Motorola, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1951

94 N.L.R.B. 1163 (N.L.R.B. 1951)

MOTOROLA, INC. 1163
them from the unit. The hostess is the wife of the manager , takes his
place during his absence, and has full authority to hire and discharge
employees , assign them work, and discipline them. The eashier-
hostess acts as cashier from 5 until 8 in the evening , and as hostess from
8 until the restaurant closing time at midnight . In the latter capacity
she has full authority to assign waitresses to various stations and can
effectively recommend hiring , discharge , and disciplinary action.
The Employer has no head waitress as such at present, but if business
increases probably will. assign the most efficient waitress to that work.
In that event she, although continuing to serve, will take =over the
hostess duties of the cashier -hostess, including authority to assign
waitresses and effectively recommend hiring, discharge , and discipli-
nary action. The chef is i n complete charge of the kitchen , including
the kitchen personnel of six employees . He effectively recommends
the hire and discharge of these employees , disciplines them, and assigns
them work.
We find that all employees of the Employer at its Ann Arbor, Mich-
igan, "Howard Johnson's " restaurant , excluding clerical employees,
watchmen, the hostess , cashier -hostess, head waitress , head waiter '2
chef, assistant manager, manager, 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.
' 5. The Employer has 8 to 10 part-time employees who, when not so
employed , are housewives or students . They work 2 or 3 nights a week
for a full 8-hour shift each night, and are paid on the same basis as
full-time employees . We find that they have a sufficient interest in
the selection of a bargaining representative to vote in the election
directed herein.
[Text of Direction of Election omitted from publication in this
volume.]
2 All parties agreed to exclude the head waiter, who apparently works only on Sundays.
No testimony was taken as to his duties.
.MOTOROLA , INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE # 49. Case No. 21-CA-863. June 12,19-51
Decision and Order
On January 5, 1951, Trial Examiner Wallace E.-Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
94 NLRB No. 1.81.
1164 DECISIONS OF NATIONAL LABOR :RELATIONS BOARD
certain affirmative'nctioin, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, and a brief in support thereof. The Gen-
eral Counsel filed a brief in support of the Intermediate Report. The
Respondent's request for oral argument is denied, as the record and the
briefs, in our opinion, adequately present the issues and the positions of
the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
The Board has reviewed',the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following addition and modification :
(1) Upon the entire record we find that the Respondent is engaged
in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction over the Respondent.
(2) In adopting the Trial Examiner's findings, we do not rely
upon his speculation as to what Rafter would have testified to regard-
ing the pendency of general wage increases had he been called upon
to testify.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Motorola, Inc., at Phoenix,
Arizona, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, District Lodge #49, as the exclusive representa-
tive of all the employees in the following appropriate unit : All em-
ployees in the machine shops and toolroom, excluding office, clerical,
and all supervisors as defined in the Act.
(b) By such conduct, by unilaterally instituting wage increases,
or in any like or similar manner, restraining or coercing its employees
in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist International Association of Machinists,
District Lodge #49, or any other labor organization, to bargain col-
lectively through representatives. of their own choosing, and to en-
gage in collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent that
MOTOROLA, INC. 1165
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Associa-
tion of Machinists, District Lodge #49, as the exclusive representative
of all the employees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours of employment, and other conditions of
employment, and if all understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its plant in Phoenix, Arizona, copies of the notice at-
tached to the Intermediate Report and marked "Appendix A." 1
Copies of said notice, to be supplied by the Regional Director for
Twenty-first Region, shall, after being duly signed by Respondent's
representative, be posted by Respondent and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees customarily are posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-first Region in
writing within.ten (10) days from the date of this Order w.$at steps
Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
Mr. Jerome Smith, for the General Counsel.
Mr. Edward M. Skagen, of Los Angeles, Calif., and Mr. James C. Jones, of
Phoenix, Ariz., for the Union.
Jennings, Strauss, Salmon & Trask, by Messrs. I. A. Jennings and Richard G.
Tleindienst, of Phoenix, Ariz., and Sears & Strait, by Mr. B:.F. Sears,. of Chicago,
Ill., for the Respondent.
