Na-Mac Products Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 298 (N.L.R.B. 1946)

In the Matter of NA-MAC PRODUCTS CORPORATION and UNITED ELECTRI-
CAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1421, CIO
Case No. 21-C-2532.-Decided August 26, 1946
Mr. Eugene M. Purver, for the Board.
Mr. J. Wesley Cupp, of Los Angeles, Calif., for the respondent.
Mr. Frank E. Spector, of Los Angeles, Calif., for the Union.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
ORDER
On February 18, 1946, Trial Examiner Peter F. Ward issued his
Intermediate Report in the above -entitled proceeding , finding that
the respondent had engaged in and Was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter , the respondent filed
exceptions to the Intermediate Report, and a supporting brief. On
June 13, 1946, the Board, at Washington , D. C., heard oral argument,
in which the respondent and the Union participated.
The Board has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief filed by respondent, and
the entire record- in the case, and hereby adopts the findings , conclu-
sions , and recommendations of the Trial Examiner , insofar as they
are consistent with our Decision and Order hereinafter set forth.
1. The Trial Examiner has found that on May 24, 1945 , and at all
times material thereafter , the respondent refused to bargain collec-
tively in good faith with the Union as the certified representative of
the respondent 's employees in an appropriate unit, and recommended
that the respondent be ordered to bargain, upon request , with the
Union. For the reasons set forth in the Intermediate Report, we
agree that at least until August 7, 1945 , the date on which the re-
spondent broke off all negotiations with the Union, the respondent
engaged in dilatory bargaining tactics, made no reasonable effort to
70 N. L.R.B,No.32.
298
NA-MAC PRODUCTS CORPORATION 299
conclude an agreement with the Union, and unlawfully threatened
postponement of negotiations until certain other unfair labor practice
charges, filed by the Union with the Board, were "disposed of or with-
drawn," and thereby disregarded its obligation to bargain collectively
with the Union, in violation of Section 8 (5) of the Act.'
Normally, where an employer has unlawfully refused to bargain
collectively with an exclusive bargaining representative, our remedy
is to require the employer to bargain collectively with such representa-
tive, notwithstanding any interim impairment of its majority status.
However, because of certain radical changes in the respondent's
operations and in the size and composition of the bargaining unit,
which occurred prior to the hearing before the Trial Examiner as
a result of reconversion from war to peacetime operations, we do
not adopt the Trial Examiner's recommendation that the respondent
be required to bargain collectively with the Union`. It appears that,
at the time the Union was certified, the respondent was engaged in
the production of aircraft parts for national defense, but that some-
time after its refusal to bargain with the Union it had completely re-
converted to its normal peacetime operations of manufacturing drip
cups, egg beaters, and other articles. In so reconverting, the respond-
ent eliminated its machine shop, which had been established and used
principally in connection with its war production, but kept substanti-
ally intact its regular polishing department for production of its
peacetime products. Concomitantly, by September 1945, the respond-
ent had reduced its force from over 120 employees to less than 50,
most of whom are now employed in the polishing department. The
Metal Polishers Union is now claiming to represent a majority of the
employees in the unit as contracted.'
In these peculiar circumstances and in the light of the principles
enunciated in the Electric Sprayit Company case,' we are not convinced
'we do not adopt the Tiial Examiner ' s finding that the respondent , by granting a uni-
lateral wage increase to the employees of the metal polishing and plating department, vio-
lated the Act, for the reason that the record fails to disclose with any degree of certainty
when this incident occurred
z On August 24, 1945, the Metal Polishers Union filed a representation petition covering
these employees The Regional Director refused to issue a notice of hearing thereon, and
no appeal to the Board was taken.
3 67 N. L. R. B. 780 . In the cited case , a majority of the Board ( Mr Houston dissenting),
under circumstances analogous to those in the instant case, entertained a new representa-
tion petition filed by a rival union, shortly after the Board had certified another organiza-
tion as the bargaining representative The opinion of the majority reads , in part, as
follows :
We stated in the Moller case, as we do here , that when it is demonstrated that an
employer ' s personnel has been cut back to its pre-war size, by reconversion from war
to peace -time production , and when these , together with other appropriate circum-
stances , may warrant a re-determination of representatives , or of the appropriate unit,
a new petition for investigation and certification of a collective bargaining representa-
tive may be filed with the Board . Mere reduction in the size of the unit, howpver, is
not sufficient . There must be "other appropriate circumstances ," such as a material
change In the Company 's operations or processes in addition to a contraction of the
unit.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it would effectuate the policies of the Act to require the re-
spondent to bargain collectively with the Union. This finding is not
to be taken, however, as authority in any other-case where the facts
differ from those here present.
