Welding & Industrial Products, Ltd.

National Labor Relations Board - Board Decisions

Oct 19, 1967

167 N.L.R.B. 881 (N.L.R.B. 1967)

WELDING & INDUSTRIAL PRODUCTS
Welding & Industrial Products , Ltd. & Carbonic
Products Corp . and Hawaii Teamsters & Allied
Workers, Local 996. Cases 37-CA-400,
37-CA-427, and 37-CA-428
October 19, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On April 14, 1967, Trial Examiner E. Don Wil-
son issued his Decision in the above-entitled
proceeding,, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices and recommended that those allegations of the
complaint be dismissed. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Deci-
sion with a supporting brief, the General Counsel
filed cross-exceptions and brief, and Respondent
filed a brief in opposition.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
We agree with the Trial Examiner that, although
the Union had cards from a majority of the em-
ployees in an appropriate unit for several months
before the election, which it subsequently lost, it did
not seriously request bargaining of a responsible
agent of the Respondent. There being no valid de-
mand to bargain by the Union and consequently no
refusal by the Respondent, we likewise find that no
8(a)(5) violation occurred.2 The Trial Examiner,
however, found a bargaining order appropriate
'We note that the Trial Examiner inferred knowledge by the Respond-
ent of the antiunion activity of Supervisor Queypo by reason of the small
size of the plant We need draw no such inference Clearly Queypo was a
supervisor and the Respondent may not disclaim his authority to speak for
it in these circumstances
2 We do not adopt the Trial Examiner's conclusion, apparently made in-
advertently, that the Respondent sought an election to gain time inasmuch
as it was the Union which filed the petition without any effort to request
recognition and bargaining
d There are two additional instances of 8(a)(1) activity during this
period Production Manager Hicks, as found by the Trial Examiner,
881
based on the Respondent's 8(a)(1) interference,
restraint, and coercion which destroyed the condi-
tions needed for a fair election. This preelection ac-
tivity was conducted almost entirely by supervisor
Queypo, who repeatedly threatened the trucking
employees he supervised with loss of work and loss
of the existing profit-sharing plan if the Union was
successful.3 Interference, restraint, and coercion of
this sort ordinarily justifies a bargaining order.
Queypo had, however, during the early stages of the
organizing campaign also been active on behalf of
the Union. According to his testimony, he sug-
gested to some of the employees that they consult
a union about their problems and he supplied the
telephone number of the union agent. Later, he also
signed a union authorization card, although by that
time he expressed some doubt as to his eligibility.
In the circumstances of this case we do not agree
with the Trial Examiner that Queypo's initial pro-
union activities demonstrated merely a favorable
inclination toward the Union and had no impact on
the procurement of the authorization cards on
which a bargaining order would be based. We con-
clude that the Union's majority showing was tainted
by Queypo's prounion activities. Accordingly, we
shall issue no bargaining order, but shall remedy the
8(a)(1) violations by our customary cease-and-de-
sist order and requirement of posting of notice. We
note that there is outstanding the Regional
Director's Supplemental Decision, dated April 4,
1966, in Case 37-RC-1213, pursuant to which a
new election may be conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that Welding & Industrial
Products, Ltd., and Carbonic Products Corp.,
Honolulu, Hawaii, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Add the following as paragraph 1(b) to the
Trial Examiner's Recommended Order, and con-
secutively reletter the paragraph subsequent
thereto:
"(b) Withholding review of employee benefits
because of union organizational activity."