STATEMENT OF THE CASE
Upon a charge and a first amended charge duly filed by International Associa-
tion of Machinists, District Lodge #49, herein called the Union, the General
Counsel of the National Labor Relations Board, herein called, respectively,
the General Counsel and the Board, by the Acting Regional Director for the
Twenty-first Region, issued his complaint dated October 19, 1950, against
Motorola, Inc., herein called Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
' This notice, however, shall be and it hereby is amended by striking from the first
paragraph thereof the words, "The recommendations of a Trial Examiner" and substitu-
ting in lieu thereof the words, "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be inserted before
the words, "A Decision and Order" the words, "A Decree of the United States Court of
Appeals Enforcing."
1166 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
V .
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the com--
.plaint, the charges, and a notice of hearing were duly served upon Respondent
and the Union.
With respect to unfair labor practices the complaint alleged in substance that
the Union° at all times material herein has been and is the majority representa-
tive of Respondent's employees in an appropriate unit, that Respondent on or
about July 10, 1950, refused, and at all times since has refused, to receive proof'
of the Union's i::ajority status, refused to bargain with the Union, and in an
attempt to deprive its employees of rights guaranteed in Section 7 of the Act,'
granted wage increases to employees in the appropriate unit.
In its answer dated November 4, 1950, Respondent admitted certain of the
allegations with respect to business operations, denied that the unit described
constitutes a unit appropriate for purposes of collective bargaining, denied the-
majority status of the Union, and denied that it had at any time refused to
bargain collectively in violation of the Act.
Pursuant to notice a hearing was held in Phoenix, Arizona, from November'
13 through 16, 1950, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel, the Union and the Respondent
were represented, participated in the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence'
hearing on the issues. At the close of the General Counsel's case-in-chief, Re-
spondent moved to dismiss the complaint as not supported by the evidence,
and when this-motion was denied moved to dismiss specific allegations of the'
complaint with respect to the appropriate unit and the refusal to bargain. I
reserved ruling on the latter motions when first made and when 'they were-
renewed at the close of the hearing. All are hereby denied. At the close of
the hearing all parties argued orally on the record. A-brief has been received
from counsel for the Respondent.
Upon the entire record in the case and from my observation of the witnesses,.
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation organized under and existing by virtue of the lawn
of the State of Illinois and is engaged in, and at all times material herein has
been engaged in, the manufacture of a wide variety of radio and electronic prod-
ucts at plants located in Quincy, Illinois, and Chicago, Illinois. At Phoenix,
Respondent's plant is under the cognizance of the Security Division of the Atomic
Energy Commission and exists primarily for the purpose of technical research
and experimentation as a subcontractor for the Sandia Corporation, a wholly-
owned Government corporation, and other agencies of the United States Gov-
ernment. During the 12-month period preceding the issuance of the complaint,
Respondent caused equipment, materials, and supplies of a value in excess of
$1,000,000 to be acquired, purchased, transported, and delivered in interstate
commerce from and through States- of the United States other than the State
of Illinois, to Respondent's plants in Chicago, Illinois, and Quincy, Illinois. Dur-
ing the same period Respondent produced and sold products of a value in excess
of $1,000,000 and caused them to be transported in interstate commerce from
its plants in Chicago, Illinois, and Quincy, Illinois, to, into, and through States
of the United States other than the State of Illinois. Also during the same period
Respondent caused equipment, material, and supplies of substantial value to
_MOTOROLA, INC. 1167
be acquired , purchased, transported , and delivered in interstate commerce from:
and through States of the United States other than the State of Arizona to the.
plant in Phoenix , Arizona.
11. THE ORGANIZATION INVOLVED
International Association of Machinists , District Lodge #49, is a labor organ-
ization admitting to membership employees of Respondent.