To remedy its refusal to bargain with the Union, we shall order
the respondent to cease and desist from refusing to bargain collectively
with the duly designated representatives of its employees.4
2. The Trial Examiner found that the respondent, by announcing
to its employees that it would never sign a "closed-shop or union-shop
provision," violated the Act. We do not agree. Inasmuch as the
record shows that, at a bargaining conference held on the day before
the announcement was made, the respondent considered and then re-
jected the Union's' demand for a closed shop; it is clear that the
subsequent publication of the respondent's stated position did not
constitute a coercive act or an unlawful anticipatory refusal to
bargain.
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, Na-Mac Products Corpora-
tion, Los Angeles, California, and its officers, agents, successors, and
assigns shall: ,
1. Cease and desist from :
(a) Refusing to bargain collectively with duly designated repre-
sentatives of its employees.
(b) Discouraging membership in United Electrical, Radio & Ma-
chine Workers of America, Local 1421, CIO, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire or tenure of employment, or any terms or con-
ditions of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Electrical, Radio & Ma-
chine Workers of America, Local 1421, CIO, or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities, for the, purpose of
collective bargaining, or other mutual aid or protection, as guaranteed
in Section 7 of the Act. -
Cf Matter of Syncro Machvne Company, Inc., 62 N L R B. 985
In this respect, the instant case is distinguishable from the M . T Stevens case, 68
N L R. B. 229, in which a majority of the Board (Mr. Houston dissenting ) also held that
an analogous statement , made by an employer immediately before an election , did not per se
constitute an unfair labor practice.
NA-MAC PRODUCTS CORPORATION 301
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Make whole Edmund Miller for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
in the manner provided in the section of the Intermediate Report
entitled "The Remedy" ;
(b) Post at its plants at Los Angeles, California, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the respondent's representative, be
posted by' the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable 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, what steps
the respondent has taken to comply herewith.
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, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of.their right to self-organization,
to form labor organizations, to join or assist United Electrical,
Radio & Machine Workers of America, Local 1421, CIO, or any
other labor organization, to bargain, collectively through repre-
sentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid
or protection.
We will not refuse to bargain collectively with the duly desig-
nated representative of our employees.
We will make whole Edmund Miller for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become or remain members of the
above-named union or, any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
0
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
NA-MAC PRODUCTS CORPORATION, INC.
Employer.
By -----------------------------------=----
(Representative) ( Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
MR. JOHN M. HOUSTON, dissenting in part :
In the light of the views expressed in my dissenting opinion in the
Electric Sprayit Company case,s I am unable to concur with my col-
leagues in refusing here to invoke our normal remedy for a violation of
Section 8 (5) of the Act. Under the circumstances of this case, and espe-
cially as our certification of the Union had been in effect less than 2
months before the respondent's refusal to bargain, I would require the
respondent to bargain collectively with the Union, as recommended by
the Trial Examiner. In all other respects I agree with the majority
opinion.
INTERMEDIATE REPORT
Mr. Eugene D1. Purger, for the Board.
Mr. J. Wesley Cupp, of Los Angeles, Calif, for the respondent.
Mr. Frank E Spector, of Los Angeles, Calif., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by United Electrical, Radio & Machine
Workers of America, Local 1421, affiliated with the Congress of Industrial
Organizations, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Twenty-first Region
(Los Angeles, California), issued its complaint dated December 7, 1945, against
Na-Mac Products Corporation, Los Angeles, California, herein called the re-
spondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1),
(3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing
were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance
(1) that on or about April 1945 the respondent threatened one of its employees
with discharge if he acted as an observer for the Union in a Board ordered
election among the respondent's employees; (2) that on or about June 1, 1945,
the respondent terminated the employment of Edmund Miller, an employee,
and thereafter refused to reinstate him to his former or equivalent position
because of his membership in and activities on behalf of the Union ;
(3) that all the respondent's production and maintenance employees, excluding
office clerks, executives and foremen, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning-of the Act; that from on or
about April 19, 1945, a majority of the employees in said unit had designated
6 67 N. L. R. B. 780.