promised an employee a promotion if the Union was not successful In ad-
dition, we construe the Respondent's December 7 letter which refers to
the current year's review of employee, benefits having been interrupted
and halted by the incidence of union organizing, as calculated to
discourage such activity, hence a violation of 8(a)(1) Unlike the Trial Ex-
aminer, we do not construe this letter as a mere withholding of unan-
nounced benefits Although it appears from testimony for the Respondent
that certain benefits (in addition to the wage raise announced in October
and paid concurrently with the December 7 letter) had actually been ap-
proved during the summer, we think that the thrust of the letter was to per-
suade employees to abandon their organizational effort
167 NLRB No. 129
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order, and consecutively reletter
the paragraph subsequent thereto:
3. Delete the third paragraph of the Appendix
attached to the Trial Examiner's Decision and sub-
stitute the following therefor:
WE WILL NOT withhold review of employee
benefits because of activity on behalf of any
labor organization.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: The charge in Case
37-CA-400 was filed by Hawaii Teamsters & Allied
Workers, Local 996, herein the Union, on January 19,
1966. The charge in Case 37-CA-427 was filed by the
Union on July 14, 1966. The charge in Case 37-CA-428
was filed by the Union on July 19, 1966. Upon these
charges the General Counsel of the National Labor
Relations Board, herein the Board, issued an order con-
solidating cases, amended consolidated complaint and
notice of hearing, dated August 18, 1966.
Pursuant to due notice a hearing in this matter was held
before me at Honolulu, Hawaii, on August 30 - Sep-
tember 1, 1966, and February 7, 1967.1 The parties fully
participated. General Counsel's and Respondent's briefs
have been received and considered
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all material times, Respondent has been a Hawaii
corporation with an office and place of business located
in Honolulu, Hawaii, where it is engaged in the manufac-
ture and retail sale of industrial supplies and gases. In the
course and conduct of its business operations during the
past calendar year, it received gross revenues in excess of
$500,000 from the sale of industrial supplies and gases. In
the course and conduct of its business operations in the
past calendar year, it has purchased and received materi-
als and supplies valued in excess of $50,000 directly from
outside the State of Hawaii. It is an employer engaged in
commerce and in operations affecting commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material the Union has been a labor or-
ganization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Did Respondent's minor supervisor, Roy Queypo,
interfere with, restrain, and coerce employees on various
occasions?
2. Did Respondent's officer, Charles B. McAfee, on
or about December 7, 1965,2 by letter, unlawfully
threaten "the employees with the discontinuance of wage
and fringe benefit adjustments - because the Union had
filed a representation petition?"
3. In December, did Respondent's production
manager, Harold B. Hicks, Jr., unlawfully promise an em-
ployee a promotion if the employees did not select the
Union?
4. In December and January, did McAfee threaten
employees with more strict enforcement of work rules,
loss of a profit-sharing plan, a reduction in working hours,
and loss of various fringe benefits, should the employees
select the Union?
5. In July 1966, did Respondent's president, Thomas
K. Carpenter, unlawfully threaten picketing employees
with physical violence?
6. In September 1966, did Hicks threaten an em-
ployee with discharge because of his union activities?
7. Has Respondent unlawfully refused to bargain with
the Union since November 18?
8. Since May, has Respondent unlawfully refused to
bargain with the Union with respect to subcontracting of
its trucking operations?
9. Also in issue is whether any activity by Queypo
tainted the Union's majority status.
B. Queypo'sActivities
The parties agree and I find that at all material times
Queypo was a working foreman in the trucking opera-
tions of Respondent and a supervisor within the meaning
of the Act. There were about eight trucking employees
and in their day-to-day operations they were supervised
by Queypo. Having considered all the evidence on the
subject I find it abundantly clear that Queypo was a
"minor" supervisor. His relationship with the trucking
employees was friendly. They considered him one of
them. Queypo showed a favorable inclination towards the
Union when employees Esber and Tetsutani first began
organizing for the Union .3 In late October or early
November, Tetsutani solicited Queypo to sign a union
authorization card. Queypo expressed doubt as to
whether he was eligible to be in the unit Tetsutani
inquired of the Union at that time and was told he could
sign up Queypo and accept an initiation fee from him.
