United Brass Works, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1960

126 N.L.R.B. 537 (N.L.R.B. 1960)

UNITED BRASS WORKS, INC 537
90 NLRB 289 1 shall recommend also that the Respondent preserve and make
available to the Board or its agents , upon request, for examination and copying, all
payroll records , social security payment records, timecards , personnel records and
reports, and all other records necessary to analyze the amounts of backpay due
under the terms of these recommendations
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is reasonably to be anticipated from its past conduct, the preven-
tive purposes of the Act may be thwarted unless the recommendations are coexten-
sive with the threat To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act
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 Local Umon No 361, the American Bakery and Confectionery Workers' In-
ternational Umon , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act
2 By discriminating in regard to the hire and tenure of employment of employee
Tommy Trotter , thereby discouraging membership in the above-named labor organ-
ization, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act
3 By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7 ) of the Act
[Recommendations omitted from publication I
United Brass Works, Inc. and Sheet Metal Workers Local No.
159, Sheet Metal Workers International Association , AFL-CIO
and Harry Baldwin , Robert E. York, Keneth T. Farabee,
Tommy Meyers, Buddy F. Robbins. Cases Nos 11-CA-1430,
11-CA-1354, 11-CA-1355, 11-CA 1392, 11-CA-1393, and 11-CA-
1394 February 9, 1960
DECISION AND ORDER
On September 2, 1959, Trial Examiner David London 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 copy of the Inter-
mediate Report attached hereto The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recoim fended that the complaint be dismissed with
respect to them Thereafter, the Respondent filed exceptions to the
Intermediate Report
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 Leedom and Members Rodgers and
Jenkins]
126 NLRB No 59
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Respondent's exceptions, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommendations of the Trial
Examiner.
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, United Brass
Works, Inc., Randleman, North Carolina, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their membership in, or
activities on behalf of, Sheet Metal Workers Local No. 159, Sheet
Metal Workers International Association, AFL-CIO, or any other
labor organization, in a manner constituting interference, restraint,
or coercion.
(b) Instructing employees to observe and collect information about
the union activities of fellow employees and to report to Respondent
these observations and findings.
(c) Engaging in surveillance of any place of union assembly at
or about the time of any scheduled meeting.
(d) Threatening employees with discharge if they engaged in union
or concerted activities.
(e) Promising employees wage increases if they abstained from
engaging in union or concerted activities.
(f) Discouraging membership in Sheet Metal Workers Local No.
159, Sheet Metal Workers International Association, AFL-CIO, or
in any other labor organization, by-discharging or refusing to rein-
state its employees because they engaged in union or concerted
activities.
(g) Refusing to bargain collectively with the Sheet Metal Workers
Local No. 159, Sheet Metal Workers International Association, AFL-
CIO, as the, exclusive representative of the employees in the appro-
priate bargaining unit by taking action without giving notice to,
and.consulting with, said Union with respect to rates of pay, wages,
hours of employment, and other conditions of employment, or by
i we adopt pro forma the following findings to which no exceptions were filed : (1) The
Respondent, by engaging in unlawful interrogation and surveillance and by instructing
employee Cagle to observe and collect information about the union activities of fellow
employees, violated Section '8(a) (1) of the Act; (2) the Respondent did not violate the
Act in discharging Baldwin or in refusing to reinstate Farabee; and ( 3) the Respondent,
except for its refusal to furnish wage rates and its unilaterally granting of wage increases,
did not violate Section 8 ( a) (5) of the Act.
UNITED BRASS WORKS, INC. 539
refusing to furnish said Union, upon request, relevant wage informa-
tion pertaining to its employees.
(h) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Sheet Metal Workers Local No.
159, Sheet Metal Workers International Association, AFL-CIO, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act, as 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 :
(a) Offer to Robert E. York, Buddy F. Robbins, and Tommy
Meyers immediate and full reinstatement to their former jobs without
prejudice to any rights and privileges previously enjoyed.
(b) Make whole Robert E. York, Buddy F. Robbins, and Tommy
Meyers for any loss of pay they may have suffered by reason of
Respondent's discrimination against them in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
due and the rights to reinstatement under the terms of this Order.