0
NA-MAC PRODUCTS CORPORATION 303
the Union as their bargaining representative and by virtue thereof the Union,
since April 19, 1945, has been the exclusive representative of all the employees
in said unit for the purposes of collective bargaining ; and that the respondent
from on or about May 24, 1945, and at all times thereafter, has refused and
failed to bargain collectively with the Union in good faith ; and (4) that by the
acts described above the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights' guaranteed in Section 7 of the Act.
On or about January 9, 1946, the respondent filed its answer to the complaint,
denying that it had engaged in the unfair labor practices alleged
Pursuant to notice a hearing was held in Los Angeles, California, on January
10 and 11, 1946, before Peter F Ward, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by coun-
sVl and a representative appeared for the Union: All parties participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses
and to introduce evidence bearing on the issues was afforded all parties. At the
close of the Board's case and at the close of the hearing counsel for the Board
moved, with approval of counsel for the respondent, that the pleadings be amended
in formal matters to conform to the proof. The motion was granted. The parties
waived oral argument at the' conclusion of the hearing. While the parties were
afforded an opportunity to file briefs with the undersigned, no briefs have been
received.
Upon the entire record in the case and fioni his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Na-Mac Products Corporation is a California corporation with its plant and
principal office located in Los Angeles, California, where, prior to on or about
August 14, 1945, it was engaged in the manufacture, sale, and distribution of air-
craft parts and pneumatic riveting hammers used by the Armed Forces of the
United States of America and in the production of household articles, and since
August 14, 1945, has been engaged in the production of cosmetic containers, egg
beaters, and drip cups. Respondent by its answer admits that it is engaged in
interstate commerce as defined by the Act. ' -
a
II THE ORGANIZATION INVOLVED
United Electrical , Radio & Machine Workers of America, Local 1421, is a labor
organization affiliated with the Congress of Industrial Organizations and admit-
ting to membership employees of the respondent.
11
III. THE UNFAIR LABOR PRACTICES
A The refusal to bargain collectively; interference, restraint, and coercion
1 The appropriate unit
The complaint alleges that a unit composed of the respondent's production and
maintenance employees, excluding office clerks, executives, and foremen, would
insure to the respondent's employees their full right to collective bargaining and
other%vise effectuate the policies of the Act. -
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a prior representation proceeding, the Board, on October 21, 1942, issued its
decision,' in which it found, pursuant to a stipulation by the Union, The Los
Angeles Metal Trades Council, herein called the MTC, and the company, that all
production and maintenance employees of the respondent, excluding office workers,
executives, and foremen, constituted an appropriate unit.
In a second prior representation proceeding, the Board, on March 23, 1945, issued
its decision,' in which it found, pursuant to agreement of the same parties (the
respondent-company taking no definite position as to the appropriateness of the
unit), that all production and maintenance employees of the respondent, exclud-
ing-office workers, executives, and foremen, constituted an appropriate unit.
On May 18, 1945,3 the Board certified the Union as the exclusive representative
of all employees in the appropriate unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment and other conditions
of employment.
Subsequent to such certification the respondent filed its petition for decertifica-
tion with the Regional Director'for the Twenty-first Region, contending that,
the unit as established was inappropriate. After the Regional Director had de-
nied such petition and refused to conduct a hearing thereon, the respondent, on
October 12, 1945, filed its Petition for Review of Regional Director's Ruling
and a Motion de novo for decertification with the Board. On October 23, 1945, the
-Board issued its order wherein it denied said petition and motion'
The respondent's answer herein denied that the unit as alleged in the com-
plaint constitutes a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. In support of this contention,
the respondent introduced herein copies of its Petition for'Review and Motion
de novo, above referred to. In view of the numerous determinations by the
Board as to the appropriate unit, this contention is clearly without merit.
The undersigned finds that all production and maintenance employees of the
Na-Mac Products Corporation, Los Angeles, California, excluding office clerks,
executives, foremen, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or'otherwise effect changes in the status of employees,
or effectively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining with the meaning of Section 9 (b) of the Act.
2. Representation byi the Union of a majority in the appropriate unit
During the hearing counsel for the Board introduced in evidence a record of
prior representation proceedings between the parties hereto, wherein it was
disclosed that an election,by secret ballot was duly held on April 19, 1945,
wherein, out of approximately 144 eligible voters, 98 cast ballots. Of the ballots
so cast, 61 were for the Union, 4 were for the MTC, and 33 were for neither.'
On May 18, 1945, the Board,-as set forth above, certified the Union as the bargain-
ing representative of all the employees in the appropriate unit.