111. THE UNFAIR LABOR PRACTICES
A. The violation of Section 8 (a) (5) of the Act
1. The appropriate unit
Respondent ' s plant iu Phoenix , due to the character of the work performed,.
is physically separated into excluded and nonexcluded areas. Armed guards
are stationed at the various entrances to the former . A large group of pro-
fessional engineers , j unior engineers , and technical laboratory assistants, who
are engaged in primary research and development , is employed . Additionally,
the Company employs hourly rated workers as follows:
wiring assemblers-------------------------------------------- 50
precision assemblers------------------------------------------ 3
assembly supervisors----------------------------------------- 3
cafeteria clerks----------------------------------------------- 3
internal expediters------------------------------------------- 2
final inspectors ----------------------------------------------- 3
floor inspectors -----------------------------=---------------- 2
lab-mechanical inspectors------------------------------------- 2
receiving inspectors ------------------------------------------ 5
sub-assembly line inspectors----------------------- _------------ 4
night janitors------------------------------------------------ 5
maintenance men -------------------------------------------- 7
platers and polishers-------------------------
shipping and receiving clerk--- ------------------------------- 1
silver solder and welder-------------------------------------- 1
stock chasers------------------------------------------------- 3
stock clerks-------------------------------------------------- 2
radio line testers-------------------------------------------- 12
model makers------------------------------------------------ 4
tool and die makers-- ---------------------------------------- 6
machinists--------------------------------------------------- 4
general machine operators_.----------------------------------- 5
instrument makers ___________________________________________ 2
mechanical engineering assistants---------------------------- 2
,The- unit asserted to be appropriate by the General Counsel and the Union
would include only the 23 employees in the last 6 classifications . Group leaders.
are to be found in some of the divisions but do not possess the authority of
supervisors as defined in the Act . With the exception of the cafeteria clerks
and the shipping and receiving clerk, some in each classification work in the
excluded areas.
In July 1950, when the events occurred which give rise to this proceeding, the
employees in the unit assertedly appropriate worked in what has variously
1168 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
been termed in the record as the machine shops or the model shops under the
supervision of a single foreman. One group in the North model .shop, a non-
excluded area , works in the fabrication of experimental parts which are used
in the making of phototypes . The remaining two locations are in an excluded
area, in one of which precision devices are produced and another where set
operations are used to produce pilot production quantities of the units in process.
Each shop now has its separate foreman.
All parts are subject to inspection and some are routed for plating and polish-
lug. Others may require silver soldering and other processing . This work is
performed in various areas of the excluded section adjacent to the machine shops
described above . Finished parts are routed to the stockroom from which they
are sent on call to assembly positions , are incorporated in precision mechanical
.assemblies , or are assembled as part of radio-type devices . Wiring of,assembly
components.- and parts is performed by wire-line assemblers , add together with
additional subassemblies fabricated in the shop, are routed into the final as-
sembly areas . Individuals working in nonexcluded areas generally are not
permitted to enter an excluded area and an individual working in a certain
excluded area may not be permitted to enter another and different such area.
Due to security regulations , all work - on Respondent 's products at Phoenix must
be, performed within the plant and none can be subcontracted except such prod-
ucts as have been declassified . Approximately one-half of the plant is in the
excluded area. The parties stipulated that the job classification of.tool and die
makers , model makers , and machinists call for the employment of traditional
skills of those job classifications , and that such employees work from blueprints,
devise tools and dies, and make models . The evidence makes it clear, also, that
instrument makers and mechanical engineering assistants are required to have
similar but higher skills than those of tool and die makers , model makers, and
machinists.
The Respondent 's objection to the unit described in the complaint as voiced
at the hearing is essentially that the entire operations at the Phoenix plant
are so closely integrated that a segmentation on any basis of skill or depart-
mentization is impractical . Further , Respondent contends it is completely de-
pendent on the continued functioning of every department and operation in
the plant to enable it to meet its commitments to the Atomic Energy Commission
and the military services ; that a work stoppage in any department would bring
all to a halt without the possibility of securing outside assistance by way of
subcontracting to substitute for the struck department . Furthermore, Re-
spondent contends that even if the tool and die makers , the model makers, the
,machinists , the instrument makers , and the mechanical engineering assistants
could be found to constitute a true craft division and thus an appropriate unit,
the community of interest perhaps present in such a grouping is diluted if not
destroyed by the insistence of the Union and the General Counsel that machine
operators be included . The job of machine operator , Respondent asserts, does
not require the traditional skills of the machinists ' trade and does not comprise
a ,part of a true craft grouping . Respondent also points to the fact that any
grouping such as the complaint envisages would include machinists, tool and
die makers and the like , no longer under single supervision and divided between
the excluded and nonexcluded areas.'