(d) Upon request, bargain collectively with Sheet Metal Workers
Local No. 159, Sheet Metal Workers International Association, AFL-
CIO, as the exclusive representative of all the employees in the appro-
priate unit, and embody in a signed agreement any understanding
reached.
(e) Post at its plant at Randleman, North Carolina, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by Respondent, be posted immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
2In 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."
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, as to what steps
it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violation of the Act not found herein.
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 NOT coercively, or otherwise unlawfully, interrogate
our employees concerning their membership in, or activities on
behalf of, Sheet Metal Workers Local No. 159, Sheet Metal
Workers International Association, AFL-CIO, or any other labor
organization.
WE WILL NOT discourage membership in the above-named labor
organization, or any other labor organization, by threatening
our employees with reprisals, or by discharging or refusing to
reinstate them, if they engage in union or other concerted
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Sheet
Metal Workers Local No. 159, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organization, to bar-
gain 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 protection, or to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer immediate and full reinstatement to Robert E.
York, Buddy F. Robbins, and Tommy Meyers, without prejudice
to any rights and privileges previously enjoyed, and will make
them whole for any loss of pay suffered as a result of our dis-
crimination against them.
WE WILL bargain collectively upon request with Sheet Metal
Workers Local No. 159, Sheet Metal Workers International Asso-
ciation, AFL-CIO, as the exclusive collective bargaining repre-
sentative of the employees in the appropriate unit described
UNITED BRASS WORKS, INC. 541
below, and, if any understanding is reached, embody such under-
standing in a signed agreement. The appropriate collective
bargaining unit is :
All production and maintenance employees at our Randle-
man plant, excluding office clerical employees, guards, watch-
men, and all supervisors as defined in the Act.
UNITED BRASS WORKS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by the Union and the individual Charging Parties above
named, the General Counsel of the National Labor Relations Board , by the Regional
Director for the Eleventh Region , issued a consolidated complaint herein against
United Brass Works, Inc., hereinafter called Respondent , alleging that Respondent
had violated Section 8(a) (1), (3 ), and (5 ) and Section 2(6) and ( 7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. The complaint charges,
in substance , that: (1) by specifically alleged conduct Respondent interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed by Section
7 of the Act; ( 2) on and since August 1, 1958, Respondent refused to bargain in
good faith with Sheet Metal Workers Local No . 159, Sheet Metal Workers Inter-
national Association , AFL-CIO, herein called the Union, the exclusive collective-
bargaining representative of an appropriate unit of Respondent 's employees; (3) on
or about August 29, 1958 , Respondent discharged its employees Robert E . York and
Harry Baldwin because of their membership in, and activities on behalf of, the
above-named Union; (4) between October 9 and October 24, 1958, following an
unfair labor practice strike of Respondent 's employees , Respondent refused to rein-
state Keneth T . Farabee, Buddy F. Robbins, and Tommy Meyers , following their
unconditional offer to return to work, because they engaged in concerted activities
with other employees for the purpose of collective bargaining and other mutual aid
and protection . By its answer , Respondent denied that it had committed the alleged
unfair labor practices.
Pursuant to notice , a hearing was held at Greensboro , North Carolina , on March
24 and 25, 1959 , before the duly designated Trial Examiner . The General Counsel
and Respondent were represented by counsel , and were afforded full opportunity to
participate in the hearing and to introduce relevant evidence bearing on the issues.,
The parties failed to avail themselves of the opportunity accorded them to argue
the case orally at the close of the hearing, or to file briefs herein.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
United Brass Works, Inc., is, and has been at all times material herein , a North
Carolina corporation engaged in the business of manufacturing brass and cast iron
valves and machine parts at its plant and principal office in Randleman, North
Carolina. During the year preceding the filing of the complaint herein Respondent
shipped finished products valued in excess of $600,000 from its Randleman plant
to points outside the State of North Carolina . I find that Respondent is, and has
1 During the hearing ruling was reserved on Respondent 's motion to strike the portion
of Robbins ' testimony pertaining to a conversation with one Wright The motion is
hereby granted.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been at all times material herein , engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers Local No. 159 , Sheet Metal Workers International Associa-
tion , AFL-CIO, herein called the Union , is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Prefatory Statement
Respondent opened its plant at Randleman, North Carolina, in January 1958 2
after removing its operations from Brooklyn, New York, where it had been previ-
ously engaged in the same business. On April 16, the Union filed a petition with
the Board seeking to be certified as collective-bargaining representative for Respond-
ent's production and maintenance employees.3 Following a Board-ordered election
,on July 24, which the Union won by a vote of 19 to 9, that organization was, on
August 1, certified as collective-bargaining representative of the following appro-
priate unit: All production and maintenance employees at Respondent's Randleman
plant, excluding office clerical employees, guards, watchmen, and all supervisors as
defined in the Act.
