Crow-Burlingame Co.

National Labor Relations Board - Board Decisions

May 31, 1951

94 N.L.R.B. 997 (N.L.R.B. 1951)

CROW-BURLINGAME COMPANY 997
,Jr., Earnest Graham , Moses Sherman , and Willie J. McCray, it will be recom-
mlended that the complaint be dismissed insofar as it alleges that the Respondent
committed the aforesaid unfair labor practices.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Pulp, Sulphite & Paper Mill Workers of the
U. S & Canada, A. F. L., is a labor organization within the meaning of Section
2 (5) of the Act.
2. All production and maintenance employees of the Respondent's plant and
woodland operations, excluding office and clerical workers, salespeople, technical
-employees, superintendents, and all other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3 International Brotherhood of Pulp, Sulphite & Paper Mill Workers of the
-UJ. S. & Canada, A. F. L., was on March 26, 1948, and at all times thereafter
has been, the exclusive representative of all the employees in the above-mentioned
-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 the aforesaid Union, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
-of Section 8 (a) (5) of the Act.
5. By disci iinmating in regard to the terms and conditions of employment
-of some of its employees, thereby discouraging membership in the aforesaid
Union, the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By the above unfair labor practices, and by otherwise interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
,commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent did not commit unfair labor practices by discharging Jack
Rush and causing his arrest; by discharging John Woodle; by discontinuing the
-on-the-job training program for veterans ; by imposing onerous and discrimina-
tory working conditions- upon its, employees (except with respect to Jethro
Rabon) ; nor by refusing after the strike to reinstate Acie Faulk, Jr., Earnest
Graham, Moses Sherman, and Willie J. McCray.
[Recommended Order omitted from publication in this volume.]
'GROW -BURLINGAME COMPANY and LODGE 325, INTERNATIONAL ASSO-
CIATION OF MACHINISTS. Case No. 32-CA-129. May 31, 1951
Decision and Order
On January. 30, 1951, Trial, Examiner Lloyd Buchanan issued his
Intermediate Report in the above -entitled proceeding , finding that
the Respondent had engaged and was engaging in certain unfair
94 NLRB No. 146.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in unfair labor practices in
discharging Dorothy N. Lee and D. D. Sutton, as alleged in the
complaint, and recommended that the complaint be dismissed as to
them. Thereafter, the Respondent and General Counsel filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
had delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications :
1. In July 1949, the Union began an organizational campaign among
the employees in the Respondent's machine shop and repair depart-
ment. A consent election 1 was held in a unit of those employees on
September 12, 1949. The Union won the election, and on September
20, 1949, it was certified as collective bargaining representative.
The complaint alleges that during the period following the Union's
certification, including the period from December 23, 1949, to July
10, 1950, when the parties were engaged in bargaining negotiations,
the Respondent committed acts of interference, restraint, and coercion
of its employees in violation of Section 8 (a) (1) of the Act.2 These
acts consisted of the following :
a. The antiunion petition: On December 22 or 23, 1949, Foreman
Burke said to Sleeker, one of the employees in the unit, "One of you
fellows should write a letter to the union organizer and all the fellows
back there sign the letter," telling the' Union that the employees
wanted to get rid of it. On March 6, 1950, Burke told Sleeker during
the working hours, "You can write that letter now," but admonished
him that "you can't write it around here." Sleeker had a letter 3 typed
that evening and showed it,to Burke the following morning. During
the next day, Sleeker procured the signatures of 12 employees, and
' Crow-Burlingame Company, Case No 32-RC-162 (unpublished)
2 The complaint was amended at the hearing to include an additional allegation that
on November 27, 1950, the Respondent announced an incentive wage plan to the employees
in the unit without prior notice to or approval by the Union.
It was addressed to TAM Organizer Harris , and stated :
Please be advised that we, the undersigned employees of Crow-Burlingame Co. Machine
Shope ( sic) and Equipment Repair Department find it unnecessary to be represented
by any labor organization.
CROW-BURLINGAME COMPANY 999'
Burke then told him to deliver it personally to Union Organizer
Harris. Sleeker left the letter with someone in Harris' absence and
a day or two later Burke asked Sleeker about Harris' reaction to it,
and when Sleeker said he hadn't seen Harris, Burke suggested that he
go back to Harris ; Sleeker did so, at which time Harris acknowledged
that he had received the letter.
b. Withholding of paid vacations: About May 1, 1950, Strozyk, an
employee in the unit, asked Burke if he had heard anything about
vacations, and Burke replied that "there wasn't going to be no vaca-
tions, no bonuses, and no raises." When Strozyk asked for an expla-
nation, Burke stated that it was "on account of the boys fooling with
the union." Finally when Strozyk asked, "What are you going to do
with those that didn't participate in the union? Are you going to^
penalize these too?" Burke said, "Yes, your buddies have."' The
evidence establishes that the Respondent regularly granted all its
employees paid vacations, i. e., 1 week to those with up to 5 years'
service with the Respondent and 2 weeks to those with five or more
years' service, and that in 1950 this was denied to the employees in the
unit in question but not to the employees in the Respondent's other
departments (general bookkeeping, credit, purchasing, sales, ware-
house and shipping, order-filling, and counter sales). It does not
appear from the record that the employees in those other departments
were organized.
c. Deferring installation of new machines",/: In May 1950 Burke told
Rinke, an employee in the unit, that he was planning to put in a new
microfinisher for lapping the crank shafts, and said, "We are going
to make some moves around here, and probably get some more ma-
chines after September . . . whenever the union ran out."
d. Discussion of incentive plan: The record also establishes that
during November 1950, Vice-President James called the employees of
the unit together and discussed the way in which an "incentive wage
plan" would operate; that under this plan, a level or quota would be
established and employees would divide among themselves a propor-
tionate share above the quota, with a base pay guaranteed. James
admitted holding such a meeting without first apprising or consulting
the Union but stated that it was merely for the purpose of ascertain-
ing whether the employees would be interested in such an incentive
program.
