The Howe Scale Co.

National Labor Relations Board - Board Decisions

Nov 15, 1961

134 N.L.R.B. 275 (N.L.R.B. 1961)

THE HOWE SCALE COMPANY 275
stated, Respondent did bargain about other matters, including the standard hour
system in general . In these circumstances , I need not decide whether Respondent's
bargaining technique, if adhered to, would have been consistent wtih good-faith
bargaining. I am convinced that in the situation here involved, it was not bad-
faith bargaining.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, my
Recommended Order, among other things, will direct that Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent refused to bargain with the Union in violation
of Section 8(a) (5) and (1) of the Act, my Recommended Order will require that
Respondent bargain with the Union, upon request, as the exclusive representative
of its employees within the appropriate unit concerning rates of pay, wages, hours,
and other terms and conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
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. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
is and has been at all times since its certification on March 16, 1959, the exclusive
representative of Respondent's production and maintenance employees for purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
2. By failing and refusing to furnish information requested by the Union as to
how its job rate classifications were arrived at; by changing the classifications for
piecework jobs and the minimum base rates of pay for those jobs and for timework
jobs without notice to the Union of its intention to do so and without furnishing
the requested information pertaining to the classifications of the piecework jobs;
by increasing the number of job rate stations for its timeworkers without notice to
or consultation with the Union; and by soliciting employees to bargain individually
with it, Respondent has refused to bargain with the Union in the appropriate bar-
gaining unit and has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a) (5) of the Act.
3. By the foregoing conduct, by warning its credit manager trainee that his wife's
union activities would have a bearing on his chances for advancement with Re-
spondent, and by threatening another employee that she would be the first to be
laid off if she did not abandon the Union, Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights guaranteed in Section 7
of the Act and thereby engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
The Howe Scale Company and District No. 8, International
Association of Machinists , AFL-CIO. Case No. 13-CA-3827.
November 15,1961
DECISION AND ORDER
On March 27,1961, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
134 NLRB No. 32.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and both parties filed briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modification noted in the
Order .2
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Howe Scale
Company, Chicago, Illinois, its, officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in District No. 8, International As-
sociation of Machinists, AFL-CIO, or in any other labor organization
of its employees, by discharging employees, or in any other manner
discriminating against them with respect to their hire or tenure of em-
ployment, or any other term or condition of employment.
(b) Premising any of its employees increased benefits as an induce-
ment to abandon or refrain from union representation and to bargain
directly with the Respondent concerning terms or conditions of
employment.
(c) Refusing to bargain collectively concerning rates of pay, wages,
hours of employment, or other conditions of employment with District
No. 8, International Association of Machinists, AFL-CIO, as the
exclusive representative of all employees at the Employer's sales and
service office at Chicago, Illinois, excluding office clerical employees,
professional employees, watchmen, guards, and all supervisors as de-
fined in the National Labor Relations Act, as amended.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the above-named Union, or any other labor or-
ganization , to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
1 Pursuant ' to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Rodgers and Leedom].
s In view of the extent of the labor practices engaged in by the Respondent which, in
its effort to rid itself of the Union , encompassed violations of Section 8(a) (1), (3), and
(5) of the Act , we have modified the Order as hereinafter set forth . N L R B v. Entwistle
Mfg. Co , 120 F . 2d 532 ( C.A. 4) ; cf . N.L.R.B. v. Empress Publishing Company, 312
U.S. 426.
THE HOWE SCALE COMPANY 277
poses of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
rights 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 modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act, as amended :
(a) Offer to Edward J. Spicer immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy" for any loss of pay he may have suffered by reason of
the discrimination against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due in
accordance with this Order.
(c) Upon request, bargain collectively with District No. 8, Inter-
national Association of Machinists, AFL-CIO, as the exclusive rep-
resentative of all employees in the bargaining unit herein found ap-
propriate for_ the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and condi-
tions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(d) Post at its office and plant in Chicago, Illinois, copies of the
notice attaiched hereto marked "Appendix." 3 Copies of said notice, to
be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent, be posted by it im-
mediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to-employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 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 has bargained directly
and individually with employees.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL offer to Edward J. Spicer immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights or privileges, and we
will make him whole for any loss of earnings suffered as a result
of his discharge.