Interference, Restraint, and Coercion
Union organizational activity among Respondent's employees began on or about
April 15, when John Cagle, Jr., was informed by fellow employees Robert E. York,
Tom McKenzie, and Tommy Meyers, that they were planning to have a meeting at
the home of Julius Brigman , also employed by Respondent. About 12 employees
attended that meeting, including Meyers, York, and Robbins, three of the alleged
discriminatees herein. Other meetings of the Union were held at York's home
late in April, twice during May, and once after the Board election on July 24. Two
meetings of the Union were held at the nearby White House Grill.
Before Cagle became a member of the Union, Jerome Berkelhammer, assistant to
the president of Respondent and in charge of its labor relations, asked Cagle whether
employees Farlowe, Rich, and Lambert were in favor of the Union.4 Cagle made
inquiry of these men, ascertained they were not in favor of the Union and so
reported to Berkelhammer. During one of these conversations, Berkelhammer
asked Cagle to keep his "ears open in the bathroom and try to hear everything that
was said." Later, at about the time that Cagle became a member of the Union,
Harry Berkelhammer, Respondent's vice president, asked him whether he "had heard
anything about the employees organizing a union."
During the evening of July 23, the night before the election, the Union held a
meeting at the White House Grill at which approximately 16 persons were in
attendance. When employee Robbins was about to enter the well-lighted front door
of the grill, he observed Jerome Berkelhammer seated in his automobile parked in
front of the grill's main entrance. Seated in other cars nearby were William
Berkelhammer, Respondent's secretary-treasurer, and Stanley Fromberg, foreman
of the assembly department. Several of these officials were still there when the
meeting adjourned. Jerome Berkelhammer admitted that he knew there was going
to be a union meeting at the grill, that he saw all the employees who testified that
they had observed him there, but stated that he was there merely out of "curiosity,
to see what was going on." Among the men that Jerome Berkelhammer observed
leaving the meeting were York and Baldwin, who the General Counsel alleges were
discriminatorily discharged on August 29, about 2 weeks after the parties began
negotiation for a collective-bargaining agreement.
On the entire record I find that by Jerome Berkelhammer's and Harry Berkel-
hammer's interrogation of Respondent's employees concerning their union activities,
by Jerome Berkelhammer's instructions to Cagle to observe and collect information
about the union activities of fellow employees, and by engaging in surveillance of
the union meeting at the White House Grill, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act
and thereby violated Section 8(a) (1) thereof.
2 Unless otherwise noted, all references to dates herein are to the year 1958.
i This fact has been officially noted from the Board's file in Case No. 11-RC-1113.
a Though Berkelhammer denied making the inquiries I credit Cagle's testimony pertain-
ing to these incidents.
UNITED BRASS WORKS, INC. 543
The Discharges of York and Baldwin
Robert E. York was employed by Respondent on March 27, 1958, as a worker
on the assembly line. He was hired at a $1.10 an hour, the rate at which all other
production employees were hired, and was told that his pay would be increased
approximately every 30 days if he "earned it." York became interested in the Umon
about 2 weeks later and made his home available for union meetings in April, twice
in May, and once after the July 24 election . At that election, he served as a union
observer and was thereafter elected to, and served as a member of, the union
negotiation committee which met with Respondent on August 13 and 20.