'Respondent also claims that any unit would be unstable ; that the continuance of its
operation is dependent upon so many unpredictable factors as to preclude judgment upon
the question of expansion or contraction . No doubt this may be true of any experimental
laboratory but there has been but slight change in the number of workers during the
last 6 months.
MOTOROLA, INC. 1169
The General Counsel and the Union assert that the unit contended for is
.appropriate because of the functional coherence of the employees affected and
because they do in fact constitute a group of workers having comparable skills
who work to some extent interchangeably and who traditionally have been rep-
resented in a craft unit.
Without making the unnecessary determination that the unit described in
the complaint is the only appropriate unit at the Phoenix plant, it seems clear
that it is a feasible grouping for purposes of collective bargaining. When the
employees in this unit were organized in July, all of them worked under the
same foreman. and to some extent then as now worked on occasion in both the
excluded and the nonexcluded areas as the requirements of the operations
dictated, dependent, of course, upon individual clearances under security pro-
visions. Furthermore, while the argument that machine operators as the
term is generally understood does not necessarily encompass employees with
the traditional skills of machinists, it seems clear, and I find, that the machine
operator classification at the Phoenix plant has been and is now filled by men
who, if not yet fully trained machinists, are in the process of reaching such
competency. The machinery referred to includes drill presses, lathes, and the
like, the operation of which is part of the machinists' skill. Other evidence,
to which reference will later be made, leads to the conclusion that before the
demand for bargaining was made by the Union, the Respondent, considered for
purposes of wage payment at least the employees in the described unit on a basis
different from other hourly rated employees, and 'in addition to the fact of
including such employees in a department under a single foreman, dealt with
respect to them as if they constituted, as I find that they did and do, a clearly
identifiable group.
In short, the unit described in the complaint is an appropriate unit for pur-
poses of collective bargaining and arguments advanced by Respondent to per-
suade to a contrary conclusion are not substantial. I find that on July 10, 1950,
and at all times since, a unit of model makers, tool and die makers, machinists,
general machine operators, instrument makers, and mechanical engineering
assistants : constituted a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
2. The majority status of the Union
On July 7, 1950, Respondent employed 24 workers in the appropriate unit, of
which 19 had on that date designated the Union to represent them for bargain-
ing purposes. I find that on July 7, 1950, and at all times material since, the
Union was and has been the majority representative, of the employees in the
appropriate unit for purposes of collective bargaining within the meaning of
.Section 9 (a) of the Act.
3. The refusal to bargain
James C. Jones, president and business agent of the Union, testified that he
came into possession of 19 signed.union designation cards and on July 10 called
on Daniel Noble, Respondent's vice lresident at the'Phoenix plant, and requested
recognition.' According to Jones, he told Noble that he represented a majority
? These latter two classifications were not in existence on July 10 but the skills required
for such work were possessed and used by the workers then employed.
3 Jones was accompanied on this occasion by 0. S. Osmondson, the Union's secretary.
Respondent argues that on all points where Jones' testimony disagrees with Noble's as
to the conference , Jones must be disbelieved because Osmondson was not called in cor-
roboration . I find no merit in this contention.
953841-52-vol. 94-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the machinists and that he had in his possession signed authorization cards
which he was willing that any disinterested party might check in order to sub-
stantiate his assertion. According to Jones, Noble replied that he was totally
inexperienced in such matters but that there was a labor relations department
at the main plant in Chicago to which he would refer the question. Jones went
on to explain, he testified, that the employees had a right to be represented and
to obtain recognition of their bargaining representative. There was further
conversation, according to Jones, in which Noble intimated, if he did not make
a firm commitment, that an answer would be forthcoming within 10 days.
Noble's version of this meeting differs in some respects from that of Jones'.