Queypo was so advised and in early November he signed
an authorization card and paid a $5 initiation fee. The
Union, through Tetsutani, signed up a majority of the em-
ployees of Respondent in the appropriate unit by early
November and the Union filed a petition with the Board
about November 15. Respondent was so advised within
a couple of days. On December 8, Respondent held a
meeting of its major and minor supervisors and officers
where an official of the Hawaii Employers Council, of
which Respondent was a member, addressed them. The
official was Roy Kitamura. Queypo was among those
present. They were told by Kitamura to listen and pick up
complaints from the employees so that Respondent
would know what it "had to fight." Queypo and others
were told they would be "management's ears." It was
made completely clear to Queypo that he was a super-
visor and part of management and could not vote in the
This latter date was pursuant to a granted motion of General Counsel
to reopen the record and amend the consolidated complaint
1 Hereinafter the latter months of the year refer to 1965 and the early
months of the year refer to 1966, unless otherwise specified
3 Esber had an interest in the Union but did little other than sign an
authorization card Tetsutam was the prime mover in the Union's organiz-
ing activities
WELDING & INDUSTRIAL PRODUCTS 883
unit sought by the Union. Kitamura told Respondent's
representatives including Queypo that they should not in-
terrogate, threaten, or make promises to the employees.
Queypo asked what they could do in the campaign against
the Union. Kitamura replied they "could say anything as
long as it is in [their] opinion."
There is considerable testimony from General Coun-
sel's witnesses as to restraint, coercion, and interference
by Queypo. In substance, Queypo admits most of this
testimony excepting that he would insist that his anti-
union activity did not begin until immediately after
December 8. It was sometime around this date that he
asked for the return of his union authorization card and
his initiation fee and advised Tetsutani he was part of
management. His initiation fee was returned to him
around Christmas. He told Tetsutani and perhaps others
or at least others through Tetsutani by December 8, that
he was a supervisor and not eligible to vote in the elec-
tion. At least by December 9 and on innumerable occa-
sions thereafter and until the election on January 12, he
told virtually all the trucking employees that if the Union
were successful and work were slack, they would be sent
home early,4 and he told employees as often as 3 or 4
times a day that Respondent would take away their profit-
sharing plan if the Union came in.5 He asked Esber how
he was going to vote in the election.
Respondent insists there is no substantial evidence that
it was aware of Queypo's conducts and insists that while
Queypo was a supervisor within the meaning of the Act,
he was not Respondent's agent when he threatened
Respondent's employees or interrogated one of them.
Section 2(13) of the Act specifically provides that in
determining whether a person is an agent , "the question
of whether the specific acts performed were actually
authorized or subsequently ratified shall not be con-
trolling." I find that when Kitamura told Queypo and the
others that they could say "anything" so long as they
added that it was their opinion, he gave Queypo and
others blanket authorization to speak to the employees
about the Union. Employer responsibility is not deter-
mined by the strict rules of agency . Respondent is respon-
sible for Queypo's acts if the employees had just cause to
believe he was acting in Respondent 's behalf.7 As was the
case in Furr's, Inc. v. N.L.R.B., 381 F.2d 582 (C.A. 10),
Queypo's statements were neither casual nor isolated and
they were made principally on Respondent ' s premises,
during working hours, over a considerable period of time.
They were attributable to Respondent. These employees
felt coerced. I "think the employees could and did
justifiably conclude that the acts" of Queypo reflected
Respondent 's policy even though, as will be seen infra,
top management was not as blunt as Queypo.8 These
trucking employees, day after day, and sometimes several
times a day, had their closest supervisor threaten and
coerce them.9 While he often stated it was his opinion,
Respondent had given him carte blanche to say anything
to the employees so long as he stated it was his opinion.
As could be expected, Queypo did not always use what
Respondent thought was the magic phrase.
I find Respondent, by the many threats of Queypo and
by his interrogation of Esber, violated Section 8(a)(1) of
the Act.
At the time Queypo discussed union organization be-
fore December 8, he was not a defined nor self-
acknowledged supervisor and representative of Respond-
ent. When he signed his authorization card for the Union
and paid his union initiation fee, he made clear that he
was doubtful of his status and employees accepted him as
one of them. Anything he may have said at such time in
favor of union organization and his signing of a union card
would not and did not persuade the employees that his
acts were acts of management. It was clear to the em-
ployees before December 8 that Queypo was in a least
ambiguous position and that he did not consider himself
as part of management. His prounion activities were not
indicative of management position. It was not until im-
mediately after December 8, that he revealed himself, as
he had just learned, as Respondent' s agent . I find he did
not by his pre-December 8 activities in any way taint the
majority obtained by the Union long prior to December
8.