WE WILL NOT discourage membership by any of our employees
in District No. 8, International Association of Machinists, AFL--
CIO, or in any other labor organization, by discharging employ-
ees or by discriminating against them in any other manner in
regard to their hire or tenure of employment, or any term or
condition of employment, except as authorized by Section 8 (a) (3)
of the National Labor Relations .Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT by any of the foregoing conduct or by promises or
grants of ecbnomic benefit, or by any other conduct, interfere with,
restrain, or coerce employees in the exercise of their rights of self-
organization, to form, join, or assist District No. 8, International
Association of Machinists, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to, engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
WE WILL upon request bargain with District No. 8, ' Interna-
tional Association of Machinists, AFL-CIO, as the exclusive
representative of all our employees in the appropriate bargaining
unit described below, with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and,. if an
understanding is reached, embody such understanding in a signed
agreement. The appropriate unit is:
All employees employed at our sales and service office located
at Chicago, Illinois, exclusive of office clerical employees,
professional employees, watchmen, guards, and all supervisors
as defined in the National Labor Relations Act.
All our employees are free to become or remain , or to refrain from
becoming or remaining, members of District No. 8, International
Association of Machinists, AFL-CIO, or any other labor organiza-
tion, except as provided under Section 8 (a) (3) of the National Labor
THE HOWE SCALE COMPANY 279
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
THE HOWE SCALE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on August 23, 1960, and an amended charge filed Septem-
-ber 2, 1960, against the Respondent, The Howe Scale Company, Chicago, Illinois,
and duly served, the General Counsel issued a complaint on October 7, 1960, alleg-
ing that the Respondent had engaged in unfair labor practices in violation of the
National Labor Relations Act (61 Stat. 136). The charges were filed by District
No. 8, International Association of Machinists, AFL-CIO.
As ultimately amended, the complaint alleged violations by the Respondent of
Section 8(a) (1), (3), and (5) of the Act by: (1) the termination of employment of
Edward J. Spicer for his union or concerted activities, (2) refusal to recognize and
bargain collectively with the Union, (3) attempting to_bargain directly with em-
ployees represented by the Union, and (4) promising benefits to employees if they
bargained directly with the Company. Respondent duly filed its answer denying
the allegations of unfair labor practices.
Upon due notice, a hearing was held on November 15, 1960, at Chicago. Illinois,
before the duly designated Trial Examiner. The General Counsel, the Respondent,
.and the Union were represented at the hearing, participated therein, and were
afforded full opportunity to present and to meet material evidence, to engage in oral
argument, and to file briefs and proposed findings. The General Counsel has filed a
brief and the Respondent comments, on January 9, 1961, which have been
considered.
Upon the record thus made, and after consideration of all the evidence, the
contentions of the parties, and observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Howe Scale Company is a corporation duly organized under and existing by
virtue of the laws of the State of Delaware, with a factory and office at Rutland,
Vermont, where it is, and at all times material herein has been, engaged in the
business of manufacturing weighing devices.
Respondent maintains sales and service offices in 26 major cities of the United
States, including 1 such office in Chicago, Illinois, which is the facility involved in
the present proceeding.
Respondent's gross annual volume of business exceeds $5,000,000 and in the
course, conduct, and operation of its business, Respondent annually ships goods
directly from one State to another at an annual rate in excess of $50,000.
It is admitted that the Respondent is, and at all material times has been, engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that District No. 8, International Association of Ma-
chinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
M. THE UNFAIR LABOR PRACTICES
The Issues
On August 12, 1960, after having for several years recognized and dealt with the
Union pursuant to contracts and Board certification as bargaining representative of
the service employees in its Chicago office, the Respondent declined to accord fur-
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther recognition to the Union and contemporaneously discharged Edward J. Spicer,
the union representative or chairman , in the shop.
The General Counsel contends that for some time prior to August 1960, the Re-
spondent had sought to bypass the Union and deal directly with employees con-
cerning terms and conditions of employment , and had promised employees increased
benefits if they would get rid of the Union and bargain directly with the Respondent,
and that its August 12, 1960, action was so motivated.
The Respondent denies these allegations. -It contends that it withdrew recognition
of the Union because of good-faith doubt that the Union represented a majority
of the employees, and that Spicer was discharged because he threatened an employee
if he did not join the Union.
No substantial issue is presented with respect 46 the appropriateness of the bar-
gaining unit or the Union's actual representation therein on August 12, 1960, the
date of the Respondent's final refusal to bargain with the Union. The bargaining
unit, comprising all service employees of the Respondent at its Chicago plant, ex-
cluding all office clerical employees, professional employees, watchmen, guards, and
supervisors as defined in the Act, was established by the Board, following the usual
statutory proceedings in 1956. On August 28, 1956, after election, the Union was
certified by the Board in such unit, and the parties entered into successive collective-
bargaining contracts. The Respondent recognized and dealt with the Union, pur-
suant to the certification and contracts until August 12, 1960, on which date it re-
fused to recognize the Union further. Though the Respondent's answer formally
denies the appropriateness of the unit, that position is not otherwise pressed, and is
found to be unsubstantiated. It is consequently concluded that the aforementioned
unit, more specifically described hereinafter, constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
The evidence establishes the Union's majority as of August 12, 1960. At that time,
including Spicer, there were six employees in the appropriate bargaining unit.' As of
that date the Respondent was withholding union dues through August 1960, pur-
suant to voluntary checkoff authorizations signed by four of those six employees.