When York ascertained that other employees were getting 21/z- and 5-cent raises
he inquired of Supervisor Fromberg, on two occasions, why his hourly rate was
not being increased while that of the other men was. Fromberg informed him
that it was because of his "attitude and loyalty to the company." On the second
occasion, about 2 weeks before he was discharged on August 29, York asked
Fromberg to arrange an appointment for him to see Mandelkorn, the plant super-
intendent , so that he could find out why he was not getting the raises that the
other employees were receiving. York made his inquiry of Mandelkorn the same
afternoon and was told that four men had told Mandelkorn that York "was the
union leader in the bunch." York denied being such leader and asked for, but
was denied, an opportunity to confront his accusers. Instead, Mandelkorn informed
him that he would check the information with the four men "and if he found out
that [York] wasn't the ring leader, that he would bring [his] pay substantially up
with the rest of the boys, but if he found out that [he] was, and they were telling
the truth, that he would fire [him]."
On August 29, as York was returning from the bathroom, Fromberg told him
that he and Harry Berkelhammer, Respondent's vice president, "had been time
checking [him] for bathroom privileges and that [he] had been overtaking
[his] time." About 20 minutes later, Fromberg called York to his office and in-
formed him that he was being "let go for lack of work."
Jerome Berkelhammer testified that Respondent's operations and production
schedules were "keyed towards inventory" from which all orders for its products are
promptly filled. When first questioned as to the condition of the inventory during
August, he testified as follows: "Our inventory was fine. We were in some in-
stances over-inventoried; maybe perhaps on one or two items we were not in as
good condition as we had hoped, but in general we were in good inventory shape.
We had no reason not to be." By his further testimony, however, Berkelhammer
sought to establish that Respondent's inventory in August was excessively high and
that it was for that reason that he authorized Fromberg to dispense with the services
of two men and left the selection of the discharges to Fromberg.
Fromberg testified that he selected York and Baldwin for termination because
they were the two men "who could be spared the easiest" and that he arrived at
that conclusion by using the same test he invoked in determining whether a man
was entitled to receive an increase in pay. In furtherance of its defense, Re-
spondent offered undisputed evidence that during August it had 30 to 31 employees
in the plant. Following the discharge of York and Baldwin, further reductions were
made reducing the staff to 26 rank-in-file employees which number had not been
exceeded at any time thereafter to the time of the hearing herein. On the entire
record I am constrained to find that some reduction in the staff was economically
justified on August 29, leaving for consideration only the question of whether the
selection of York and Baldwin for discharge was discriminatorily made.
In dealing with that phase of the case, I conclude that the facts heretofore found
clearly established a prima facie case of discrimination in the selection of York
for discharge on August 29. That Respondent had knowledge of York's extensive
union activity, including his role as union observer at the election and as a member
of its negotiating committee, cannot be challenged. Indeed, Mandelkorn was of
the opinion that York "was the Union leader in the bunch." When there is added to
these findings Mandelkorn's threat to fire York if the information he had that York
was the Union's ringleader was confirmed, it became incumbent upon Respondent to
come forward with evidence to establish that York's selection was made for a
nondiscriminatory reason.
The only evidence offered by Respondent to establish the reason for York's
selection for termination was that given by Fromberg. Fromberg testified, as has
already been indicated, that he selected York for discharge for the same reason
that he had not previously recommended him for an increase of pay, namely, lack
of merit. I find, however, that York was not granted any increase such as had been
given to practically every other employee because of any lack of merit but, as
Fromberg himself stated on or about August 15, because of York's "attitude and
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[lack of] loyalty to the Company." By that statement, Fromberg foretold what
Mandelkorn informed York a few hours later, that he would be fired because he
was a "ringleader" for the Union.
Fromberg's entire testimony, and particularly that pertaining to his appraisal of
York's services, was not given in a manner to convince me of its truthfulness, and
I therefore do not credit the reasons which he assigned for selecting York for
discharge. In any event, even if it be assumed, arguendo, that York's services were
so lacking in merit as to warrant his selection for discharge, such a finding would
not entitle Respondent to a dismissal of this portion of the complaint if, in fact, it
was York's union activity rather than his inefficiency that was the motive for the
termination. "It is well settled that an employer violates Section 8(a)(3) by dis-
charging or refusing to reinstate an inefficient employee if the employers' reason for
so doing is not the employees' inefficiency but his union affiliation or activity.