Our findings hereinabove set forth are based on the testimony of
employees Sleeker, Strozyk, and Rinke, which we, like the Trial Ex-
* Burke did not specifically deny this testimony except that he testified, in a general
'way, that he had not threatened any employees "with the loss of benefits." In any
event the Trial Examiner credited Strozyk's testimony on this point , and we adopt this
credibility finding. Strozyk ' s reference to employees who did not participate in the
Union was, in the context of his testimony , restricted to employees in the unit in question.
1 000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer, credit. Based on the foregoing, we find, in agreement with the
Trial Examiner, that the Respondent, by sponsoring a letter or peti-
tion to revoke the employees' authorization of the Union,' by threaten-
ing the loss of paid vacations and by effectuating such threat,' by
promising benefits conditioned on the failure of the Union to achieve
its objectives,? and by unilaterally discussing with the employees a
proposed wage incentive plan without first apprising or consulting the
Union," the certified bargaining representative, interfered with, re-
strained, and coerced its employees in violation of Section 8 (a) (1) of
the Act.
2. The Trial Examiner found that the Respondent refused to bar-
gain with the Union in violation of Section 8 (a) (5) and (1) of the
Act. ;
As indicated above, the Union was certified on September 20, 1949,
as collective bargaining representative of the employees in the ma-
chine shop and equipment repair department. Thereafter, on No-
vember 25, the Union requested a bargaining conference, and on De-
`cember' 23 , the parties met for the first time. Bargaining negotia-
tions were initiated on the basis of a proposed agreement submitted
by the Union in advance of the December 23 meeting and a redraft of
this agreement which had been prepared by the Respondent because
the latter asserted that the one submitted by the Union was too long
and contained inapplicable provisions. On December 23, the parties
agreed on minor matters but not on vacations, wages, and seniority
which were passed over to subsequent meetings. At the meetings
which followed on February 11 and 28 and March 28, 1950, there was
again no agreement on these matters. At the March 28 meeting, Har-
ris, the union representative, requested a list of current job classifica-
tions and wage rates. Pursuant to this request, the Respondent's
attorney wrote Harris on April 6 and enclosed a letter from Vice-
President James in which the- latter---stated that he was, furnishing-the
information requested but that current wages were "not to be incor-
porated as part of the contract." Harris replied on April 11 and
asked, in effect, whether the Respondent was willing to sign the re-
draft of the agreement it had itself submitted on December 23 and
include therein the existing wage rates. The Respondent's attorney re-
plied on April 13, stating that James was away from the city, and that,
in any event, the redraft of December 23 had been modified in several
respects in the intervening meetings and therefore did not represent
G Henry Mayer, an individual d/b/a Cherokee Hosiery Mills , 93 NLRB 590, Allen-
Morrison Sion Co , Inc , 79 NLRB 903
a'Rovre-Dupont Mfg Co , 93 NLRB 1240 , Sullivan Dry Dock and Repair Corporation,
67 NLRB 627 , Young Engineering Company , 57 NLRB 1221.
See Eastman Cotton Mills , 90 NLRB 31.
General Motors Corporation, 81 NLRB 779 ; L B Hartz Stores , 71 NLRB 848.
CROW-BURLINGAME COMPANY 1001
"the understanding thus far reached between the parties." After this
letter of April 13, the Union received no further reply, either from
the Respondent's attorney or from Vice-President James, indicating
in any" way whether or not the Respondent would agree to a contract
incorporating current wages. Thereupon, on May 17, 1950, the Union
filed charges alleging an unlawful refusal to bargain.
After these charges were filed, the Respondent's attorney wrote to
Union Representative Harris, on June 7, 1950, requesting that the
Union state a time and place for a meeting. The parties met on June
16 and again on July 10. A representative of the United States Con-
ciliation Service was present at each meeting. No progress was made
on the principal issues of wages, seniority, and paid vacations, and
when, at the July 10 meeting, Harris, for the Union, told James that
"we were very desirous of securing a working agreement with him in
the plant over there, and would he incorporate the present working
conditions in the shop, including the holidays and the vacation and the
wages he was presently paying and make it into the form of an agree-
ment," James replied that he "didn't have anything to offer." There
were no further meetings.
As discussed in detail hereinafter, the Respondent on or about Feb-
ruary 7, 1951, granted increases in rates of pay to employees in the
unit, and on or about February 13, 1951, the Respondent instituted an
incentive wage plan for all employees in the unit, in neither instance
first notifying or consulting with the Union.
From this sequence of events it appears that although the Respond-
ent manifested an apparent willingness to meet and discuss minor mat-
ters with the Union, at no time during the negotiations did it evince
a willingness to attempt in good faith to reach any final agreement.
Thus, after the Union presented a proposed agreement which included
a provision on wages, the Respondent redrafted the agreement on•two
separate occasions with the wage provision blank and without offering
a substitute or counterproposal; when the Union wrote the Respondent
and suggested a readiness to negotiate on the basis of continuing the
wage rates then being paid, the Respondent failed to reply or to state
its position on wages or even to state why it would not agree to the ex-
isting wages; and when, at the final meeting on July 10, the Union in
an apparent effort to recede from its major demands in order to make
agreement possible offered to negotiate on the basis of continuing not
only existing wages but also all other existing working conditions in
the unit, including vacations and holidays, the Respondent terminated
the meeting by stating that it had nothing to offer. The Board has
held that where the Union is willing to consider any counterproposal
the Respondent might make, even one which would only embody cur-
rent wages and working conditions, and the Respondent fails "to
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer any contract that it would execute," such conduct is "indicative
of complete unwillingness to provide any basis for discussion leading
to possible agreement." 9
Additional, specific evidence of Respondent's determination not to
bargain in good faith is found in the following conduct of the Re-
spondent :
Although the Respondent had as recently as October 1949 applied
the seniority principle in laying off employees in the shop, it look
a firm stand against any form of seniority and gave no reasonable
explanation for its abrupt change in policy. Similarly, despite the
fact that the Respondent had in the past regularly granted all of its
employees paid vacations, during the period negotiations were pend-
ing, Respondent withheld paid vacations from these employees al-
though it continued to grant to the employees in its other departments,
.all of whom it appears were unorganized, paid vacations as in the past.