The Respondent discontinued the dues checkoff effective September 1, 1960. Never-
theless the four employees continued to tender their dues directly to the Union
after August 1960. As of the date of the hearing all were members of the Union
in good standing . If Spicer is excluded as having been properly discharged, three of
the five persons in the bargaining unit were union members on August 12, 1960 and
at the time of hearing. It is consequently found that on August 12, 1960, and at all
times material herein, the Union represented a majority of the employees in the
appropriate unit and was therefore the exclusive representative for purposes of col-
lective bargaining of all employees in such unit within the meaning of Section 9(a)
of the Act.
The substantial and material issues to be resolved are therefore (1) whether the
Respondent sought to deal directly with employees and promised them benefits if
they would do so rather than through the Union; (2) whether the Respondent's re-
fusal to deal further with the Union was motivated by a good-faith doubt as to the
Union's continued majority; (3) or whether the refusal and the contemporaneous dis-
charge of Spicer were motivated instead by the Respondent's desire to rid itself of
the Union:
The Events
The Union was certified by the Board on August 28, 1956. Thereafter a contract
was executed by the parties effective September 1, 1956, through August 31, 1957,
succeeded by another 1-year contract in 1957.
Among other provisions the 1957 contract contained clauses on the following
subjects: (1) Maintenance of union membership; (2) voluntary checkoff of union
dues and initiation fees by the Respondent, this provision to be effective for 1 year
or until the termination of the collective-bargaining agreement-whichever occurred
sooner ; (3) a grievance procedure which provided, inter alia, that "Discharged em-
ployees shall have the right to be represented and heard within three (3) days of
their discharge"; and (4) an automatic renewal clause providing that the agree-
ment would continue in effect until August 31, 1958, "and from year to year there-
after unless written notice or termination or notification is given by either party to
the other on or before sixty (60) days prior to August 31, 1958 or the same date of
any subsequent year "
In the summer of 1958, following timely notice by the Union to reopen, the
parties met several times to negotiate a new contract. In these neeotiations. pursuant
to suggestion of the Respondent that problems could be more effectively worked
out on a local level if the relations remained "informal," and concurred in by the
Union, the parties arrived at an oral agreement to follow the provisions of the 1957
THE HOWE SCALE COMPANY 281
written contract, including the renewal provision, for the succeeding contract year.
The Respondent thereafter continued to deal with the Union and with Shop Chair-
man Spicer as representative of the unit employees, and to follow the terms of the
written agreement.
In June 1959, the Union again gave timely notice of intent to reopen the contract.
Several meetings between company and union representatives were held, including
meetings with a Federal mediator when the parties found themselves in disagree-
ment on the wage issue. The credited testimony of Assistant Union Business Rep-
resentative William Britt and Shop Chairman Edward Spicer is that these negotia-
tions concluded with the Union accepting the Respondent's contention that it was
not in a position to grant a wage increase; that it was then agreed to continue the
old contract in effect, the Union indicating that it would seek to reopen the wage
issue in 6 months. Thereafter the relationship between the parties continued as
before. In November 1959, conditions improving, the Respondent granted a wage
increase which it negotiated with the union representatives, Spicer and Britt.
The following year on June 25, 1960, within the 60-day period provided by the
contract, the Union, following the' procedure of previous years, notified the Re-
spondent of its intention to reopen the agreement for changes upon its expiration
date, August 31, 1960.1 The Respondent did not acknowledge or reply to this letter.
About July 27, 1960, having heard nothing from the Respondent, Union Repre-
sentatives Britt and Spicer called on A. R. Haskins, district manager of the Chicago
office, and presented their proposals for the new contract. Haskins told Britt and
Spicer that the proposals should be sent to the home office at Rutland, Vermont-
that he no longer had authonty to negotiate.
On August 9, 1960, Britt forwarded to Robert H. Zitzman, the Respondent's di-
rector of personnel at Rutland, a letter accompanied by the Union's contract pro-
posals and requesting the arranging of a meeting for the purpose of negotiations.
The letter stated, in relevant part:
As a result of a Shop Meeting held by the employees of Howe Scale Company,
who are members of District #8, International Association of Machinists,
AFL-CIO, the following agenda of proposals was formulated. I am, herewith,
sending you a copy of these proposals and request that we arrange a meeting
to enter into negotiations of a new contract at your earliest possible
convenience.