1 Matter of Na-Mac Products Corporation, 44 N L. R. B 1400
2 Matter of Na-Mac Products Corporation, 60 N L R B 1463
3 The appropriateness of the unit as found by the Board was also attacked by the Metal
Polishers Union, on behalf of the respondent 's platers , polishers and buffers. Although in
the prior representation proceedings , and in past collective bargaining agreements with the-
respondent , these employees had been represented by the MTC , the Metal Polishers Union
requested the Board to set aside the last election ; its motion was denied on May 3, 1945.
On August 24, 1945, it filed a new petition for certification of representatives, which the
Regional Director dismissed.
4 Unless otherwise indicated , all events referred to herein occurred in 1945.
i See footnote next preceding: I
NA-MAC PRODUCTS CORPORATION 305
While the respondent questioned the appropriateness of the unit in its petition
for decertification, it did not question the results of the above-described election.
The undersigned finds that on April 19, 1945, and at all times thereafter, the
Union was, and now is, the duly designated representative of the majority of
the employees in the aforesaid appropriate unit, and that, by virtue of Section
9 (a) of the Act, the Union at all times was, and now is, the representative of
all the respondent's employees in such unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment or other condi-
tions of employment.
3. The refusal to bargain
(a) Sequence of events
On May 17, 1945, the Union, by its Business Representative, Frank E Spector,
wrote the respondent as follows :
Attention : Mr. William Nassour
GENTLEMEN : Please be advised that we desire to proceed with negotiations
aimed towards arriving at an agreement between your Company and our
Union, relative to working conditions and ,wage rates.
Under separate cover we are mailing to you, for your convenience two (2)
copies of proposals for same
We suggest Wednesday, May 23, at 7: 30 p m. as the time for the begin-
ning of the negotiations, in your company's offices We trust that this date
will be satisfactory to you.
We also wish to advise you that the following employees compose the duly-
elected Shop Committee : H. J. Blodgett, Chief Steward ; Alice Bain, Kenneth
Purbeck, Harry Locks, Kendall Reinhold. The members of this committee
are fully authorized by our Union to take up with your Company all matters,
pertaining to the business or our Union.
Kindly acknowledge the receipt of this letter.
The respondent did not reply to the foregoing letter Shortly prior to May 2J
Spector telephoned William Nassour, the respondent's president, and requested:
a meeting with management. He was referred to respondent's attorney, J. Wesley
Cupp. Spector then got in touch with Cupp and a meeting was arranged for-
the evening of May 24 at Cupp's office.
Spector, accompanied by employees H J. Blodgett, Kendall Reinhold, Alice-
Bain, and Harry Locks, reached Cupp's office at about 6 o'clock p m
On entering theiroom where the union committee was seated, Cupp, while still
standing, stated to the committee, in substance, that it would be a waste of,time-
to meet (at that time) since lie had an important dinner engagement; that he-
had not had time to look over the proposed contract theretofore submitted by the-
Union; that the union committee should consider the then existing contract be-
tween the respondent and the MTC in the nature of a counterproposal ; that in-.
sofar as he knew the MTC contract was the only one that the respondent would.
"go for"; that his usual method in bargaining negotiations was "to throw the
entire matter" to a conciliator, as direct negotiations were a waste of time; that,
while lie was authorized to meet with and negotiate with the union committee,
he had no authority to agree upon any condition or provision in the proposed
contract; and that if he did agree tentatively on one or more clauses in the con-
tract, he would have to have final approval of the seven owners of the respondent-
company.
Cupp, at Spector's urging that he sit down and bargain, finally agreed to sit
down for 20 minutes and start going over the clauses of the proposed contract.-
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the 20-minute period some 5 clauses of the contract were discussed,
after which Cupp, pleading his dinner engagement, brought the meeting to a
close.'
On the following day, May 25, the respondent posted the following :
BULLETIN
Now that the CIO has been certified as the bargaining agent of the em-
ployees of this Company, it is necessary that the policy of the company be
again made known to you with reference to any request for a closed or union
shop. .
NOTE WELL-This Company will never sign a closed or Union Shop
provision. Your job is not and will not be dependent upon membership in
the CIO or any other organization.
NEVER FORGET THIS..
Signed • WILLIAM NAssoua,
J W. Cupp
Also on May 25, Spector telegraphed the U S Commissioner of Conciliation at
San Francisco, requesting that he designate a conciliator to meet with the parties.
Commissioner Harry C. Malcolm of the U S Conciliation Service in Los Angeles
was designated to act as such conciliator and Spector was notified of such fact.