Again, although early in the negotiations the Respondent asked for a
probationary period of 60 days for new employees as against the
Union's proposal of 30 days, it subsequently changed its position to an
insistence on 90 days. The Board has held that such shifting of
positions is indicative of bad faith in bargaining 10 The record shows
.that the Respondent refused to include a provision in the proposed
.agreement that it would bargain collectively with the Union, which
conduct is further indicative of the Respondent's lack of good faith
in the negotiations." Finally, we regard as further evidence of the
Respondent's lack of good faith in bargaining with the Union, its
-unilateral changes on or about February 7 and 13, 1951, of the terms
and conditions of employment of the employees in the unit by ef-
fecting wage increases and instituting a wage incentive plan without
.first notifying or consulting with the Union.
From the foregoing facts, and from the entire pattern of negotia-
tions between the parties, including the conduct which occurred, for
the most part, during the period bargaining negotiations were pend-
ing, and which we have already found constituted independent vio-
lations of Section 8 (a) (1) of the Act, we conclude that the
Respondent evidenced a lack of good faith in bargaining. We find
that the Respondent first evidenced its lack of good faith at the initial
'conference on December 23, 1949, as it was at that conference that it
*Landis Tool Company, 89 NLRB 503.
n Franklin hosiery Tills, Inc, 83 NLRB 276
11 See McQuay-Norris Manufacturing Co., 21 NLRB 709, enfd. 116 F. 2d 748 (C. A. 7),
where the Board stated that included in the obligation to bargain, "as a 'reasonably
appropriate' method of precluding the respondent from making it nugatory" is "a duty
to incorporate in the contract, upon request, full recognition of the union, in express
terms, as exclusive bargaining agent." Tishomingo County Electric Power Association,
74 NLRB 864.
CROW-BURLINGAME COMPANY 1003
First manifested its intention to avoid reaching an agreement on the
major issues raised by the proposed agreement. That this is so is
amply demonstrated by the course of events which culminated in the
breakdown of negotiations on July 10, 1950, and by the acts of inter-
ference, restraint, and coercion it engaged in during the period that
negotiations were pending. Like the Trial Examiner, therefore, we
find that on December 23, 1949, and at all times thereafter, the Re-
spondent refused to bargain collectively with the Union as the repre-
sentative of its employees in an appropriate unit, in violation of
Section 8 (a) (5) and (1) of the Act.
3. After the close of the hearing before the Trial Examiner, the
General Counsel moved to amend the complaint on a stipulation of
facts executed by the General Counsel, the Respondent, and the
Charging Party. The stipulation provided that the stipulation and
the motion to amend the complaint be filed as additional exhibits in
this proceeding, and be considered by the Board in deciding the issues
in the same manner and to the same extent as if the facts therein stipu-
lated had been made part of the record at the hearing before the Trial
Examiner. The stipulation further provided that all parties waive
any right to further hearing concerning the facts therein stipulated,
to a Supplemental Intermediate Report, or to any other procedure
before the Board, except that the Respondent may file an answer to
the amended complaint and each party may file a supplemental brief in
support of or in opposition to the allegations contained in the amend-
ment to the complaint. In accordance with the stipulation of the
parties, the Board hereby grants the motion to amend the complaint,
and has duly considered the answer to the amended complaint and
the supplemental briefs filed pursuant to the said stipulation.
The stipulation recites that the following action was taken by the
Despondent without notice to or consultation with the Union :
On or about February 7, 1951, the Respondent granted an increase in
rate of pay to Benny A. Rinke, an employee in the unit, in the amount
of 30 cents per hour, and to Floyd Strozyk, Paul Sleeker, and R. C.
Reynolds, employees in the unit, in the amount of 10 cents per hour,
all increases retroactive to January 23, 1951, and on or about February
13, 1951, the Respondent instituted an incentive wage plan for all em-
ployees in the unit thereby changing the wages and rates of pay of
employees in the unit, retroactive to the month of January 1951, with-
out first notifying or consulting with the Union.
The amended complaint alleges that by granting wage increases
to employees and by instituting a wage incentive plan, both without
notifying or consulting the Union, the Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) of the Act.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the foregoing acts of the Respondent occurred after the final
bargaining conference between the parties on July 10, 1950. While
the Board has held that after the parties have exhausted good faith
bargaining, an employer is privileged unilaterally to grant his em-
ployees benefits which have been offered to, and rejected by, the
Union, 12 this privilege is not available to the instant Respondent for
the reason that in this case negotiations collapsed on July 10, 1950,
not because of an impasse reached in good faith bargaining but be-
cause, as has been found above, of the Respondent's unwillingness
to engage in such bargaining.13 Accordingly, we find that the Re-
spondent's unilateral institution of these changes was in disregard of
its duty to bargain collectively and undermined the authority of the
Union'14 and that the Respondent thereby further violated Section
8 (a) (5) and (1) of the Act.
4. We agree with, and adopt, the Trial Examiner's recommendation
that the complaint be dismissed insofar as it alleges that the Respond-
ent unlawfully discharged Dorothy N. Lee and D. D. Sutton.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Crow-Burlingame Com-
pany, Little Rock, Arkansas, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge 325, International
Association of Machinists, as the exclusive representative of all em-
ployees classified as machinists, machinists' apprentices and helpers,
mechanics, mechanics' helpers, welders, welders' apprentices and help-
ers, repairmen and helpers employed at its machine shop and repair
department at 520 West Capitol Street, Little Rock, Arkansas, and
excluding all other employees, stock clerks, warehousemen, office and
clerical employees, watchmen and guards, professional employees,
and supervisors as defined in the Act, with respect to rates of pay,
wages, hours of employment, or other conditions of employment.