Personnel Director Zitzman received this letter on August 11. Upon its receipt
_Zitzman telephoned Chicago District Manager Haskins, and asked him who com-
posed the Union's shop committee. Haskins replied, according to Zitzman, that it
was Spicer. On the same day, under circumstances discussed post, Zitzman directed
-that Spicer be discharged without being given any reason therefor. In accordance
with this directive Service Manager Jenson of the Chicago office discharged Spicer
at the end of the workday on Friday, August 12. In response to Spicer's inquiry
as to the reason for the action, Jenson replied, apparently truthfully, that he did
not know. Simultaneously, on August 12, Zitzman wrote to the Union, stating that
the Respondent had reason to believe that the Union did not represent a majority
,of the employees, and that the Respondent was therefore declining to meet with the
Union unless it was certified as the bargaining agent.
The next workday after Spicer's discharge was Monday, August 15. About noon
,on that day Spicer and Union Representative Britt came to the plant and saw Dis-
-trict Manager Haskins, in an effort to learn the reason for Spicer's termination.
Haskins told Spicer and Britt that he had just returned from vacation that morning
and that he knew "absolutely nothing" about the reason for the action, but that it
could not have had anything to do with Spicer's work. Haskins suggested that Britt
.call Personnel Director Zitzman in Rutland? Britt and Spicer then left the plant
and went to the union office, from which, later in the day, Britt telephoned Zitzman.
In the telephone conversation Britt asked Zitzman for an explanation of the dis-
,charge. Zitzman declined to discuss the matter with Britt, stating as his reason that
1 The letter stated in relevant part:
Kindly accept this as our official notice of intent to open for changes the Agreement
in existence between your Company and District No. 8, International Association of
Machinists at its expiration date August 31, 1960
Hoping to meet with you at your earliest convenience with regard to this matter. . . .
Though Haskins told Britt and Spicer that he knew nothing about the discharge,
Zitzman had in fact informed Haskins of it on August 11. There is conflict in the testi-
mony of Zitzman and Haskins as to whether Zitzman told Haskins the reason for the
action . Zitzman 's testimony indicates that he did ; Haskins ' testimony is that he did not.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not believe that the Union represented the employees . The Union not yet
having received Zitzman 's August 12 letter, Zitzman read the contents of it to Britt
over the telephone . Pressed by Britt , Zitzman would only say that Spicer 's activities
in interesting himself in matters "not his concern " among such a small group of
employees, constituted intervention in affairs better handled directly between the
Company and the employees . However , Zitzman denied Britt 's suggestion that this
amounted to a discharge of Spicer for his union activities. Zitzman told Britt that
the Union could file a petition for an election, but Britt declined to do so, saying that
the Union represented a majority of the men and that if there was any effort to
decertify, it should come from the employees. After some further discussion the
conversation terminated without change in the situation. Later in the day Britt wrote
to the Respondent formally requesting Spicer's reinstatement ; on August 18 Zitzman
replied declining to consider the request "in the absence of a formal certification con-
firming that you are the current bargaining agent."
The Solicitation of Employees To Forgo Union Representation
For some time prior to August 1960, the Respondent had been seeking to per-
suade the Union and the employees to forgo formal union representation. It has
been seen that the verbal arrangements initiated in 1958 were made at the Re-
spondent 's suggestion that under an "informal " procedure problems could be worked
out more effectively on a local level.
In the spring of 1959 Shop Chairman Spicer and employee Brown were given
merit wage increases. Later, in May of that year, employee Walter Karpinski asked
District Manager Haskins why he had not received a raise. In the course of their
discussion Haskins suggested to Karpinski that the Respondent might be able to
give employees more money if they did not have the Union as bargaining agent.
On several occasions in the spring of 1960 Haskins suggested to Karpinski that the
Union offered employees no substantial service, telling Karpinski that in an operation
such as the Respondent 's, a bargaining agent was unnecessary.
Shop Chairman Spicer's credited testimony is that in July 1959, prior to the be-
ginning of negotiations for contract renewal that year, Personnel Director Zitzman,
adverting to the smallness of the group involved and the inconvenience of distance,
sought to persuade Spicer of the desirability of having the men deal directly with the
Respondent, rather than through the Union. On that occasion Zitzman told Spicer
that under such an arrangement the Respondent would be in a better position to
grant wage increases and improved working conditions than it could through the
Union. Spicer declined Zitzman 's suggestion.
In July 1960, during the pendency of the Union's request for negotiations for
contract changes, Haskins again broached the subject to Shop Chairman Spicer.
Haskins stated that the Respondent could "do more" for the employees if they would
deal directly with the Respondent and "drop the Union." Spicer responded to the
effect that it would be preferable to complete the negotiations.