C. McAfee's December 7 Letter
McAfee testified credibly that in June or July of 1965,
Respondent 's top management reviewed wage rates and
fringe benefits and decided to give the employees a wage
increase, another paid holiday , and increased medical
benefits. As has been noted , the Union filed an election
petition on November 15. On December 7, Respondent
caused the following letter to be delivered to each em-
ployee:
NOTICE
To:
The notice dated October 20, 1965, enclosed with
your last paycheck in the month of October an-
nounced an additional pay increase of five (5) cents
per hour. The effective date of this increase was
November 29, 1965. Your enclosed paycheck
reflects this raise.
Your management, as in the past, continues to
review compensation schedules and employee
benefits. Much effort goes into these reviews to in-
sure you that your wages and benefits will always be
in line with industry standards.
This year's review of employee benefits has been
interrupted by reason of the filing of the petition by
the Teamsters for an election to seek representation.
Regretfully all matters of wage or benefit adjustment
must of necessity come to a grinding halt. Once a
Union seeks representation of employees, manage-
ment cannot grant or promise directly to employees,
any additional benefits. To do so would be an unfair
labor practice which would interfere with the elec-
It had been Respondent's practice to make work for these employees
so that they would have a 40-hour week
s This was often stated as his opinion
I find this was a small plant and that Queypo's daily conduct, as a su-
pervisor, over several weeks' time, during working hours and on Re-
spondent's premises, must have been known to Respondent
' It ring Air Chute Company, Inc v N L R B , 350 F 2d, 176, -179
(C A 2)
0" Furr's Inc, supra
" As I have found above, in a small operation like this, Respondent
must have been aware of such conduct
310-541 0 - 70 - 57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. We are indeed sorry that this interruption has
occurred.
C. B. McAfee
Executive Vice President,
W.I.P.
I see nothing unlawful in this announcement to the em-
ployees. Withholding unannounced benefits was perfectly
proper. 10 There is no evidence that Respondent was un-
lawfully motivated in issuing or delivering this letter.
There is no threat or promise therein.
D. Production Manager Hicks' Promise to Andy Esber
In mid-December 1965, Hicks called employee Esber
into Hicks' office and having stated that there would
probably be two openings for operators in the coming
year, then told Esber that if everything went well with the
Union, Esber would be considered for one of the
openings. Esber so testified and I credit his testimony.
Having observed the demeanor of Hicks, I do not credit
his denial of Esber's testimony. Hicks admittedly
questioned two other employees "why the employees
were contemplating or discussing joining the Union."
Also, as I shall later find in more detail, Hicks told em-
ployee Morales at a subsequent time that he should be
extra careful in his work since he was one of those who
was strong for the Union. I find Hicks' promise to Esber
was violative of Section 8(a)(1) of the Act.
E. McAfee's Meetings with Employees
In late December and early January, McAfee held two
series of meetings with three groups of employees, there
being six meetings in all. There is much testimony from
General Counsel's witnesses and from McAfee as to
what the latter said in his hours of talks. In many in-
stances the witnesses for General Counsel do not cor-
roborate each other and in some instances contradict
each other. McAfee impressed me as an honest witness
who had a clear recollection of the substance of things he
did and did not say at these meetings. It is clear that at
these meetings he compared the working and pay condi-
tions at Respondent with those which prevailed at a com-
petitor which operated under a contract with the Union.
He emphasized those working conditions which he con-
sidered to be better at Respondent. I find insufficient
probative evidence that McAfee directly or indirectly
said working conditions at Respondent would change if
the Union came in. Specifically, he did not threaten the
employees that if the Union came in and work was slow-
ing down they would be sent home, nor did he threaten
employees with loss of the profit-sharing plan, nor did he
threaten the employees with loss of privileges if the
Union came in, such as the use of company equipment,
nor did he threaten the employees with stricter enforce-
ment of the house rules if the Union came in, all as con-
tended for by the General Counsel in his brief. I find in-
sufficient substantial evidence that McAfee made any
threats or promises in his speeches.