On June 4, the union committee and Cupp met with Commissioner Malcolm.
At the outset of the meeting Cupp stated that lie would not negotiate with Iespect
to the, "Wilcox plant employees." 7 Considerable time was consumed in
discussing Cupp's contention in this regard Cupp finally agreed to and did
discuss some of the clauses of the proposed contract Cupp again pleaded an
important engagement and the June 4 meeting broke up without airy pi u',ress being
made.'
The next meeting between the patties was held on June 11 at Malcolm's. office.
Spector, Bain, Blodgett and employee Fuhrbeck, «ho appeaied for the first
time , represented the Union, while Cupp and Edward Nassour, personnel director
and a member of respondent firm, appeared for the respondent.°
Several clauses of the in oposed contract were gone over and some were tenta-
tively agreed upon - Cupp, however, advised those present that, notwithstand-
ing the presence of a member of the firm, any tentative agreement reached would
haN e to be approved by all members of the firm The record discloses that Cupp,
was asked at each meeting following the first between the parties whethei be
had secured the approval of any of the matters tentatively agreed upon To
each inquiry he replied that he had not had time to take such matters up with
° The above findings as to the May 24 meeting are based on the credited testimony of
Spector and Reinhold, whose testimony was in the main substantiated by that of Cupp.
7 Prior to the April 19 election, a number of the respondent's employees, whose names
were carried on respondent's pay roll, were employed at the "Wilcox plant" performing cer-
tain work on behalf of the respondent. Before the election , the Union objected to the
inclusion of these employees on the list of eligible voters, but the respondent insisted that
they wei e included in the appropriate unit. They were permitted to vote and the Union
challenged their ballots Since the challenges were insufficient to affect the results of the
election , the Board made no determination thereon. The employees in question were among
those described and included in the Board's certification of representatives.
8 The findings concerning the June 4 meeting are based on Spector ' s testimony Cupp's
veision as to what occurred at such meeting was less detailed and definite than that of
Spector's, but was in substantial accord therewith.
° This was the'first and only instance that an officer or executive of the respondent, other
than Cupp , met with the union committee during negotiations referred to herein.
NA-MAC PRODUCTS CORPORATION 307
respondent's officials and owiiers This meeting also ended when Cupp again
pleaded in important engagement." "
On or about June 1 the respondent discharged Edmund Miller (whose dis-
charge is discussed in Section III, B, below), Reinhold, Blodgett, and Locks.
The last 3 named wet e members of the union bargaining committee
On June 2, the Union filed charges with the Board against the respondent,
alleging that the 4 employees named above had been discharged because of their
membership in and activities on behalf of the Union.
Under (late of June 13 Cupp wrote Ernest Marsh, Conciliation Commissioner,
Department of Labor at San Francisco, and sent carbon copies of such letter
to Malcolm and the Board's Regional Office in Los Angeles The letter stated,
jitter (ilia. that the Union had filed the charges above referred to and read in
part
Undoubtedly there will be more layoffs and inasmuch as these charges
hang over the head of the company, the company has instructed me as its
attorney-in-fact and counsel to advise you that until these charges are dis-
posed of or withdrawn, that it must postpone further negotiations
A further meeting of the parties was held on June 13 at Malcolm's office Spec-
tor, Bain and Fuhrbeck appeared for the Union. Cupp was sole representative
of the respondent. Cupp read a copy of his letter to Marsh, above referred to,
and stated that the respondent would not negotiate further until the charges
were disposed of or withdrawn Malcolm and Spector endeavored to have him
continue with the negotiations but Cupp refused and thus.the meeting ended
On June 14 the Union submitted to Malcolm a list of the issues in dispute be-
tween the Union and the respondent for certification to the War Labor Board,
herein Called W1,I1, and requested that Malcolm speedily, certify the same to
the WLB.
,On August , at the suggestion of Malcolm, a further meeting between the
parties was held Malcolm was assisted by Commissioner Wenig of the U. S.
Department of Labor. Malcolm stated that the purpose of the meeting was to
get the parties to agree on as many of the issues in dispute as was possible, in
ordei to reduce the number of the issues to be heard before the WLB. Other
than the discussion of one or two clauses of the proposed contract, no progress
%vas made at this meeting, as Cupp reiterated the fact that lie had to have all
of his tentative conunitments approved by the respondent-firm"
On August 7 the parties met for the last time. The meeting was held at
Malcohm's-olhce with the same groups present as attended the August 2 meeting.