The Employment Contracts
In their meeting in late July 1960, in which Union Representatives Britt and
Spicer presented to District Manager Haskins the Union's contract proposals for
the coming contract year, Haskins informed the union representatives that the
Respondent was preparing an employment agreement which the employees would
be required to sign, and Haskins explained the matter. The agreement bound the
employee, as a condition of employment , not to engage in any business competitive
to the Respondent or to seek to divert the Respondent's customers within a radius of
150 miles of places of business of the Respondent, for a period of 1 year following
the termination of the employee's employment by the Respondent. Haskins agreed
to supply a copy of the agreement to Britt.
Several days later, about July 29, a meeting of employees was held in the plant
by Haskins at which Haskins explained the agreement and told the employees that
they would be required to sign it. Shop Chairman Spicer was present, and he and
Haskins discussed the matter at the meeting. Haskins gave Spicer a copy of the
agreement for forwarding to the Union's attorneys, and Spicer told Haskins that
the employees would wait for a clarification from the Union's legal department. The
employees were later notified by the Respondent that unless they signed the em-
ployment agreement by September 1 they would be discharged. Haskins testified
that he did not call in the union representatives to explain this matter prior to the
meeting because he "did not feel it was a union matter."
THE HOWE SCALE COMPANY 283
Concluding Findings
The General Counsel contends that (1) the Respondent promised its employees
increased economic benefits if they would get rid of the Union and deal directly
with the Respondent; (2) the Respondent bypassed the Union in connection with the
signing of the employment agreements, previously described, and thus attempted
to negotiate directly with its employees; (3) the Respondent discharged Union Chair-
man Spicer because of his protected union activities and for the purpose of under-
mining the prestige, influence, and majority status of the Union; and (4) the
Respondent's refusal to continue recognition of the Union was not motivated by good-
faith doubt of the Union's majority status, but instead reflected rejection of the prin-
ciple of collective bargaining.
The Respondent contends (1) that the attempts of Zitzman and Haskins to deal
unilaterally with individual employees reflect nothing more than their opinions that
individual bargaining might be more successful than collective bargaining; and that
nothing was offered or promised and no threats made; that Shop Chairman Spicer
was discharged for cause, namely, that Spicer had threatened an employee, Thomas
Clemens, if Clemens did not join the Union; and (2) that Zitzman questioned the
Union's majority status in good faith, for reasons hereinafter given.
The controlling principles are simply stated. So far as the prohibitions of this
statute are concerned, an employee may be validly terminated for any reason or
conduct not involving protected concerted activity or discouragement of union
membership. The existence or claimed existence of nondiscriminatory ground for
termination may not, however, be utilized as justification or pretext for discrimina-
tory termination. An employer may rightfully withhold recognition from a majority
union and request an election if he has bona fide doubt as to the Union's majority.
However, where the refusal constitutes a rejection of the principle of collective
bargaining or is merely to afford time to take action to dissipate the Union's repre-
sentative status, it is a violation of the Act. Joy Silk Mills, Inc., 85 NLRB 1263,
185 F. 2d, 732 (C.A.D.C.); N.L.R.B. v. Irving Taitel, Ruth Taitel, and Jerome Taitel,
d/b/a I. Taite'l and Son, 261 F. 2d 1 (C.A. 7), cert. denied 359 U.S. 944.
On the basis of these principles it is my conclusion that the Respondent dis-
charged Spicer discriminatorily and refused to bargain in violation of the Act.
I further find that Spicer's asserted threat to Clemens was seized upon as a pretext
to disguise his termination for illegitimate considerations. It is therefore unneces-
sary to decide the disputed question as to whether Spicer actually engaged in the
conduct charged by the Respondent. It is further found that the Respondent's refusal
to continue recognition of the Union was based on the Respondent's desire to be rid
of the Union and not upon bona fide doubt as to the Union's majority status.
The refusal to bargain and the discharge of Spicer must be considered together;
they represent a single pattern of action by the Respondent.
We have seen from the statements of its officials, heretofore recounted, that the
Respondent desired to eliminate the Union as bargaining representative and deal
directly with the employees. Such action, occurring at times when the Respondent
was under contract with the Union, some when it had pending before it union
bargaining proposals, is inconsistent with a conclusion of good-faith dealing. On
August 12, 1960, the date when the Respondent refused to deal further with the
Union, the Union had been the certified and contractual representative of the unit
employees for 4 years. To the knowledge of the Respondent four of the six unit
employees were paid-up members of the Union through the month of August 1960.
The Respondent could therefore have had no reasonable doubt on August 12, 1960,
that the Union represented a majority of the employees.