(b) Sponsoring petitions to rescind the Union's authority; threat-
ening its employees with the loss of benefits or refusing to grant vaca-
tions to its employees because of their union membership and
121V TV Cross, Incorporated, 77 NLRB 1162. See N. L. R. B v. Crompton-Highland
Mills, Inc, 337 U S. 217.
13 Moreover , it is clear from the record that the wage incentive plan was neither proposed
nor considered In the bargaining conferences.
14 N L. R B v Crompton -Highland` Malls, Inc , supra See 'also Central , Metallic
Casket Go, 91 NLRB 572.
CROW-BURLINGAME COMPANY 1005
activities ; and proposing to its employees and instituting wage in-
centive plans, and granting wage increases to its employees, without
notice to on consultation with their collective bargaining representa-
tive.
(c) In any other planner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Lodge 325, International
Association of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or 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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Lodge 325, Inter-
national Association of Machinists, as the exclusive representative of
the employees in the appropriate unit described above, and embody
in a signed agreement any understanding reached.
(b) Make each of its employees in the unit described above, whole
for the loss of vacation benefits resulting from the Respondent's un-
lawful withdrawal of paid vacations.
(c) Post at its office and shop in Little Rock, Arkansas, copies of
the notice attached hereto and marked "Appendix A." 15 Copies of
said notice, to be furnished by the Regional Director for the Fifteenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places including all places where notices to its em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not defaced, altered,
or covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region, in
writing, within ten (10) clays from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTFIER ORDERED that the allegations of the complaint that the
Respondent violated Section (8) (3) of the Act be, and they hereby
are, dismissed.
15 In the ecnt this Order is enforced by it decree of a United States Court of Appeals,
these shall he inserted in the notice , beforethe words "A Decision and Order " the words
"A Der rce of the United States Court of Appea r s Enforcing
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
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 :
AVE WILL bargain upon request with LODGE 325, INTERNATIONAL
ASSOCIATION or MACHINISTS, as the exclusive representative of
all employees in the bargaining unit described herein with re-
respect to rates of pay, hours of employment, or other conditions
of employment, and embody in a signed agreement any under-
standing reached. The bargaining unit is :
All employees classified as machinists, machinist's appren-
tices and helpers, mechanics, mechanic's helpers, welders,
welder 's apprentices and helpers , repairmen and helpers,
employed in our machine shop and repair department at 520
West Capitol Street, Little Rock, Arkansas, and excluding
all other employees, stock clerks, warehousemen, office and
clerical employees, watchmen and guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL NOT sponsor petitions to rescind the authority of
LODGE 325, INTERNATIONAL ASSOCIATION OF MACHINISTS, threaten
our employees with loss of benefits , or refuse to grant vacations-
to our employees because of their union membership and activ-
ities, or propose or institute wage incentive plans or grant wage
increases to our employees without notice to or consultation with
said union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist LODGE 325,
INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor
organization, 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
protection, or to refrain from any or all such activities, except to,
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole each of our employees in the unit de-
scribed above for the loss of vacation in 1950.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of Lodge 325, In-
ternational Association of Machinists, or any other labor organization.
CROW-BURLINGAME COMPANY 1007
except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
CROW- BURLINGAME COMPANY,
Emplo yer.
By---------------------------------
(Representative ) ( Title)
Dated____________________
This notice must remain posted for 60 days from date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Messrs Nobel t B Steele and Joseph If it itchell , for the General Counsel.
Messrs Aloore, Buirow , Clioicn iiq and Mitchell , of Little Rock , Ark., by Air.
L. B Bus row, for the Respondent
Messrs L Al Fepas, of Fort Worth, Tex , and W C I(ai ris, of North Little
Rock , Ark, for the charging party
STaTE\IiI\T OF I IIE CASE
Upon a charge and amended charge duly filed by Lodge 325, International
Association of Machinists, herein called the Union, the General Counsel of the
National Labor Relations Board,' by the Regional Director for the Fifteenth
Region (New Orleans, Louisiana), issued a complaint dated November 10, 1050,
against Crow-Burlingame Company, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 130, herein called the Act Copies of the charges, complaint, and notice
of hearing were duly served by General Counsel on all other parties
WTitli respect to unfair labor practices the complaint alleged in substance that
the Respondent violated Section 8 (a) (3) of the Act by discharging and failing
and refusing to reinstate Dorothy N Lee and D D Sutton because they joined
and assisted the Union and engaged in other concerted activities, Section
8 (a) (5) of the Act by refusing to bargain with the Union as the exclusive
representative of its employees in the bargaining unit theretofore determined
by the Board to be appropriate; and Section 8 (a) (1) of the Act by said alleged
acts and by threats, refusal to grant paid vacations, circulation of a petition to
revoke authorization of the Union, and announcement of an incentive wage plan.'
In its answer, the Respondent denied the allegations of the complaint with
respect to unfair labor practices, and stated that the employees named were
released from employment because of insubordination and inefficiency.
Pursuant to notice, a hearing was held at Little Rock, Arkansas, on December
11 and 12, 1950, before the undersigned Trial Examiner duly designated by the
Chief Trial Examiner. General Counsel and the Respondent were represented
by counsel, and the Union appeared by its representatives. All parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.
1 The General Counsel and his representative at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board
2 This last allegation was added by amendment at the opening of the hearing
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of the hearing, a motion was granted to conform the pleadings
to the proof in all minor matters. Decision was reserved on the Respondent's
motion to dismiss the complaint, made at the close of the hearing, and the motion
is disposed of in accordance with the conclusions and recommendations below.
All parties waived oral argument at the conclusion of the hearing; pursuant to
leave granted to all parties, a brief was thereafter filed by General Counsel.