N.L.R.B. v. Ele'ctr'ic City Dyeing Co., 178 F. 2d 980 (C.A. 3); N.L.R.B. v. Dixie
Shirt Company, 176 F. 2d 969, 973-974 (C.A. 4); Edward G. Budd Manufacturing
Co. v. N.L.R.B., 138 F. 2d 86, 90, 91, (C.A. 3), cert. denied 321 U.S. 773. The
critical question is the employers' true motive. As the court said in the Electric City
case, supra, 178 F. 2d at page 983, . . . it matters not that for reasons apart from
union activity an employee deserves summary discharge if as a fact the reason was
union activity." N.L.R.B. v. L. Ronney & Sons Furniture Manufacturing Co., 206
F. 2d 730 (C A. 9). See also N.L.R.B. v. Jones Sausage Company, et al., 257 F. 2d
878 (C.A. 4). On the entire record I find that York was discharged on August 29
because of his union activity, and that by doing so Respondent violated Section
8(a)(1) and (3) of the Act.
Harry Baldwin was employed on March 25, 1958, in Respondent's assembly de-
partment at a $1.10 an hour. Between that date and the day of the union election,
July 24, he received two raises of 5 cents an hour and one of 2i/2 cents. He joined
the Union at an undisclosed date, attended the meeting at the White House Grill
on July 23, and observed Jerome Berkelhammer there in his convertible as hereto-
fore described
On August 29 Fromberg called Baldwin to his office and informed him that his
services would not be required after that day for "various reasons and lack of work."
Though Fromberg's reference to "various reasons" appears suspect when viewed in
light of the apparent competent services rendered by Baldwin as shown by the three
wage increases received by him, I find that the General Counsel has not established
by a preponderance of the evidence that Baldwin was discharged for the reasons
alleged in the complaint.
The Refusal To Reinstate Strikers
At a union meeting held an evening or two prior to September 11, the membership
voted 14 to 1 to go out on strike in protest against the discharge of York, Baldwin,
and Cagle. Picketing by approximately 12 striking employees continued from
September 11 to about October 1. On or about October 20, and for a few days
thereafter, a single employee, Brigman, again picketed the premises.
During the strike period of September 11 to October 1, Respondent hired six
new employees as replacements for six of the strikers. During the negotiation ses-
sion of October 1, Jerome Berkelhammer offered to take back seven of the strikers
and on that day, or the next, and furnished the Union with a list designating the
seven men who would be returned to work. Four of the men refused the offer
and three accepted it. Among the strikers who were not named on the list afore-
mentioned were Keneth T. Farabee, Buddy F. Robbins, and Tommy Meyers. The
parties stipulated that these three men were all members of the Union, "went out on
strike, walked the picket line, and that Respondent knew it."
On or about October 8, Farabee asked Jerome Berkelhammer to be returned to.
his job. Berkelhammer declined to do so and told him that it had been reported
to him that Farabee had tried to run employees off the highway with his automobile.
When Farabee denied the accusation, Berkelhammer told him he would check on
the report and if he ascertained that it was not true, he would take him back to work.
When Farabee returned, Berkelhammer told him that his earlier reports had been
confirmed, and that because of that conduct he would not be rehired. Farabee
admitted that he had "all kinds of court records" on reckless driving. Though
denying that he had, during the strike, tried to run employee Allred off the highway,
Farabee admitted following Allred at a distance of about 3 yards while traveling
at a speed of about 90 miles an hour.
Between October 20 and October 30, employees Brigman, Robbins, and Meyers
appeared at Respondent's plant. Brigman, acting as spokesman for the group, told
Jerome Berkelhammer that the men had come to see if they could return to their-
UNITED BRASS WORKS, INC. 545
jobs. When Berkelhammer replied that Respondent had "no openings and no
place to put them," all three men left the premises.
Being unfair labor practice strikers, and absent any misconduct on their part
sufficient to bar reinstatement, Farabee, Robbins, and Meyers were entitled upon
their demand to be returned to their jobs notwithstanding the fact that Respondent
had hired replacements for them during the strike. Accordingly, I find that by
refusing to reinstate Robbins and Meyers following their demand for such rein-
statement, Respondent violated Section 8(a) (1) and (3) of the Act.