The reasons ascribed by Personnel Director Zitzman for the Respondent's asserted
doubt as to the Union's continued majority status are not sustained. These were
(1) that he had heard nothing from the Union since the mediation sessions in 1959;
(2) that when a wage increase was given in November 1959 Union Representative
Britt did not object or thank the Respondent for it; and (3) that District Manager
Haskins had reported in the spring of 1960 that employees Brown and Spicer had
expressed disinterest in the Union. These assertions cannot be credited as explana-
tory of the Respondent's action.3
In his initial testimony Zitzman cited as additional ground contributing to his doubt
as to the Union's majority, an alleged offer by Britt, in their telephone conversation of
August 15, to "drop the union activity" If the Respondent would reemploy Spicer. How-
ever, on cross-examination Zitzman modified this testimony. Britt admitted telling
Zitzman in this conversation that he thought Spicer's job more important than the Union,
and that be would "rather see the Union lose the bargaining rights than to see Mr. Spicer
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the discharge and refusal to bargain the parties were operating under
the terms of the written contract. It would therefore be irrelevant if the Respond-
ent had heard nothing from the Union after the mediation sessions . But the
assertion itself is inaccurate. The Respondent dealt with the Union after the medi-
ation sessions . In November 1959 District Manager Haskins negotiated with Union
Representatives Britt and Spicer concerning the allocation of the wage increases
granted at that time. The significance of the fact, if it is a fact, that Britt did not
object or thank the Respondent in_connection with the wage increases, is therefore -
not apparent. Throughout the contract year the Respondent continued to check off
union dues, pursuant to the contract, of those employees who had voluntarily
authorized it. Throughout the spring and early summer of 1960 Personnel Di-
rector Zitzman was kept advised by District Manager Haskins of efforts by Spicer
to enroll new employees in the Union. The Respondent was therefore aware of the
Union's activity, and could have had no bona fide doubt as to the Union's continuing
interest in representing the employees. In any event, any such doubts could not have
survived the receipt of Britt's letters requesting the opening of negotiations for the
new contract and enclosing the Union's proposals. The Respondent did not answer
Britt's letter of June 25. Indeed, it made no response at all until August 12, after
Britt'had written a second time and enclosed proposals for the new contract. The
Respondent's answer then was to refuse to negotiate and simultaneously to discharge
Spicer. The Respondent's 6 or more weeks of intervening silence is not consistent
with the present claim of good-faith doubt as to the Union's majority. Good-faith
doubt would have dictated immediate response stating candidly the Respondent's
position. Dilatory and belated assertions rebut claims of good-faith doubt. N.L.R.B.
v. National Motor Bearing Company, 105 F. 2d 652, 660 (C A. 9); N.L.R B. v.
Whittier Mills Company et al., 111 F. 2d 474, 478 (C.A. 5); N.L.R.B. v.'McQuay-
Norris Manufacturing Company, 116 F. 2d 748, 752 (C.A. 7).
Nor could the Respondent have had any genuine question as to Spicer's and
Brown's union desires. It asserts that it discharged Spicer for actions supportive of
the Union. Brown's union dues were being voluntarily checked off by the Respond-
ent continuously until the Respondent terminated the checkoff on September 1, 1960.
The employees took no action to repudiate the Union; the Respondent did not
avail itself of ready procedures to test the Union's status. As the Board said in a
similar situation in Toolcraft Corporation, 92 NLRB 655, 656:
The alleged dissatisfaction of the employees did not result in an attempt to
change or eliminate their bargaining representative by a rival union or by a
decertification petition. Nor did the Respondent, while asserting that it desired
a Board certification to resolve its alleged doubt, seek to file an employer petition
for that purpose, although fully aware of the availability of such procedure.
These circumstances are indicative of absence of good faith. See also Square D
Company, 105 NLRB 253, 256.
It is concluded that the Respondent's refusal to bargain with the Union was not
motivated by bona fide doubt as to the Union's majority but rather by desire to under-
mine the Union's status. The Respondent's testimony as to its motivation is not
credited. It is further concluded that the discharge of Spicer was in implementation
of the Respondent's unlawful purpose.
Spicer was the Union's representative in the shop: As the General Counsel puts
it, he was the Union. The Respondent dealt with him regularly in that capacity.
The Respondent desired to discontinue relations with the Union. The Respondent
suggested to the employees that it could provide greater benefits for them by direct
dealings. These overtures being unsuccessful in producing employee repudiation of
the Union, the Respondent discharged Spicer and simultaneously refused to deal
further with the Union. The Union was thus, with one measure, eliminated root
and branch.
The Respondent's justification for the discharge of Spicer, namely, that he threat-
ened an employee and the Respondent in good faith terminated him for that reason,
is not credibly supported. That an employee may properly be discharged on such
ground is unquestioned. However occasion may not be seized upon as a pretext to
rid an employer of union supporters or the Union itself. The evidence requires the
conclusion that the Respondent so used it here. As the court of appeals stated in
N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C.A. 3) : "It matters not
that for reasons apart from union activity an employee deserves summary discharge
if as a fact the reason was union activity."
lose his job," but credibly denied offering to abandon representation in return for Spicer's
reinstatement. In any event, the refusal to bargain on August 12 could not have been
motivated by events on August 15.
