter of S. L. Allen h Company, Inc., a Corporation and Federal Labor Union Local
No. 18526, 1 N. L. R. B. 714.
D3;f`ISIONS AND ORDERS 159
personal persuasion and the opportunity to modify demands in ac-
cordance with the total situation thus revealed at the conference is of
the essence of the bargaining process."
In its brief submitted to the Board, the respondent argues that
"while the employer must bargain collectively with representatives
of the employees, it is not a violation of that duty if lie bargains in-
dividually with such persons who are authorized to present grievances
to him." The respondent misconstrues the proviso of Section 9 (a) of
the Act which authorizes an individual or group of employees to pre-
sent grievances to an employer. We found above that the Union rep-
resents a majority of the employees in an appropriate unit and that it
is the exclusive representative of all the employees in such unit for the
purposes of collective bargaining. Upon request of the Union, the
respondent is under a duty to bargain with it as such and not solely
on behalf of its members. Although the resprnulent's employees.
either individually or in groups, may present their grievances to it.
the Act imposes upon the respondent the obligation to bargain ex-
clusively with the Union in respect to rates of pay, wages, hours of
eniplov,rnent, or other conditions of employment.
The respondent's claim to have bargained in good faith is likewise
negated by its issuance of the "Statement of Policy" during the course
of the negotiations and without consulting the Union's representa-
tives concerning it. The publication of this statement, which covered
many of the issues then under discussion with the Union, constituted
a clear evasion by the respondent of its duty to continue its negotia-
tions with the Union.
Accordingly, we find that the respondent has refused to bargain
collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit curl has thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
Tv. THE EFFECT OF TITE 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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the Union by a majority of the respond-
ent's employees as their representative, it is not necessary to con-
160 NATIONAL LABOR RELATIONS BOARD
sider the petition of the Union for certification of representatives.
Consequently, the petition for certification will be dismissed.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America,
Local No. 428, is a labor organization, within the meaning of Section
2 (5) of the Act.
2. All the production and maintenance employees of the respond-
ent, excluding clerical and supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3. International Union, United Automobile Workers of America,
Local No. 428, is and has been at all times since the pay-roll period
ending July 2, 1937, the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively with
International Union, United Automobile Workers of America, Local
No. 428, as the exclusive representative of all the employees in such
unit, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
5. By refusing and continuing to refuse to bargain collectively
with International Union, United Automobile Workers of America,
Local No. 428, as above stated, and thereby interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that The
Hanson-Whitney Machine Company, Hartford, Connecticut, and its
officers, agents, successors, and assigns shall: -
1. Cease and desist :
(a) From refusing to bargain collectively with International
Union, United Automobile Workers of America, Local No. 428, as the
exclusive representative of all its production and maintenance em-
ployees, except clerical and supervisory employees;
DECISIONS AND ORDERS 161
(b) From in any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with the International Union,
United Automobile Workers of America, Local No. 428, as the ex-
clusive representative of all its production and maintenance em-
ployees, except supervisory and clerical employees, with respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(b) Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of thirty (30) con-
secutive days, stating that the respondent will cease and desist as
aforesaid and will take the affirmative action set forth in paragraph
2 (a);
(c) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith. -
And it is further ordered that the petition for investigation and
certification of representatives be, and it hereby is. dismissed.