F. President Carpenter's Threats of Physical Violence
to Picketing Employees on July 18, 1966
On the morning of July 18, 1966, employees Esber,
Jasmine, and Tetsutani began to picket at Respondent's
so-called Sheridan Street delivery entrance. Earlier that
morning, McAfee had observed Jasmine inside the
warehouse and had ordered Jasmine off the premises.
McAfee narrated this event to Carpenter. Between 8 and
8:30 a.m. Carpenter, accompanied by a salesman, went
to the delivery and driveway area. Carpenter saw the
three pickets peacefully sitting on a curbing just outside
a gate which barred the delivery driveway at night. There
were no visible markers showing where Respondent's
property extended. Carpenter is 6 feet, 2 inches, and
weighs in excess of 200 pounds. Esber is 5 feet, 3 inches,
and weighs 125 pounds. Tetsutani is 5 feet, 5 inches and,
weighs 150 pounds. Carpenter knew the three employees
were on Respondent's property. The employees probably
were aware that the curbing was company property but
there is no evidence they knew the property in front on
the curbing belonged to Respondent. According to the
credited testimony of Tetsutani, not substantially denied
by Carpenter, Carpenter ordered the pickets off Re-
spondent's property. They got up from the curbing and
removed themselves to a place probaby off Respondent's
property. Carpenter approached within a few feet of them
and offered to fight the three pickets together or one by
one. He addressed the three employees with profane, vul-
gar, and threatening language.
On the afternoon of July 18, Carpenter again spoke to
Tetsutani when the latter was picketing in front of the
building. Carpenter asked Tetsutani, "Why don't we go
someplace else and have this out man to man?" While one
or more of the pickets in the morning may have replied to
Carpenter, no replies were such as to provoke the threats
of violence or vituperation. I reject Respondent's argu-
ment that because the pickets were innocently on
Respondent's property for a brief period, their conduct in
peacefully picketing was unprotected and Carpenter's ac-
tions cannot be found unlawful. Further, I reject Re-
spondent's contention that Carpenter's inordinate anger
was occasioned by the sight of employee pickets on com-
pany property. I find he made it clear to the employees
that his ire was directed to their picketing. Carpenter may
have tendered an apology to Tetsutani during the after-
noon but I find he was displaying violent proclivities
towards Tetsutani that afternoon solely because of
Tetsutani's picketing. Carpenter did not dispute the
essentials of the testimony of Esber and Tetsutani. I find
Tetsutani was an honest witness with respect to these
incidents. Because of Carpenter's intense and violent
anger I do not rely on his recollection of the events where
it is in conflict with that of Tetsutani. I find that by his
threats of violence and his intemperate language on July
18, Respondent violated Section 8(a)(1) of the Act.
G. Hicks'Alleged Threat to Discharge John Morales
Because of His Union Activities; Hicks' Statement to
Morales That Because He was Strong for the Union He
Should Be Extra Careful in His Work
Morales and Hicks testified as to an occasion in Sep-
tember or October 1966, when Hicks had Morales in the
10 Cf American Sanitary Products Co, 157 N LRB 473
WELDING & INDUSTRIAL PRODUCTS 885
office. Having observed their respective demeanors, I
credit the testimony of Morales as to this incident.
Morales was a bit confused as to dates and as to whether
Tetsutani was present, but I find he was an honest wit-
ness and credit the substance of his testimony. Hicks
found fault with the admittedly inferior production of
Morales. Hicks told Morales he didn't think the em-
ployees needed a union. He told Morales, reciting an in-
cident at another place of business, that if Morales were
fired for poor production, cause, the Union could do
nothing for him. I find nothing violative of 8(a)(1) in these
statements.
Hicks also told Morales "he had better buckle down,"
and "should be extra careful" because he was "one of the
stronger ones for the Union." I find that by these state-
ments Hicks was more than implying to Morales that his
union activities would affect his job tenure. It was
restraint and coercion violative of Section 8(a)(1) for
Hicks to admonish Morales that he must buckle down
and be extra careful in his work because he had
prominently engaged in union activities.