According to Noble, after Jones had made his claim of majority and his request
for recognition and after Noble had expressed his lack of knowledge in. such
matters, Jones explained that the Board could conduct an election. In the
belief, according to Noble, that some such procedure would be followed, and with-
out any offer by Jones to submit authorization cards for inspection, the meeting
ended. Noble agreed, however, that he had promised to reply to the. request
for recognition in about 10 days. From this point forward there is little if any
dispute as to the happenings on any material point. Shortly after Jones left
the plant Noble called in his two principal assistants, Arthur Smead and James
Dunifon, to discuss the situation with them. Smead suggested that if Jones
did not display authorization cards it was probable that he did not possess them.4
A little later in the day Noble telephoned Kenneth Piper, Respondent's Director
of Human Relations in Chicago, told Piper of the visit from Jones, and sug-
gested that Piper come to Phoenix in connection with the demand of the Union
and also in connection with a wage review. Piper did so, arriving in Phoenix
on July 12. Upon his arrival Piper met with each of the employees in the
appropriate unit individually, questioned each as to his attitude toward Respond-
ent, and learned from some of them at least, that they were dissatisfied with
their earnings. All of the employees were called in meeting July 13, told of the
benefits incident to employment with the Respondent such as pensions and in-
surance, and were advised that a wage increase would shortly be forthcoming.
Such a wage increase was instituted on July 17. Employees in the appropriate
unit were granted pay retroactively to June 19.
On July 14 Jones, learning that wage increases were about to be granted,
telephoned Noble to protest asserting that, in view of the Union's demand for
recognition, a wage increase was "unethical." Noble replied that be considered
it to be unethical to withhold a wage increase which had already been sched-
uled. 'Jones then asked if he could speak to Piper in connection with the question
of recognition. Noble replied that Piper was not available at the moment but
that he would advise him of Jones' call. Noble did as he promised and Piper
was told that Jones desired to speak to him. Piper testified in this connection
that he was unsure of the scope of the unit in which the Union was demanding
recognition, was unsure that the Union represented a majority of those em-
ployees and desired further time to gain information on these points before
meeting Jones. Consequently Piper, after advising Respondent's local counsel,
Irving•A. Jennings, of the Union's demand and instructing Jennings to consult
with Jones to learn as much'as he could in connection with the unit and majority
questions, departed for Chicago. Jennings, 3 or 4 days later, attempted to reach.
4 Noble also spoke to another employer in the area, Hawley, who. assertedly, said that
Jones had once claimed that the Union represented Hawley's employees but that when
Hawley questioned the claim, the matter was dropped. This, information, according to^
Noble; led him further along the road to the conclusion that Jones was a "bluffer."
MOTOROLA; INC. 1,171
Jones by telephone but learned that he was out of town. Piper returned from
Chicago on July 19, consulted further with Jennings, and coming to the conclu-
Sion, he testified, that the unit sought was inappropriate, returned again to the
main office. On Saturday, July 22, Jones returned to town and answered Jen-
nings' call by going to the latter's office. Jennings told him that the work at
Respondent's plant was highly confidential, that the employees were well paid
and getting along satisfactorily, and that Jones was ill-advised in his attempt
to organize them. The question of unit was barely adverted to, Jones saying
that he wanted to represent the machinists, and Jennings, in his testimony, ad-
mitting that he understood that Jones meant substantially those employees in the
appropriate unit. Jones protested the fact that a wage increase had been given
and Jennings assured him that the raise was not granted in order to defeat the
Union. Jones suggested that the Respondent consent to an election but Jen-
nings refused 5
Respondent's explanation for the granting of wage increases following, as it
did,, so closely on the heels of the Union's request for recognition, is that such
action had been in contemplation for a considerable period of time. In-late April
or early May, according to Smead, Dunifon, and Noble, the question of a wage
review had been broached and the suggestion made that Kenneth Piper be
brought out from Chicago in order to survey the operation and to determine
what rates should be paid. Piper was then apprised of the situation and agreed
to come. During the month of June, Noble was in Chicago. On the 15th of
that month, Respondent, through Piper, established higher wage rates for skilled
machinists and kindred classifications in the Chicago machine shops. The mem-
orandum to the supervisory personnel concerned in Chicago, requested that the
rates for such classifications in Phoenix also be adjusted upward. For some
reason entirely unclear in the record, this memorandum was not sent to any
official with authority to make changes in the Phoenix rates. On June 19 and
20 Smead from Phoenix telephoned Noble in Chicago, and during the conversa-
tions brought up the subject of wage adjustments. Noble answered that adjust-
ments had just then been made in Chicago and directed Smead to have the ma-
chine shop foreman recommend rates for the employees under his direction.