Upori the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the sale and distribution of automotive parts
and supplies, at wholesale, and operation of a custom automotive machine shop
for repair and maintenance of automotive vehicles. The Respondent owns and
operates branch plants and offices in the States of Arkansas, Texas, and
Louisiana
During the calendar year 1949, the Respondent, at its Little Rock, Arkansas,
offices, purchased parts, supplies, and equipment amounting to approximately
$1,000,000 for distribution to its various branches and sale, of which approxi-
mately 90 percent was purchased outside the State of Arkansas. During the
same period, the Respondent's sales and services at all branches approximated
$2,000,000, of which sales and services at the Little Rock branch approximated
$400,000, and sales and services of branches outside the State of Arkansas
approximated $300,000
It is found that the Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge 325, International Association of -Machinists, is a labor organization and
admits to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A. The alleged vtolattoit' of Section 8 (a) (1)
1. "Toleration" of the Union
References hereinafter made to the evidence, not ascribed to named witnesses,
represent unecntradicted testimony, or findings where conflicts have been re-
solved, findings ate made on the basis of reliable, probative, and substantial
evidence on the record considered as a whole and the preponderance of the
testimony taken
The Union conducted an organiraion campaign among the Respondent's
employees in July 1949, and on July 10 requested recognition by the Respondent
as bargaining agent A consent Board election was held on September 12, and
the Board thereafter certified the Union as the exclusive representative of all
employees classfied as machinists, machinists' apprentices and helpers, mechanics,
mechanics' helpers, welders, welders' apprentices and helpers, repairmen and
helpers employed in the Respondent's machine shop and repair department
at its Little Rock offices, and e eluding all other employees, watchmen and
guards, professional employees, and supervisors as defined in the Act. The
3 "Independent," so-called as distinguished fioiii "deuiatne" 8 (a) (1)
CROW-BURLLNGAME COMPANY 1009
parties agreed in this proceeding and it is found that such unit of employees
is appropriate for the purposes of collective bargaining, and that the Union has
been since September 12, 1949, and now is the exclusive representative of all
employees in such unit for said purposes. The Union on November 25 requested
the Respondent to recognize and bargain with it as such representative.
The complaint alleged that on and after November 17, 1949, James, the Re-
spondent's vice president, and Burke, its genes al foreman in the unit, told the
employ ees that the Respondent would not tolerate a union. This allegation
was not sustained. Burke denied generally that lie ever threatened his em-
plo^ees. and James denied this allegation specifically. Neither Rinice, the
chairman of the employees' negotiating committee, nor any of the other employ ees
offered testimony in this connection. Sutton did testify that Mertens, his nn-
mediate supervisor, declared that all of them would be fired before the Union
"would ever go through." But Mertens, who impressed the undersigned as a
quiet, businesslike mechanic, denied that lie ever spoke to the employees con-
cerning the Union. It is unlikely that he made any such gratuitous' threat.
In any event, it was not alleged in the complaint that he committed any violation.4
2. The petition to revoke authorization
The evidence is clear that on or about March 8, 1950, a petition to revoke
the employees' authorization of the Union was sponsored by the Respondent -
and circulated among the employees during working hours.' It is undenied
that Buike even directed and controlled the submission of the petition to the
union representative.
3 Threats of lobs of benefits
Another employee, Sti ozyk, testified that, about the beginning of May 1950,
when he inquired about a vacation, Burke told him that because of the Union
there would be no vacations, bonuses, or pay increases While, as noted above,
Burke denied that he ever threatened any of the employees, there is no indica-
tion that Strozyk or any of the other employees was ever otherwise informed
that they would not receive vacations; Strozyk's testimony is credited. Fur-
ther, Rinke testified that early in May Burke told him that the Respondent was
planning to install new machines and would probably get them after September
"whenever-the union ran out" To the extent that such a statement was a
conditional promise of benefit it was equivalent to a threat of loss or with-
holding of benefit on failure of the condition.
4 Denial of vacations
The threat having been made and vacations having been denied the employees
in this unit in 1950 although vacations had been granted in 1949 and previous
years, the reason for such denial must be determined .' It can be found in the
attendant circumstances.
* In the absence of an allegation of interference by 'interrogation, consideration need
not be given here to Sutton's statement that 'lertens asked him before he formally joined
the Union on May 11, 1950, how it was getting along (This statement and Mertens'
denial have been weighed in considering the discharges , infra ) Nor can two iefeiencea by
employee Sleeker to interrogation by Burke. in or about August and November 1949,
support a finding of interference
See Superior Engraiing Company, 83 NLRB 215 , Goodall Company, 86 NLRB 814
'Just before the hearing closed Lee testified in rebuttal that 'Mertens told three or
four of the employees that "joining the union knocked (them) out of a vacation " In
line with the appraisal of Mertens' demeanor and credibility hereinabove made, his denial
of any such remark is-credited
9 5 3 8 41-5 2-vol 94--65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As will be noted hereinafter in connection with the alleged discriminatory
discharges, the discharge of Sutton was necessary in the effort to put the equip-
ment repair department on a "sound operating basis"; but similar action was
not necessary, nor was it taken, in the machine shop on the basis of the latest
available records. A similar distinction between the repair department and
the machine shop would normally be expected in connection with vacations.
Yet there is no evidence that they were separately considered even though the
former showed a net loss for the first half of 1950, while the latter showed
a net profit for the period. The explanation offered, that the machine shop and
repair department jointly showed a loss, thus ignores the Respondent's own
method of determination.
Furthermore, vacations were granted in 1949, when the loss was greater than
that shown for the corresponding period in 1950. If emphasis be placed on the
more serious loss in the second half of 1949, that loss was apparently considered
as far back as October of that year, when ' the Respondent gave notice of its
intention to discharge two employees Yet neither at that time nor thereafter
until the threat with respect thereto hereinabove found was there any notice
concerning vacations It is sufficiently clear that the denial of vacations was
part of the plan and program of interference which the Respondent adopted.?