H. The Appropriate Unit; the Union's Card Majority;
the Bargaining Order
A unit appropriate for the purposes of collective bar-
gaining follows:
All production and maintenance employees of the
Employer employed on the Island of Oahu, including
counter-salesmen and dispatchers, but excluding of-
fice clerical employees, casual employees,
watchmen, guards and supervisors as defined in the
Act.
The above unit consisted of 27 employees. General
Counsel established through cards and testimony that
since on or about November 5, the Union represented a
majority of the employees; 17 valid authorization cards,
signed by November 5, are in evidence and one em-
ployee, Lowell Soares, credibly testified that he joined
the Union about November 12. On November 15, the
Union filed a petition for an election. On January 12, the
Board conducted an election which the Union lost by a
vote of 14 to 13.
Respondent was a member of the Hawaii Employers
Council. Roy Kitamura was a representative of the Coun-
cil. The Union's representative in charge of the Union's
organizing at Respondent was Pat Perry. According to
Perry, he made two requests for recognition from
Kitamura, one in a phone call, a few days after the peti-
tion was filed, and one at the prehearing election con-
ference and probably a third one "in a joking fashion" at
the formal election hearing. On the other hand, Kitamura
flatly denies that the first two requests were ever made
and states as does Respondent's counsel, Moore, that
Perry made a request for recognition at the so-called for-
mal hearing but did it in a joking manner. The request was
not treated seriously. With respect to the request at the
hearing, I am convinced it was not intended to be, nor
was it, taken seriously. As to the conflict between Perry
and Kitamura regarding the alleged two earlier requests,
I find it unnecessary to resolve the credibility issue.
Credited testimony of Kitamura and McAfee establishes
that Kitamura had no express or implied authority to act
as Respondent's agent as to any requests for bargaining.
Kitamura's sole function was to advise Respondent with
respect to Respondent's decision as to the matter of
representation. Assuming but not finding that Perry ad-
dressed bargaining requests to Kitamura, 1 find Respond-
ent was not bound by any actions of Kitamura with
respect thereto because Kitamura was without authority
to bind Respondent concerning such matters. It is clear
that aside from the "joking" request made at the hearing,
the Union did not at any time request a responsible agent
of Respondent to bargain." Thus, there was no refusal to
bargain prior to the election and I do not here find an
8(a)(5) violation. While I will consider this further under
The Remedy section, I here note that I find Respondent
by its 8(a)(1) conduct, as found herein, has demonstrated
a disposition to evade any obligation to recognize or bar-
gain with the Union which by November 5 represented
a majority of the employees. The remedial order herein,
will provide that upon the Union's request, Respondent
bargain with the Union. The General Counsel has clearly
established the Union's majority status prior to Respond-
ent's unfair labor practices and Respondent has engaged
in unfair labor practices aimed at destroying the Union's
majority and has disclosed a disposition to evade its
obligation to bargain. Respondent's misconduct
destroyed the conditions needed for a fair election.
Respondent rejected the collective-bargaining principle
and merely sought an election to gain time within which
to undermine the Union and dissipate its majority. As the
Union did represent a majority of the employees in an ap-
propriate unit, under these circumstances only a bargain-
ing order can adequately restore as nearly as possible the
situation which would have existed but for the Respond-
ent's unfair labor practice S'2
1. The Alleged Refusal To Bargain About Subcontract-
ing a Substantial Portion of Respondent's Trucking
Operations on May 31
For two or more years prior to May 31, Martin Van
Lines had provided various trucking services for Re-
spondent. About July 1965, Martin and Respondent be-
gan discussions about Martin taking over more of Re-
spondent's trucking operations. In April, Martin submit-
ted a written proposal for subcontracting to Respondent.
Before submitting the proposal, Stone, Martin's general
manager, discussed with the Union's representative, Per-
ry, how the seniority of any of Respondent's employees
would be treated, should they be transferred to Martin.