The same direction was given to Dunifon with respect to other groups of workers.
This Dunifon and Smead did. During the telephone conversation Smead advised
Noble that a change in wage schedules should be made quickly to which Noble
replied that he would be returning to Phoenix about the 15th of July and the mat-
ter could be taken care of then. Noble testified that after receiving these calls
from Smead he sought to reach Kenneth Piper but learned that Piper was on
vacation until July 10. As the evidence shows Piper to have been on vacation for
2 weeks beginning June 24, it follows that Noble's attempt to locate him could
not have been made before that time .6 Noble returned to Phoenix on July 5
and within the next 2 days received from Smead or Dunifon, he testified, their
recommendations with respect tb wage increases for the machinists' group, It
assemblers, 4 laboratory assistants, and 3 other individuals whose classification
does not appear. Noble testified that he, busy in other matters, glanced at
the recommendations, said that they looked all right, and pushed them aside
temporarily. Although Noble conceded that he desired Piper to come at once
5 The fact that the Union filed a representation petition on July 18 Is not material on,
the question of refusal'to bargain.
6 In its brief , Respondent implies that Noble spoke to Piper on June 20 and learned that
the latter -would not be "available" because of the impending vacation until July 10..
Thus it is argued Piper's visit to Phoenix in connection with wages was scheduled as
early as June 20 to be made as soon as the vacation ended. The record does not support
the implication or the argument. Noble did not testify that he spoke to Piper on June 20'
but only, mistakenly I believe, that be sought to do so on that date.
'1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Phoenix in connection with the Union's demand for recognition, he asserted
that the additional purpose of Piper's visit, to review wage rates, was dictated
only by a desire to conform the rates with those in other of Respondent's opera-
tions, to maintain Respondent's competitive position in the Phoenix labor market,
and generally to bring the wage rates paid at that operation into balance.
There is some suggestion that employees at Phoenix could expect a review of
wage rates at the middle and the end of the calendar year. There is testimony
that an executive committee existed having this function and it is at least
intimated that the changes in wage rates in July 1950 were in pursuance of a
routine practice of Respondent. However, there is no evidence that the executive
committee .was even considering wage changes at the time when Piper came to
Phoenix on July 12 to begin his survey and the council as such was not consulted
in that connection. The evidence does convince me, however, that changes in
wage rates were at least under consideration in early July before the Union made
its demand fir recognition ; that .even had the Union failed to appear on the
scene, it is probable that within a reasonably short period some increases would
have been granted. However, when Eddie Neslund, a tool and die maker, asked
his foreman, Edward Rafter, for a raise, Rafter told him about July 10 that he
would try to get him a raise of 15 cents an hour. • John Hornyak testified credibly
that when he asked Rafter for a raise about July 1, Rafter said that perhaps
he could get him a 5-cent an hour raise and, when Hornyak indicated that he
might not stay for that small amount, finally suggested 10 cents. When the
raises were granted Neslund's rate was increased 35 cents an hour and Hornyak's
by the same amount. The employees in the appropriate unit fared exceedingly
well as a result of Piper's visit. By virtue of wage increases and reclassifications,
their wage rates were increased 15 to 60 cents an hour. These very substantial
increases coming as quickly as they did after the demand for recognition and
seemingly favoring the employees in the appropriate unit above the other work-
ers in the plant, lends persuasive force to the General Counsel's contention that
they were in fact granted at the time and in the amounts stated for the purpose
of discouraging membership in the Union and persuading the employees that
they would be better off without representation. Such a course of conduct is
not unfamiliar in labor relations. There is nothing particularly novel about an
employer responding to the stimulus of a representation claim by seeking to
alienate a union's followers by means of a wage increase That Respondent's
purpose here was not precisely that is difficult to believe. Respondent's progress
toward reviewing wages at the Phoenix. plant, correcting inequities and estab-
lishing wage rates sufficiently attr<<;tive so that it might compete successfully
in the labor market for the skills required, was desultory until the visitof Jones
and I do not believe that following this visit Noble telephoned Piper and arranged
for him to come immediately to the Phoenix plant because of any firm arrange-
ment made before the Union's demand occurred. The evidence is clear and the
inference inescapable that Piper's presence at the Phoenix plant was dictated
by the exigencies of the moment ; that the quick action in raising the wages of
the employees had for its purpose the discouragement of self-organization, that
the Respondent hoped in this fashion to persuade its employees that no need
existed for them-,to have representation by the Union.