With regard to Farabee, however, I find that his admitted reckless driving in
pursuit of an employee in another automobile during the strike was conduct which
justified Respondent in denying his request for reinstatement. It will accordingly
be recommended that the portion of the complaint charging that Farabee had dis-
criminatorily been denied reinstatement be dismissed.
The Refusal To Bargain
Following the Union's certification as collective-bargaining representative on
August 1, the parties held their first meeting on August 13. The Union was repre-
sented by York, H. N. Fie, its business agent, and Mr. Bweler, regional director
of the Union's parent organization. The meeting was of short duration, lasting
approximately 15 minutes. Fie submitted a list of 11 subjects for collective
bargaining none of which were, however, discussed. Instead, Respondent asked for,
and the Union agreed to submit, a draft agreement for consideration by the Company.
During the meeting, Bweler asked Jerome Berkelhammer for the wage rates and
job classifications of the employees. Berkelhammer replied "that he had never
given that kind of information to a union and he wasn't going to give it to [them]."
The Union submitted its proposed contract at the next meeting held on August
20, while Respondent came to the meeting of September 4 with a draft which
however was not submitted to the Union until the meeting of September 9. Addi-
tional conferences were held September 25 and October 1.5
It would serve no useful purpose to make detailed findings concerning the manner
in which agreement or disagreement was reached on all the subjects discussed at
these meetings. It is sufficient to find that by the time of the union meeting just
prior to the strike which began September 11 agreement was reached on several
subjects but not on seniority, working hours, holidays, wages, break periods, or the
rehiring of York and Baldwin. However, following the meeting of September 25
and October 1 agreement was reached on all subjects except wages.
On October 1, after the bargaining session , Fie reported the status of the nego-
tiations to some of the employees who were stationed nearby and asked whether
they were willing to return to work without any wage increase. The men declined
to do so unless they were given at least a 5-cent increase. Fie reported this decision
to Berkelhammer who refused to grant any increase in pay. However, on October
15, Respondent unilaterally, and without notice to the Union, granted an increase
of 5 cents an hour to seven employees.
The complaint alleges that Respondent refused to bargain in good faith with
the Union by reason of the following conduct: (a) Respondent's refusal of the
Union's request on or about August 13 and August 20 for a list of job classifications
and wage rates of the employees in the bargaining unit; (b) the unilateral increases
in wages granted to employees on October 15; (c) that Respondent merely went
through the motions of collective bargaining and that the totality of its conduct
manifested an intention not to bargain in good faith and a refusal to bargain in
good faith.
Considering these allegations seriatim, it has already been found that Respondent
unequivocally refused to furnish the desired wage information when it was requested
on August 13. At the August 20 meeting, during the discussion of wage rates,
York began calling off the wages of the different men and "the Company neither
affirmed nor denied" what York reported. Fie, the Union's principal spokesman,
having no knowledge of the accuracy of York's report, asked Jerome Berkelhammer
for the wage rates. Berkelhammer replied that the requested information was in the
possession of one Stone who had left the office and that he, Berkelhammer, did not
have the information. The requested data was not furnished the Union upon
either of these occasions. Throughout the hearing, however, Respondent main-
5 Though the parties stipulated early in the hearing that an additional bargaining
conference was held on October 6, both Fie and Jerome Berkelhammer, the principal
spokesmen for the respective parties, testified that no meetings were held after October 1.
5 54461-60--vol 126-36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained its contention that because it constantly shifted its employees from one position
to another, it had no job classifications. At the September 25 meeting Jerome
Berkelhammer offered to give Fie the names and wage rates of the employees and
was told by Fie that "it [didn't] matter."
Nothwithstanding this belated offer, Respondent's earlier refusal to furnish the
wage rates, especially its unequivocal refusal of the request of August 13, when
viewed in the context of Respondent's unfair labor practices herein found, convince
me that the refusal was imposed to hinder the Union in its efforts to intelligently
bargain for the employees in the unit. By that refusal, Respondent violated Section
8(a)(1) and (5) of the Act.
On October 15 Respondent granted wage increases of 5 cents an hour to seven
of its employees. The only defense to that conduct was Jerome Berkelhammer's
testimony that these increases were granted "in accordance with the custom which
[Respondent] had in effect all the time," and that they were granted "strictly on
merit." However, "it is now beyond dispute that an employer is under a duty to
bargain with the representative of its employees with respect to individual merit
increases." General Controls Co., a corporation, 88 NLRB 1341, citing N.L.R.B. v.