5. The wage incentive plan 8
Negotiations for a collective bargaining agreement between the Respondent
and the Union were terminated in July 1950. Thereafter, and on or about
November 27, James called the machine shop employees together and broached
the idea of a wage incentive plan. It called for continuation of base pay so that
the employees would not "lose," and additional payment for all production in
excess of a quota to be determined. James testified that before working out
the details of the plan, he wanted to know whether the employees were interested
in it ; if so, "it would presumably have to be submitted to the union for approval."
That the Respondent recognized the need to negotiate with the Union was
indicated by witnesses for both the General Counsel and the Respondent. The
latter misconceived its rights and it failed in its duty when, as James declared,
it sought its employees' opinion prior to spending the time and effort to devise
a plan. It is rather the function of the collective bargaining representative to
consult those whom it represents. A distinction should not be permitted be-
tween effectuation of a change in terms of employment and discussion of such
a change. Such discussion may be limited to a brief presentation of terms or
advantages or it may be prolonged. But to discuss proposed changes with
employees who have designated a collective bargaining representative is not
only to usurp the functions of that representative, but to limit and impair its
proper activities. Section 9 (a) of the Act indicates that a designated repre-
sentative's right to bargain excludes even those whom it represents, except
with respect to grievances. An employer may not deprive a bargaining repre-
sentative of its statutory rights under a plea of saving its own "time and effort."
If a proposal to employees instead of to their collective bargaining representative
after failure to persuade the latter constitutes subversion of the collective
bargaining process,' how clear is the subversion when the proposal is made
first to the employees and not at all to their representative.
7 The pattern having been established , it is not strange that the foreman and general
foreman were likewise denied vacations.
8 This is not alleged as a violation of Section 8 (a) (5) of the Act.
9 Central Metallic Casket Co , 91 NLRB 572.
CROW-BURLINGAME COMPANY 1011
f
Finally, to the extent that the incentive wage plan indicated the possibility
of increased wages, the Respondent proposed the matter directly to its employees
even while its last word to their representative was a refusal of any increases,
as will be noted.
The Respondent's activities, hereinabove described in subdivision 2, 3, 4, and 5,
constitute interference, restraint, and coercion of employees in the exercise of
rights guaranteed in Section 7 of the Act, and it is so found.
B. The alleged violation of Section 8 (a) (3)
1. Dorothy N. Lee
For 8 years, Dorothy N. Lee was employed by the Respondent as a machinist.
She was a member of the union negotiating committee. On August 30, 1950, there
was some question about her performance on the job. When told to run two
machines simultaneously , she refused , declaring that it was contrary to union
regulations to do so.
It cannot reasonably be found that the order that she operate both machines.
was intended to evoke the refusal which followed it. Lee had worked two,
machines before , although not, as now requested , the bearing machine while
turning cast iron pistons on the lathe. Further, her refusal was based not on
it claim that the direction was unreasonable or on a protestation of inability-
in the light of the difficulty which she had experienced with the pistons, but
on it mistaken notion of the union rule ; and her manner on the witness stand'
further indicated that when, after Burke told her to "draw (her) time," she
"walked out," it was in full confidence that she had the right to refuse to
operate two machines. Nor need we speculate with General Counsel whether
Lee "might have called together . . . union supporters" and thus have engaged
in concerted activity; hers was a solo, and limited, engagement. Lee's discharge
was for insubordination ; 10 it did not violate the Act.
2. D. D. Sutton
1) D. Sutton was employed in the Respondent's equipment repair department
for 3 years, during the first 2 as a trainee under the GI training program. With
other employees, he had signed a union-authorization card, voted in the election,
and in May 1950 formally joined the Union. It does not appear that he played
any leading role in organizational activities. When he signed the petition to
revoke the Union's authorization, he remarked that he was one of the youngest
in point of seniority and was careful to avoid an appearance of prominence.11
10 The Respondent so maintained , and the evidence so indicates At no time prior to
the submission of General Counsel ' s brief was it suggested that Lee was discharged
"because she mentioned the Union "
11 General Counsel "infers " that the Respondent had knowledge of Sutton's union
membership from the "facts " that ( a) there were few employees in the unit , and (b) that
Burke called the union supporters together after Lee's discharge with respect to the.
former item , knowledge of union activities , beyond and as distinguished from membership,
has been inferred ; here , any such inference would be without basis in fact since it does
not appear that Sutton engaged in such activities As for the second element, Rorke
testified that Burke spoke to "the whole bunch ," while General Counsel notes and
explains why Sutton was not called to this meeting' However, sufficient the explanation
for Sutton ' s absence , it does not indicate knowledge of Sutton 's membership any more
than a similar explanation could with respect to Enoch , who worked with Sutton, was
likewise not called to the meeting, and was-not a member of the Union
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sonfetime between April and July 1950, Sutton spoke to James about ail
increase which he had expected. He was thereafter told that his production
was not up to par, that he would not be given an increase," and that he would do
well to leave the Company.
From the evidence adduced it appears that Sutton made progress as a trainee
and was advanced to a given point; that he failed to progress 13 thereafter or to
maintain a satisfactory rate of production, as shown by an analysis of the work
done by the employees in the equipment repair department (this analysis indi-
cates that, although the Respondent charged $2 50 per hour for the work which
he did, Sutton's output was considerably less than that of the other full-time
repairmen despite the rate of only $2 per hour for the latter's work) ; that when
lie was spoken to about the matter, he maintained that his production was up to
par, but undertook to better it; and that he thereafter did not improve He was
discharged on September 6, '1950. About 2 months later, a new man, inexperi-
enced but with technical training, was hired in the repair department at a
"minimum" wage rate. He is doing rough work but, James testified, while he
cannot now fill Sutton's place, it is hoped that he will learn and do better than
Sutton did.