At the outset of the meeting Cupp stated that in view of the discontinuance of
These findings are based on the credited and uncontradicted testimony of Spector
On August 13, some 80 days after the first meeting of the union committee with Cupp
on May 24, Cupp wrote Malcolm with reference to the submission of the labor dispute to a
panel of the WLB In this letter Cupp denied certain statements made by Spector to the
effect that the respondent and the Union had agreed on certain provisions, as set up by
Spector in a mimeographed enclosure Cupp's letter stated in part :
I thought I made it specifically clear that while I was a representative of the com-
pany, all the results would have to be submitted to the company for its official approval
n.hich has not been done, but I hope to take care of same within a few days when I
and the company can consult with Mr. Pottoroff, the Shop Superintendent, who is
home ill. [Italics added ]
The foregoing statement not only indicates that Cupp was without authority to bind the
respondent, but also indicates a lack of good faith on the part of the respondent in taking
no action on the matters discussed at the meetings.
712344-47-vol 70-21
n
DECISIONS OF NATIONAL LABOR RELATIONS BOARD308
respondent's machine shop there was no longer need for negotiating with the
Union. In this connection Cupp testified in part:
I addressed myself to Mr. Malcolm, "If you feel that the Board (WLB)
will again entertain a request for certification, there is only one way for
the Conciliation Office to bring that to the Board and that is to request it. I
am at this time stopping further negotiations." I think this was the last.
meeting [Italics added.] ,
0
Cupp further testified in part:
I said to Mr. Spector, I said, "In the event the War Labor Board goes out
of existence or doesn't care to entertain it, because of changes in war condi-
tions and the limitations they have recently announced, I say to you Mr.
Spector, one way to bring it to a head is to go before the National Labor
Relations Board on the basis (that) I.am 9efustng to further negotiate a
contract, when you no longer represent the principals. [Italics added.]
Cupp further testified that when the "A. F. L." came and asked for a 10-cent
an hour raise some of the "top men" were given a raise of 5 cents an hour. Cupp
added: "We didn't give a straight, right down the line, 10 cents an hour, because
it would be impossible." The employees involved in the raise above mentioned
were polishers, platers, and buffers and were included in the appropriate' unit
as certified by the Board on May 18, 1945
It is clear from the record that the raise above referred to was granted by the
respondent by unilateral action and without consulting the Union's bargaining
committee, and it is so found
(b) Respondent's contention and testimony to the refusal to bargain
The record discloses, and the respondent does not deny, that from June 13,
1945, and thereafter it refused to negotiate with the Union The respondent
contends, however, in substance, (1) that during the early meetings with the
Union Committee, it bargained in good faith and made reasonable efforts to
conclude an agreement; and (2) that (luring later conferences, because of pend-
ing charges filed by the Union, and because of the Union's alleged loss of inajority,
it was justified in refusing to continue negotiations.
As to the first contention. The record discloses that at the first bargaining
meeting held on May 24, Cupp announced that he had not had time to look over
the proposed contract submitted by the Union ; that the respondent,§ counter-
proposal consisted of, its previous contract with the MTC, because "after the
Company went through sweat and blood to get this contract it was incongruous
to sit down with any other-agency selected by the employees, and start over
the whole thing" ; that so far as he knew the MTC contract was the only one the
Company would "go for"; and that the Union would never in any event achieve
a "closed shop" contract. Cupp further stated that while he was authorized to
meet with and negotiate with the Union, he had no authority to agree upon any
condition or provision of the proposed contract, as all or any tentative agree-
ments were subject to final approval by the seven owners of the respondent-
company ; and that his usual way in bargaining negotiations was "to throw the
entire matter" to a conciliator.
The record further discloses that at the next bargaining meeting held at Con-
ciliator Malcolm's office, Cupp, as found above, consumed a major portion of the
time in discussing a fictitious issue in connection with the "Wilcox Plant" em-
ployees, after which he finally agreed to and did discuss some of the clauses in
the proposed contract and brought this meeting to a close on the plea of an
important engagement.
NA-MAC PRODUCTS CORPORATION 309
At the next meeting of the parties held at Malcolm's office on June 11, Cupp
was accompanied for the first and only time by a member of the respondent-firm.
After several clauses of the proposed contract were discussed and tentatively
agreed to , Cupp informed all present that notwithstanding the presence of a
member of the respondent-firm, any tentative agreement reached was subject
to approval by all members" of the firm. The record discloses that on August 13,
1945, Cupp informed Malcolm that he had not yet submitted the results obtained
from negotiations to the respondent.