J. H. Allison & Company, 165 F. 2d 766 (C.A. 6); see also Armstrong Cork Com-
pany v. N.L.R.B., 211 F. 2d 843 (C.A. 5). Accordingly, I find that by unilaterally
granting these wage increases Respondent violated Section 8(a)(1) and (5) of
the Act.
There remains for consideration the allegations of the complaint that from August
1 Respondent went through the motions of collective bargaining only, and that the
totality of its conduct manifested an intention not to bargain in good faith.
As I listened to the testimony pertaining to the meetings of the parties through
the conferences held on September 25, grave doubts were raised in my mind as to
whether or not Respondent had up to that time bargained in the good faith required
by the Act. At that point in the negotiations no agreement had been reached on a
number of subjects including seniority, holidays, vacations, and wages. However,
the undisputed and extremely sparse testimony pertaining to the only meeting that
followed established that the parties on October 1 "agreed on everything in the
contract . . . except wages." Who made what concessions, and what the terms
of the agreement reached were, is not disclosed by the testimony. In the state of
the record as found here, I am constrained to conclude that the General Counsel has
not established the allegations of the complaint presently under consideration by a
preponderance of the evidence.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its business 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 Respondent discriminated with respect to the hire and tenure
of employment of York by discharging him, and of Robbins and Meyers by refusing
their request to be returned to work when they abandoned the strike, it is recom-
mended that Respondent offer each of the above-named employees immediate and
full reinstatement to their former or substantially equivalent position without
prejudice to his former rights and privileges, dismissing, if necessary in the case of
Robbins and Meyers, any persons hired by Respondent on or after September 11,
1958, who were not in Respondent's employ on that day. It is further recommended
that Respondent make York, Robbins, and Meyers whole 6 for any loss of pay they
have suffered by reason of Respondent's discrimination by the payment to each of a
sum of money equal to that which each would normally have earned as wages from
the date of the discrimination against him to the date of Respondent's offer of re-
instatement less his net earnings, if any, during said period. In the case of York,
the period shall be computed from August 29, 1958; 7 in the case of Robbins and
Meyers, from the day between October 20 and October 30, 1958, when they asked
to be returned to their jobs. The loss of earnings shall be computed in accordance
with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289.
e See Crossett Lumber Co 8 NLRB 440, 497-498
a Merchandiser Press, Inc ., 115 NLRB 1441.
IDAHO POWER COMPANY 547
It is also recommended that Respondent be ordered to make available to the
Board upon request, payroll and other records to facilitate the checking of the amount
of earnings due and Respondent's compliance with the recommended order for
reinstatement.
The unfair labor practices found to have been engaged in by Respondent are of
such a character in scope that, in order to insure the employees their full rights
guaranteed them by the Act, it is recommended that Respondent cease and desist
from in any manner interfering with, restraining, and coercing its employees in their
rights guaranteed by the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sheet Metal Workers Local No. 159, Sheet Metal Workers International As-
sociation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act, admitting to membership employees of Respondent.
2. By discriminating in regard to the hire and tenure of employment of Robert
E. York, Buddy F. Robbins, and Tommy Meyers, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. All production and maintenance employees at Respondent's Randleman plant,
excluding office clerical employees, guards, watchmen, and all supervisors as defined
in the Act, constitute an appropriate unit for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
5. On and since August 1, 1958, the above-named Union was, and presently is,
the exclusive representative of the employees in the above unit for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
6. By failing and refusing to bargain with the above-named Union pertaining to
wage increases granted to employees in the above unit, and by failing to furnish the
Union with requested wage information, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
8. Respondent has not engaged in any unfair labor practices in refusing to rein-
state Keneth Farabee or in discharging Harry Baldwin.
1 Recommendations omitted from publication. ]
Idaho Power Company and International Brotherhood of Elec-
trical Workers, AFL-CIO, Petitioner. Case No. 19-RC-2363.
February 9, 1960
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 Dan E. Boyd, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
126 NLRB No. 73.