While the justification for this discharge is not as clear as that in Lee's case,
the evidence u indicates that Sutton's discharge was because of insufficient
production and failure to progress, and was not discriminatoiy.
C The, alleged violation of Section S (a) (5)
With its request of November 25 for a collective bargaining conference, tile
Union enclosed a proposed agreement for the Respondent's consideration and
approval. It appears that at a conference held on December 23 the Respondents
attorney pointed out that the proposed agreement was too long and contained
inapplicable provisions, and it was agreed that he would draft a sPorter
statement.
At the hearing the Union maintained that the draft thereafter submitted by
the Respondent was its counterproposal. To the extent that the Respondent
undertook to omit or modify substantive provisions (such as those relating to
wages, holidays, seniority, strikes and lockouts, and vacations), it would be
erroneous to call its product a mere redraft. On the other hand, and despite
reference to it in a letter to the union representative as a counterproposal, the
latter described in detail various differences between the Respondent's alleged
proposal and the position winch the Respondent consistently took on various
issues (those including hours of service, probationary period, and the so-called
recognition clause) ; lie further testified that he made pencil notations on the
Respondent's draft, some of which represented company proposals while others
represented union desires In all, the Respondent submitted three dh afts be-
tween December 1949 and July 1950. It is found that the drafts submitted by
the Respondent did riot and were not intended to represent its proposals, and
that subsequent departures therefrom did not constitute changes in its position.
(Several actual changes in position are hereinafter considered )
v Whether this refusal of a wage increase was cone, ted with the threat of loss of
benefits (see A3, supra ) is not here directly in issue . The violation to be considered is
not the refusal to grant an increase , but the discharge . The reasons for the latter justify
the former
13 Mertens, his immediate supervisor , testified that Sutton wasn 't interested in lea, ning,
that he was a "hard person to talk to." and became "mad" very readily The latter trait
was evident at the hearing
14 See footnote 4, supra
CROW-BURLINGAME COMPANY 1013
i\leetines were held between the Respondent and the Union on December 23,
1949, and February 11 and 28, March 28, June 16, and July 10, 1950. Some
issues uu ere agreed upon, others were not, and the Union' concluded that they
were "not getting anywhere." But the Act does not compel agreement, and,
except as hereinafter noted, the failure to agree is not chargeable to the
Respondent.
Important differences centered around the questions of wages. vacations, and
seniority, with fringe issues which were declared to be more readily deter-
minable The Respondent listed vacations as a dollars and cents item from the
point of ^ iew of cost to it, grouping it with wages. There is no denial that it
made mailable figures to support its stand that it could not afford concessions
in enthei respect; and that the Union (lid not attempt to consider such figures.
But at the risk of stressing the obvious it must be noted that good faith is
prerequisite to good faith bargaining Regardless of the seeming plausibility
of its position, the Respondent's refusal, as has been found, to grant paid vaca-
tions was motivated by its employees' union activities With respect to the
vac It ion clause in the proposed contract, the Respondent's insistence on its newly
discovered distinction between the employ ees in this unit and its other employees
was contrary to its own practice and as unlawful as its interference, berein-
above found, in for the first time refusing to grant vacations to the former group.
It is found that the Respondent withheld its consent to a vacation clause because
of its employees' union activities, and thus did not bargain in good faith
On April 11, 1950, the Union sent a letter to the Respondent's attorney in
which, it claims, it agreed to continuance of the wage rates then being paid.
While the letter does not state any such agreement by the Union, it did suggest
a readiness to negotiate 16 on that basis and certainly asked for a statement of
the Respondent's position. Such a statement was not forthcoming, and the
Respondent's failure to reply to the question as well as its failure to agree to
continuance of the existing rates or to state why it would not so agree," constitute
further failure to bargain in good faith.
Again, with respect to seniority, whatever merit or good faith might be recog-
nized in the Respondent's argument that it would be difficult to apply in a small
shop where work is done on a custom basis, and in the more general argument
against the necessity of keeping inefficient older employees in preference to more
energetic younger ones, the Respondent appears to have recognized and followed
the principle. In a letter dated October 10, 1949, it explained two proposed dis-
charges on the basis of seniority. Its unexplained change and firm stand against
a seniority clause during the collective bargaining negotiations is thus evidence
of lack of good faith.
It was further testified on behalf of General Counsel that the Respondent re-
fused during the course of the negotiations to agree in writing to matters on
which there had apparently been a meeting of the minds. To hold that negoti-
ating parties must sign such portions of a contract as have been agreed upon,
leaving remaining issues to further negotiation would make such parties reluc-
tant to admit even partial agreement and would thus militate against good
faith bargaining and agreements . Contrariwise , to consider any points agreed
upon as tentative only and subject to further negotiation more realistically
reflects the methodology of collective bargaining . The undersigned therefore
concludes that the Respondent did not fail to bargain when it refused to sign
such portions of the proposed contract as had been agreed upon.
16 This meets James' testimony that Harris declared more than once that the Union
would not consider omitting either vacations or wage increases.
16 No reduction appears to have been effected.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On,ithe other hand, both Harris and Rinke testified that the former asked for
a contract which would incorporate the existing terms and conditions of em-
ployment, but that James refused . This testimony is supported by James' letter
of April 4, 1950, in which he cautions his attorney that existing wage rates are
not to be incorporated in a contract. (Actually, the rates were continued, but
without agreement.) With the plenitude of evidence of the Respondent's lack
of good faith during the meetings with the Union , it is unnecessary to analyze
the indicated and expressed intention to meet statutory requirements and no
more : the Respondent 's attitude was that there is no requirement that wages
be maintained , and as for hours, it would meet the terms of the law but without
agreeing to existing conditions.
This attitude was further made manifest by the Respondent 's objection to a
provision in the proposed agreement that the Company would bargain collectively
with the Union, on the ground that it was required by law and therefore "super-
fluous." ( James was correct in "trying to think of it in connection with the
recognition" of the Union.) The Respondent should not have boggled at this
provision." The violation is pointed up by James' discussion of the wage incen-
tive plan with the employees directly.