In arriving at the conclusion as to the purpose of the wage increases I
have placed some reliance upon the substantial amounts involved, the disparity
between the possible increases suggested by Rafter to Neslund and Hornyak
and the amounts they actually received after Piper's visit. These amounts
would have less significance if, as Smead, Donifon, and Noble testified; the
rates established by Piper were in conformance with recommendations drawn
MOTOROLA, INC. 1173,
up by Smead and Donifon on June 24 and hurriedly approved, after cursory
examination, by Noble on July 6 or 7. It is a matter of some difficulty to
determine the line between fact and fancy in the developments concerning wages
from June 19 to the arrival of Piper. I have no doubt that Smead and Noble did
discuss wages in their telephone conversations and that Foreman Rafter was
directed to submit recommendations in this connection affecting the employees
under his supervision. The next development, too, seems to follow in logical
enough sequence and to have no inherent quality of unlikelihood about it-
the submission by Rafter of his list of proposed raises. Then, still as one
would expect it to be, Smead, Donifon, and Rafter collaborated in arriving at
a final recommendation for submission to Noble. According to Smead, Doni-
fon, and Noble, what was submitted (in this record in the form of a hand-
written sheet with names, present rates, and proposed rates) was approved
by Noble on July 6 or 7 and put into effect by Piper after review. Rafter
recommended that six individuals be gi' en a raise of 5 cents, that eight be raised
10 cents, that two be raised 15 cents, and that one be reclassified and raised
35 cents. He made no recommendation as to seven others. The recommendation
assertedly made by Smead and Donifon, approved by Noble, and put into effect
by Piper, granted raises as follows :
l of 15¢ 3 of 35¢
3 of 200 6 of 400
7 of 25¢ 1 of 45¢
2 of 300 1 of 60¢
According to the testimony of Smead, the recommendations which Piper followed
were in final form as early as June 24 and Rafter participated in the discussions
which preceded their drafting. I do not credit this testimony. If these sub-
stantial increases were in fact in process, why did Rafter suggest to Neslund on
July 1.0 and to Hornyak about July 1 that they could expect no more than
15 cents and 10 cents respectively? He was not called as a witness to explain.
The reason for the failure of Rafter to testify in this connection is to be found,
I am convinced, in the fact that he had on June 24 recommended to.Smead and
Donifon that increases be granted to Neslund and Hornyak in the precise amounts
that he later suggested to them as possible. I believe that he would have test-
ified that he had no information•as to the pendency of raises more substantial
than that. I conclude that whatever the recommendations of Smead and Doni-
fon may have been to Noble they were not that the employees in the machine
shops be increased to the extent and in the amounts that they were by Piper.