THE HOWE SCALE COMPANY 285
In the first place, Zitzman's statements to Britt in their telephone conversation
of August 15, 1960, previously recounted, indicate, despite Zitzman's disclaimer,
that it was Spicer's interest in maintaining collective representation in preference
to individual dealing that constituted the reason for the discharge. In the second
place, the Respondent, by relieving local officials of any authority in the matter, made
it impossible for anyone on behalf of Spicer to discuss the discharge except by long-
distance telephone or, written communication. By refusing to deal with any repre-
sentative of Spicer it required him either to forget about the matter, to attempt to
learn the reason for his discharge, and to present his case himself and by long
distance, or else to travel to Rutland, Vermont, to discuss the matter in person. The
presentation of these alternatives is not reflective of good faith, or normally expec-
table personnel action in legitimate circumstances. In addition, the refusal to permit
Spicer to be represented in discussing his discharge was violative of his right under
the collective-bargaining contract which, under the terms of the understanding, was
effective until August 31, 1960. Article IV, section 5, of that agreement, after pro-
viding for grievance and arbitration machinery, states the following:
Discharged employees shall have the right to be represented and heard within
three (3) days of their discharge. [Emphasis supplied.]
In addition, the, circumstances under which the discharge was assertedly decided
upon do not reflect normally expectable action.
. Spicer was an employee of 8 years' standing, whose services had always been
satisfactory. Personnel Director Zitzman's testimony is that around August 1 or 2,
1960, he learned from District Manager Haskins that Spicer had told employee
Clemens, in sum, that Clemens had "better" join the Union or the employees would
be "rough" on him or "foul up his work." 4 Upon receipt of this information,
according to Zitzman, he immediately decided to discharge Spicer who, Zitzman
asserts, had been warned by him about July 1959, for an asserted threat of similar
nature .5 Because the decision could have "ramifications," Zitzman took the pre-
caution of clearing the discharge with various of his superiors in Rutland, including
the Respondent's executive committee and its president. Zitzman then notified
Haskins and Jenson of the decision and directed the discharge to be made, at the
same time cautioning Jenson not to give any reason for the action.
Zitzman conducted no investigation. He did not question Clemens; he did not
interview Spicer or ask Haskins to do so. His sole source of information was the
report supplied to him by Haskins. Zitzman was not aware of and did not ask the
source of Haskins' information. He was in no position to evaluate the authenticity
of the report, or even to judge whether Haskins could. The alacrity with which
Zitzman thus accepted the charge without investigation as substantial basis for the
termination of an old employee with a satisfactory work record, contrasts signi-
ficantly with his care to secure advance approval of his superiors because of potential
"ramifications." I conclude that Zitzman's interest was not in the guilt or inno-
of Spicer but in securing apparent cause for effecting his termination in con-cence
nection with the elimination of the Union as bargaining agent. The incident with
Clemens was therefore seized upon as a pretext and the discharge was consequently
an unfair labor practice.
This is not to say that the Respondent could not have discharged Spicer if it in
good faith believed that he had threatened employees. It is only to say that it
did not do so here, and that an employer may not discharge an employee for
illegitimate reasons even though valid ground may exist.
Upon the basis of the foregoing findings it is concluded that the Respondent
discharged Spicer and refused to bargain with the Union in order to discourage
membership in, the Union, to undermine the prestige, influence, and the majority
status of the Union, and to rid itself of the Union. It is further concluded that
the Respondent promised its employees increased benefits if they would get rid of
the Union and bargain directly with the Respondent. By these acts the Respondent
interfered with, restrained, and coerced its employees, and discouraged membership
in and refused to bargain collectively with the Union, in violation of Section 8(a) (1),
(3), and (5) of the Act.
* Zitzman first testified that Haskins told him of this occurrence in a telephone conversa-
tion about August 11, 1960, concerning the Union's letter of August 9, referred to supra,
enclosing its contract proposals for the coming contract year. Zitzman later amended
this testimony to place the occurrence in another telephone conversation with Haskins
about August 1 or 2
5 Zitzman testified that this 1959 incident occurred during a negotiation session with
Britt and Spicer. Britt and Spicer denied the incident. I credit their testimony.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employment Contracts
The General Council additionally contends that the employment agreements
which the Respondent required employees to sign affected terms and conditions of
employment, as such were a matter of concern to the Union, and that in its actions
in the matter the Respondent bypassed the Union and thus further violated Section
8(a)(1) and (5) of the Act. I do not find these contentions sustained.