Stone and Perry agreed on a seniority arrangement13 and
Stone was assured he would have no difficulties with the
Union should the transfer of employees take place.14
There were several conversations between Stone and
Perry. Perry was told Stone was going to offer employ-
ment to six of Respondent's trucking employees. About
May 13, Perry phoned Kitamura and said that Respond-
ent was planning to subcontract its trucking operations
and the Union wanted to bargain over the terms of the
subcontracting. Kitamura replied he had nothing to do
with the matter but agreed to refer Perry's message to Er-
nest C. Moore, Jr., Respondent's attorney. Kitamura did
I shall subsequently discuss the alleged refusal to bargain about sub-
contracting
12 MocA Road Super Dupe, , Inc , 156 NLRB 983, Western Alummu n
of Oregon, Incorporated, 144 NLRB 1 191
" Martin had a contract with the Union
14 Perry stated his problem was with Respondent
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so. Moore, in due course, phoned Perry and told him that
any subcontracting would be done with full knowledge of
the Union and with the approval of the employees in-
volved in the transfer. Perry said he would "reserve his
rights." Perry and Moore had another conversation a few
days later in which Perry again stated the Union's desire
to bargain about the subcontracting. At that time, it
looked to Moore as though the subcontracting discus-
sions with Martin were approaching completion. By this
time, there was an outstanding Board complaint against
Respondent and by May 19, Respondent had filed its
answer thereto. Moore told Perry that arrangements as to
the subcontracting had to be off the record but with the
consent of the Union and the employees involved. Moore
asked Perry for a written release so that the subcontract-
ing would not be a basis for further charges or complicate
the outstanding issues with the Board. Perry refused to
give a written release. However, the conversation con-
tinued and Perry indicated to Moore that the Union
would not make an issue of the subcontracting if it
worked out, it being understood that this was without
prejudice to the Union's position on the outstanding
complaint.15 Moore and Perry reached an oral un-
derstanding that neither Respondent nor the Union would
use the subcontracting against the other. There is no sub-
stantial evidence that Perry ever specifically stated that
the Union was opposed to the subcontracting or the
transfer of employees. On June 3, Perry wrote a letter to
President Carpenter requesting bargaining about the sub-
contracting which had already taken place.16 The letter
was refused by Carpenter and r.,turned to Perry
unopened because Carpenter had been advised by coun-
sel to have no direct dealings with the Union.
Shortly before May 31, the day the subcontracting
became effective, Respondent supplied Martin with a list
of 10 or 11 (all) trucking department employees. Respond-
ent told Martin it preferred to retain the services of two
of these employees in particular, Louis and Ganacial,
because they had long seniority and specialized ex-
perience in delivering small orders to individual
customers, a service Respondent was going to continue.
The other employees were not familiar with this opera-
tion and were apt to misdeliver such orders. Neither
Louis nor Ganacial was a member of the Union. Martin
thereupon studied the list and offered jobs to six of the
employees thereon. They accepted the offers. Each of the
six had signed a union authorization card. There is a natu-
ral suspicion that the six were transferred because they
had signed cards and the two were retained because they
had not. There is no evidence that the six employees were
not pleased at their transfer to an employer who had a
contract with the Union. Each accepted the offer of Mar-
tin I find Louis and Ganacial were retained by Respond-
ent for the sound economic reason that they, rather than
other trucking employees, were best suited to Respond-
ent's work needs. I find insufficient probative evidence
that employees were transferred or retained for dis-
criminatory reasons.