The final question concerns Respondent's good faith in stating its refusal to
bargain with the Union. The principle is so well established as to require
no citation of authority that an employer need not bargain with the purported
representative of his employees if he entertains a reasonable and honest doubt
as to the majority status of the Union or the appropriateness of the unit until
such time as the doubt is dispelled. So it is true here that if Respondent ques-
tioned'the Union's majority on July 10 or July 22, if it in good faith believed that
the unit which the Union sought to represent did not constitute one appropriate
for bargaining purposes, it was under no compulsion to extend recognition or to
enter into bargaining negotiations.. Were it not for the substantial wage in-
creases so precipitately granted, it would be difficult to say that the evidence
establishes by its preponderance such a lack of good faith on the part of Respond-
ent as to support a conclusion that Section 8 (a) (5) was violated. But the
increases were granted . In the circumstances and in the fashion described
they were granted for an unlawful purpose and any presumption of good faith,
1174. DECISIONS OF NATIONAL - LABOR - RELATIONS BOARD
any honest doubt that in other premises it might well be found the Respondent
could have held, is dissipated by this conduct. If the Respondent doubted the ma-
jority of the Union on July 10, Noble did not say so. If there was confusign in
the minds of the responsible officials of Respondent as to the scope of the unit in
which the Union sought recognition, no questions were directed to Jones or
anyone acting in behalf of the Union to determine just which employees the
claimed unit would embrace. Instead, another course was pursued-to alienate
the Union's following. When an employer refuses to grant recognition in order
to gain time to undermine the Union or otherwise to interfere with the rights
of employees guaranteed by the Act, and when it appears that the Union was
in fact, on the date the claim was made, a majority representative in an
appropriate unit, the employer may not escape his statutory duty to bargain on
any claim of good faith doubt. I find that the Respondent's refusal to recog-
nize the Union on July 22 was but a reaffirmation of a position taken when
the first request was made July 10:7 that Respondent's request for time in
order to consider the Union's demand was made for the purpose of depriving
the Union of its majority and lessening by unlawful means the desire of em-
ployees for representation. In consequence I find that the failure on July
10, 1950, to recognize and to bargain with the Union, the majority representative
of its employees in an appropriate unit, was a refusal to bargain and that Re-
spondent thereby violated Section 8 (a) (5) of the Act.
Two subsequent wage increases granted without notice to or consultation with
the Union are separate and distinct violations of the same Section .8
B. Interference, restraint, and coercion
By the refusal to bargain and by granting wage increases for the purpose of
alienating the interest of the employees from the Union, Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have 'a close, intimate, and substantial relation to trade, traffic, and commerce
.among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, it will.
be recommended that it cease and desist from such conduct and take certain
affirmative action designed to effectuate the policies of the Act.
71 have not resolved the conflict in the testimony of Jones and Noble concerning the
offering of authorization cards on July 10. 1 do find that Jones made no physical display.
of the cards so that Noble could recognize them for what they were. Even if Jones did,
as he testified, offer to submit the cards for a check against payroll records, Noble could
properly have rejected such proof of majority, if, he felt it to be unsatisfactory, without
violating any command of the Act. But Noble's conduct was not consistent with that
of one concerned about any _question of majority or appropriate unit. His call to Piper
was for help-help to be forthcoming in some guise so as to avoid the statutory duty to
bargain. Piper supplied it. 1
6 TheValley Broadcasting Company, 88 NLRB. 35. _
WILLIAM PENN BROADCASTING COMPANY 1175
Having found that Respondent has refused unlawfully to bargain with the
Union, it will be recommended that Respondent cease and desist from such
refusal and upon request bargain with the Union in respect to wages, hours, and
other terms and conditions of employment.
Having found that Respondent granted wage increases for the purpose of
interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed by the Act, it will be recommended that Respondent cease and desist
from such conduct.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following :
CONCLusIoNs of LAW
1. International Association of Machinists , District Lodge #49, is a labor
organization within the meaning of Section 2 ( 5) of the Act.
2. All employees in the machine shops and toolroom at the Respondent's
Phoenix, Arizona, plant, excluding office, clerical, and supervisory employees
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 Association of Machinists, District Lodge #49, was, on July 7,
1950, and at all times since has been, the exclusive representative of all the
employees in the appropriate unit for purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain on July 10 and July 22, 1950, and thereafter, and
by unilaterally instituting wage increases on July 17 , 1950, and thereafter,
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 conduct, Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has thereby 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.
[Recommended Order omitted from publication in this volume.]
WILLIAM PENN BROADCASTING COMPANY and INTERNATIONAL BROTH-
ERHOOD OF ELECTRICAL WORKERS, AFL. Case No. 4-CA-354. June
12, 1951
Order Reopening Record
On April 2, 1951, the Board issued its Decision and Order in the
above-entitled matter, in which it dismissed the complaint on the
ground that the General Counsel failed to establish prima facie the
violation alleged. The Board held that the General Counsel failed
to prove that a real question concerning representation existed when
the Respondent renewed its contract with the ACA on February 3,
1950, in that, among other things, he did not produce necessary evi-
dence that the representation petition of the IBEW, pending at the
94 NLRB No. 188.