It is clear from the above and the record that Cupp was at no time authorized
to act on behalf of the respondent, even with respect to minor matters, thus indi-
cating lack of good faith on respondent's part,12 and that his conduct at the
meetings described above discloses a fixed determination on the part of the
respondent not to bargain in good faith.
This contention is without merit
As to the second contention The respondent sought to justify its refusal to
bargain on and after June 13, (a) because the Union filed charges, and (b)
because of the Union's alleged loss of majority. The record discloses as to (a)
that the Union filed charges on June 2 alleging the discriminatory discharge of
Miller and 3 others ; and that at a meeting held at Malcolm's office Cupp stated
that the respondent would not negotiate further until the charges were disposed
of or withdrawn. The respondent never thereafter receded from, this position.
This defense is not legally tenable
The Board in Matter of Sheba Ann Fi ocks, Inc ,13 held that an employer's con-
tention that it is not required to bargain with a labor organization certified by
the Board as the authorized representative of the employees until the Board
rendersa decision on pending charges of unfair labor practices, and until the
decision and certification of representatives are reviewed by the Courts, is with-
out merit, for the issuance or withholding of a decision on a complaint cannot
relieve the employer of its obligation to observe the provisions of the Act. In
Matter of Lebanon Steel Foundry" the Board held that termination of confer-
ences by the employer upon the Union' s filing charge constitutes a refusal to
bargain since the pendency of a proceeding before the Board does not in any way
suspend the operation of the Act or relieve an employer of any duties thereundei.
Contention ( 2) (a) is without merit.
The respondent's contention to the effect that it was relieved of its duty to
bargain with the Union because of the latter's alleged loss of majority is also
untenable. The record discloses that the Union was dull certified as bargaining
agent on May 18, 1945; that within 2 months thereafter the respondent con-
tended that due to lay-offs occurring as a result of reconversion, the Union had
lost its majority ; that at a meeting of the parties held on August 2, at Malcolm's
suggestion , in an attempt to have them agree as to just what issues were in
dispute between them, Cupp refused to so agree and iterated the fact that all of
his tentative agreements must be approved by the respondent; that at the last
meeting of the parties held at Malcolm's office, Cupp admittedly informed Malcolm
that he was at that time "stopping further negotiation" ; and that he then told
Spector "I am refusing to further negotiate a contract, when you no longer
represent the principals."
The Board and the COurts have consistently held that once a bargaining agent
has been certified, pursuant to an election, as the representative of a majority
12 See Matter of Service Wood Heel Company, Inc, 31 N L R B 1179
135N.L R B 12,16.
14 33 N L It B 233 , see also Matter of Elias-Klatscher & Co , 40 N L R B 1037, enforced
142 F (2d) 356 (C. C. A. 9).
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees in an appropriate unit, its majority status is presumed to con-
tinue for a reasonable length of time.15 This contention is without merit.
The respondent's determination to disregard its obligation to'bargain with the
Union is further disclosed by the posting of the anti-CIO bulletin on May 25, and
finally by granting a unilateral wage increase to the employees of the metal
polishing and plating department,10 both of which acts tended to discredit the
Union in the eyes of the remaining employees
CONCLUDING FINDINGS
From the foregoing and the record, the undersigned finds that the respondent,
on May 24, 1945, and at all times thereafter, has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appropriate
unit, and thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds that by posting the bulletin dated May 25, 1945,
in which it advised the employees that it would never sign a "closed or union
shop" " provision and that their jobs would not "be dependent on membership
in the CIO or any other organization," without at the same time advising the
employees that they might retain their jobs in the event they joined the CIO
or, any other organization,18 the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. The discriminatory discharge of Edmund Miller
(a) Events leading up to the discharge
Miller was hired on OctobQr 27, 1942, and began his employment on the follow-
iug clay. He first worked in the engine lathe department as a learner with a
starting rate of 75 cents per hour. During his employment lie worked in the
grinding room and was assigned to experimental work and to the rework depart-
ment. He also did tool and cutter grinding During his employment he received
11 raises of 5 cents per hour and at the time of his discharge on June 1, 1945, was
receiving $1.30 per hour. On April 3, 1944, he was classified as a Journeyman
Machinist "A."
Prior to the representation election held on April 19, 1945, Miller was active on
behalf of the Union, although not a member.1° He acted as a contact for the CIO
and personally gave out application for membership cards.