I find Respondent subcontracted the major part of its
trucking operations to Martin only after Moore and Perry
had agreed that neither party would use the subcontract-
ing against the other. The Union was assured by Moore
11 The above findings as to subcontracting are based on the credited
testimony of Stone and Moore who impressed me as honest and forthright
witnesses
that Respondent would not claim the Union had preju-
diced its outstanding charges against Respondent, by fail-
ing to insist on bargaining about the subcontracting. I find
insufficient probative evidence that Respondent violated
Section 8(a)(5) or (3) or (1) of the Act by refusing to bar-
gain about the subcontracting or about the transfer of em-
ployees to Martin or by the transfer of the employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMENCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
THE REMEDY
It has been found herein that Respondent has engaged
in certain unfair labor practices in violation of Section
8(a)(1) of the Act. I shall therefore recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
has been found that Respondent did not refuse to bargain
with the Union. Hence, I shall not recommend that it
cease and desist from refusing to bargain. However, it has
been found that the Union, by November 5, was
designated by a majority of Respondent's employees in
an appropriate unit, that, hence, the Union at all times
material hereto has been the exclusive collective-bargain-
ing representative of all the employees in such unit, and
that Respondent has shown a disposition to evade any
obligation to recognize or bargain with the Union. For
this reason, I find that in order to assure the desires of
Respondent's employees be not frustrated in the future,
it will be necessary, and will effectuate the policies of the
Act, to include in the remedial order, an order that
Respondent, upon request by the Union, bargain collec-
tively with the Union.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. A unit composed of all production and maintenance
employees of Respondent employed on the Island of
Oahu, including counter-salesmen and dispatchers, but
excluding office clerical employees, casual employees,
watchmen, guards and supervisors as defined in the Act,
constitute an appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
4. At all times since November 5, the Union has been
the exclusive representative of the employees in the
above unit for the purposes of collective bargaining.
5. By the unfair labor practices found above, Respond-
ent has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act in violation of Section 8(a)(1) of the Act.
1 On May 31
WELDING & INDUSTRIAL PRODUCTS
6. Respondent has not refused to bargain upon request
with the Union within the meaning of Section 8(a)(5) of
the act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend an order that Respondent, its officers, agents,
successors , and assigns , shall;
1. Cease and desist from.
(a) Telling employees that if the Union is successful
and work becomes slack they will be sent home rather
than be permitted to work a 40-hour week, or that their
profit-sharing plan will be taken away if the Union comes
in, or interrogating its employees as to their union activi-
ties; promising employees promotions depending on how
things go between Respondent and the Union; telling em-
ployees they should be extra careful in their work if they
are prominent in union activities ; and threatening em-
ployees with physical violence and using vile language to
them because they engage in union activities.
(b) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their union or
otherwise protected concerted activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive bargaining representative of the employees in the
unit herein found appropriate, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its plants in Honolulu, Hawaii, copies of
the attached notice marked "Appendix. " 17 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 20, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately 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.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 18
I ALSO RECOMMEND that, unless within 20 days,
Respondent notify said Regional Director that it will
comply with the foregoing Recommended Order, the
Board issue an order requiring Respondent to take the ac-
tion aforesaid.
I FURTHER RECOMMEND the complaint be dismissed in-
sofar as it alleges that Respondent violated Section
8(a)(5) or (3) of the Act.
"" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
1" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
887
in writing, within 10 days from the date of this Order, what-steps Re-
spondent has taken to comply herewith " --
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT tell our employees that if the Union,
Hawaii Teamsters & Allied Workers, Local 996, is
successful and work becomes slack, the employees
will be sent home rather than be permitted to work a
40-hour week, or that their profit-sharing plan will be
taken away if the Union comes in, nor will we ask
our employees questions about their union activities,
nor will we promise employees promotions depend-
ing upon union developments, nor will we tell em-
ployees they should be extra careful in their work if
they should be quite active in union activities, and we
will not threaten employees with physical violence
nor use vile or profane language to them because
they engaged in union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in their right to
self-organization, to form, join, or assist Hawaii
Teamsters & Allied Workers, Local 996, or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or
to refrain from such activities.
WE WILL, upon request, bargain with Hawaii
Teamsters & Allied Workers, Local 996, as the ex-
clusive representative of our employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, put
such agreement in a signed contract. The appropriate
unit is:
All production and maintenance employees of
ours employed on the Island of Oahu, including
counter-salesmen and dispatchers, but excluding
office clerical employees, casual employees,
watchmen, guards and supervisors as defined in
the Act.
WELDING & INDUSTRIAL
PRODUCTS, LTD., & CAR-
BONIC PRODUCTS CORP.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197.