Early in the negotiations, it was testified without contradiction, the Respond-
ent asked for a probationary period of 60 days for new employees in contrast
to the Union's proposal of 30 days ; later, the Respondent wanted the period
extended to 90 days. Such shifting of position bespeaks bad faith's
Rinke noted that on occasion, when the proposed agreements were taken
back to the employees, the latter withheld approval. Difficulties and discourage-
ments may explain and even justify various reactions, but they do not lessen
the seriousness of the bad faith which was clearly displayed and which does
not appear to have been caused by or connected with such withholding of
approval.
Further evidence of the Respondent's bad faith "meanwhile undermining
the Union" 10 is to be noted in its proposal of the wage incentive plan and its
sponsorship of the revocation of the representation authorization.
It has already been found that the Respondent was guilty of unlawful inter-
ference in refusing to grant vacations in 1950 With respect to the violation
of Section 8 (a) (5) alleged in this connection, it should be noted that a bar-
gaining impasse having developed, the Respondent could unilaterally take lawful
economic steps ; in denying the vacations with unlawful motivation,20 however,
it acted in "disparagement of the collective bargaining process " n
The Respondent first evidenced its bad faith in connection with various
clauses in the proposed agreement at the first conference held on December
23, 1949. It is therefore found that on said date and at all times thereafter,
the Respondent refused to bargain collectively with the Union as the represent-
ative of its employees in an appropriate bargaining unit, and thereby inter-
fered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
17 See Prosper Brozen, d / b/a B. B. Crystal Company , 70 NLRB 985 , cited in Tishomingo
County Electric Power Association , 74 NLRB 864.
'8 Franklin Hosiery Mills, Inc., 83 NLRB 276
'OR. J. Lovvorn, d/b/a Georgia Twine if Cordage Company, 76 NLRB 84.
m Because paragraphs XI (b) of the complaint omits the element of bad faith, this
finding is made under the more general allegation of paragraph XI (a).
21 Central Metallic Casket Co , 91 NLRB 572 , quoting from N. L. R. B. v. Crompton-
Highland Mills, Inc., 337 U. S. 217.
CROW-BURLINGAME COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
1015
The activities of the Respondent set forth in Section III, above, occurring
in connection with the 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
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, it will be recommended
that it cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
It has been found that the Respondent has refused to bargain collectively
with the Union thereby interfering with, restraining, and coercing its employees.
It will therefore be recommended that the Respondent cease and desist therefrom
and also, upon request, bargain collectively with the Union with respect to
wages, hours, and other terms and conditions of employment, and embody in a
signed agreement any understanding reached.
It has been further found that, by sponsoring a petition to rescind the Union's
authority, by threatening its employees with loss of benefits, by refusing to
grant vacations to its employees, and by proposing directly to its employees a
wage incentive plan, the Respondent interfered with, restrained, and coerced
its employees in violation of Section 8 (a) (1) of the Act. It will therefore
be further recommended that the Respondent cease and desist therefrom and
make each of said employees whole for the loss of vacation suffered by reason
of the interference, restraint, and coercion afore-mentioned by payment of all
wages which he would have received during such vacation 22
The refusal to bargain and the independent interference, restraint, and
coercion found herein indicate a purpose to limit and direct the organizational
efforts of the Respondent's employees. Such purpose is related to other unfair
labor practices, and it is found that the danger of their commission is reasonably
to be apprehended. A broad cease and desist order will therefore be recom-
mended, prohibiting infringement in any manner upon the rights guaranteed
in Section 7 of the Act.
For the reasons stated in the subsection entitled "The alleged violation of
Section 8 (a) (3)," it will be recommended that the complaint be dismissed
insofar as it alleges violation of Section 8 (a) (3) of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Lodge 325, International Association of Machinists, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All employees classified as machinists, machinists' apprentices and helpers,
mechanics, mechanics' helpers, welders, welders' apprentices and helpers, repair-
men and helpers employed in the Respondent's machine shop and repair depart-
ment at 520 West Capital Street, Little Rock, Arkansas, and excluding all other
employees, stock clerks, warehousemen, office and clerical employees, watch-
22 Whether a violation be'iegarded as of Section 8 (a) (1) or ( 3) of the Act , an order
for payment is warranted . Cf Rome Specialty Co., Inc., 84 NLRB 55.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men and guards, professional employees, and 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. Lodge 325, International Association of Machinists, was, on September 12,
1949, and at all times since has been, the exclusive representative within the
meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for
the purposes of collective bargaining.
4. By refusing to bargain collectively with Lodge 325, International Associa-
tion of Machinists, as the exclusive bargaining representative of the employees
in the appropriate unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain and by sponsoring a petition to revoke the
Union's authority, threatening its employees with loss of benefits, refusing to
grant vacations to its employees, and proposing a wage incentive plan, thereby
interfering with, restraining, and coercing its 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act by discharging Dorothy N. Lee and
D. D. Sutton.
[Recommended Order omitted from publication in this voiume.]
L. T. MALONE and TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS
LOCAL UNION No. 898, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER
JOHN HowE and TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL
UNION No. 898, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER . Cases Nos. V-RC-1819 and 21-IBC-18930. May 31,
1951
Decision and Direction of Elections
Upon separate petitions duly filed 1 under Section 9 (c) of the Na-
tional Labor Relations Act, separate hearings were held before Ben
Grodsky, hearing officer. The hearing officer's rulings made at the
hearings 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 these cases to a three-mem-
ber panel [Members Houston, Reynolds, and Styles].
1 Cases Nos. 21-RC-1819 and 21-RC-1820, consolidated before hearing, were later
severed for the purposes of separate hearings. The cases are again consolidated for the
purposes of decision.
94 NLRB No. 144.