Despite the testimony of District Manager Haskins to the effect that he did not
call in the union representatives to explain the agreements prior to the July 29
meeting because he "did not feel that it was a union matter," I find that the Union
was actually consulted concerning the agreements. Thus, Haskins explained the
proposal to Britt and Spicer in the meeting about July 27, discussed it with Spicer
in the employee meeting of the 29th, and gave Spicer a copy to forward to the
Union. Since Britt and Spicer were authorized union representatives, I find that
the Respondent dealt with them concerning the employment agreements and thus
in this respect complied with its obligations under the statute. It is consequently
found that the Respondent did not engage in unfair labor practices in connection
with the employment agreements. It will therefore be recommended that the
allegation of the General Counsel to this effect be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
and remedial action designed to effectuate the policies of the Act. Having found
that the Respondent discriminatorily discharged Edward J. Spicer on August 12,
1960, I recommend that the Respondent offer him immediate and full reinstatement,
without prejudice to his seniority or other rights and privileges, and make him
whole, in accordance with the Board's usual procedures and remedial policies, for
any loss of earnings occasioned by his discharge. I further recommend that Re-
spondent, upon reasonable request, make available to the Board and its agents,
all payroll and other records pertinent to -n analysis of the amount due as backpay.
It will be further recommended that the Respondent bargain collectively with
the Union upon request and embody any understandings reached in a signed agree-
ment.
• 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. District No. 8, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. All employees of The Howe Scale Company employed at its sales and service
office located at Chicago, Illinois, exclusive of office clerical employees, professional
employees, watchmen, guards, and all supervisors as defined in the Act, constitute
a unit appropriate for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
3. On and at all times since August 28, 1956, District No. 8, International Asso-
ciation of Machinists, AFL-CIO, has been the exclusive representative of all em-
ployees in the appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with District No. 8, International Asso-
ciation of Machinists, AFL-CIO, on August 12, 1960, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. By discharging Edward J. Spicer, thereby discriminating in regard to the hire
and tenure of Spicer's employment and discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the. Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)( I) of the Act.
UNITED FRUIT COMPANY 287
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not engage in unfair labor practices by requiring em-
ployees to sign employment agreements.
[Recommendations omitted from publication.]
United Fruit Company and National Maritime Union of America,
AFL-CIO. Case No. 92-RC-10379. November 15, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Jacob Lazarus, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case,' the Board finds :
1. The Petitioner seeks a single fleetwide unit of all unlicensed sea-
men employed aboard certain Honduran flag vessels which it alleges
are beneficially owned and controlled by the United Fruit Company,
here called UFCO, through its wholly owned foreign subsidiaries,
Empresa Hondurena do Vapores, S.A.' and Balboa Shipping Cor-
poration. UFCO contends that it is not, as alleged, the employer of
the seamen involved and neither owns nor, as a time-charterer, op-
erates the ships covered by the petition. Both UFCO and Empresa
argue basically that as Empresa is a foreign corporation, is the em-
ployer of the seamen, and is engaged in its own business of operating
and chartering the vessels, and as the vessels are of Honduran registry
and the seamen of foreign nationality, the maritime operations in-
volved are not within the jurisdiction of the Labor Act. Thus, the
issue raised here concerns not only the effect upon the Act's jurisdic-
1 On May 31, 1960 , the Board held a consolidated hearing for purposes of oral argu-
ment in West India Fruit and Steamship Company, Inc., 130 NLRB 343; Peninsular &
Occidental Steamship Company, 132 NLRB 10 ; and Eastern Shipping Corporation, et al.,
132 NLRB 930 , on certain issues concerning the jurisdiction of the Act over ships
flying the flags of nations other than the United States and concerning policy considera-
tions involved in the Board 's assertion of jurisdiction over such vessels . Similar issues
are raised in this proceeding . Thus , as it appeared that United Fruit Company, the
Petitioner , and Sociedad Naccional de Marinos de 1:Iondoras , a Honduran organization,
might have a substantial interest in the outcome of the West India and other cases re-
ferred to above, they were invited to participate as amicus curiae in the oral argument.
Only the Petitioner accepted the invitation and appeared by counsel at the hearing. See,
West India Fruit and Steamship Company , Inc., supra, footnote 5.
As set forth in our decision in the West India case, supra , footnote 4, the Attorney
General of the United States was permitted to intervene in this and the other three cases
referred to above and in his brief , filed on November 18, 1960, presented on behalf of
the Department of State and Department of Defense certain considerations of inter-
national law and national defense policy bearing upon issues common to the four cases.
z Empresa Hondurena de Vapores , a Honduran corporation , moved to intervene on the
ground that it was the employer of the employees covered by the petition . Empresa was,
without opposition , permitted to intervene at the hearing and has participated fully at
all stages of this proceeding.
134 NLRB No. 25.