Miller was selected by the Union as its observer at the April 19, 1945, election.
On the day before the election, Lyle D. Pottoroff, respondent's superintendent,
called Miller to his office and informed him that the "management" had instructed
Pottoroft to advise Miller that if the latter acted as the union observer at the
'IN. L R. B. v. Century Oxford Mfg. Corp, 140 F. (2d) 541 (C. C. A. 2), cert. denied
323 U. S. 714; N. L. R. B. v. Botany Worsted Mills, 133 F. (2d) 876 (C. C. A 3), cert
denied 319 U. S. 715; N. L. R. B. v. Appalachian Electric Power Co, 140 F. (2d) 217
(C C. A. 4) , Motor Valve Mfg. Co. v. N. L. R. B., 149 F. (2d) 247 (C C. A. 6).
10 See May Department Stores Co., etc. v. N L. R. B., 326 U. S. 376
"Matter of Julius Cohn, d/b/a Comas Manufacturing Co, 59 N. L R. B. 208, and
cases cited.
10 American Furnace Company, 65 N: I. R B 247.
19 Miller never joined the CIO He was a member of the Seventh Day Adventist Sect
which, Miller stated, prevented him from joining any other organization It is undisputed
that the respondent's officers and supervisors were under the impression and believed that
Miller was a member of the Union.
NA-MAC PRODUCTS CORPORATION 311
election his check would be ready for him when he came back. Miller attended
the election and returned to work but was not tendered his check.20
On or about May 29 Miller, was called to Pottoroff's office and informed that
due to many cancellations of contracts some lay-offs would have to be made ; that
Miller would be taken out of his rework department and one, Emil Hayden, was
going to take care of the rework. Pottoroff informed Miller that he could go to
some of the other departments but would have to go at a lower rate. The depart-
ments were not specified at the time. Miller informed Pottoroff that he would
like to think the matter over but also informed him that he would be willing to go
to the lathe department at $1.25 rate. Pottoroff promised to talk to Robert
DeKay, plant manager, with reference to the pay and classification at which
Miller could be retained and promised to advise Miller later. Miller then went
to Sol Senter, foreman of the lathe department. Senter told him he had an
opening at a $1.25 rate. On the afternoon of May 31, Miller went to Pottoroff's
office and asked if the latter had taken his matter up with Manager DeKay, and
was informed that Pottoroff had not been able to see the manager, but would do
so the next day, June 1.
On June 1, the following day, at about 4: 30 in the afternoon, a guard asked
Miller if he was "checking out" his tools. When Miller replied that he was
not quitting, the guard stated, "They gold you on the list." Miller then went
to Pottoroff, who said that he did not know what he was going to do and that
he would check up and see what could be done. Shortly thereafter Miller was
called to Manager DeKay's office and, in the presence of Pottoroff, DeKay stated
that the respondent was going to have to let a number of employees go, where-
upon Miller asked concerning his plant seniority," to which DeKay replied
that he could lay off "plant wide" or by departments, as he "saw fit." Miller
was given his check just before quitting time on June 1.
(b) Contentions and testimony of respondent as to the discharge
Pottoroff testified in substance that Miller was the last regular remaining
employee in the rework department, and that when he told Miller that the
department would be closed down Miller requested to be returned to the lathe
department where he had formerly worked. Pottoroff stated that he could
not go back at the rate of $1.30 he was then getting and Miller offered to re-
turn to the lathe department at the $1.25 rate which was the top rate for
20 Pottoroff testified that he received word from the "front office" that Miller was going
over to the "school" (at the time of the April 18 electlon4 , and was asked if he "knew
that Miller was going over to the school to participate in the election." Pottoroff testified :
I told them no, he had said nothing whatsoever to me. I was told to inform him
that if he left the fob, . . . that it would be considered that he left the job when it
was unneecessary and that he could consider his employment at an end as far as
Na-Mac was concerned.
While Pottoroff's version of this conversation is in substantial accord with that of Miller's,
it varies in that Pottoroff does not admit that he referred to the fact that Miller was to act
as the Union's observer at the election . The undersigned credits Miller's version as set
out above.
21
The contract between the respondent and MTC, amended on June 6, 1944, contained
a clause as follows :
It is agreed that in the event the business of the employer necessitates the laying
off of men or women , such employees shall be laid off on the basis of seniority in depart-
ments as well as on a plant wide basis, the last hired to be the first laid off , merit,
ability and other conditions being equal ; and likewise on re-employment of employees,
such re-employment shall be made on the basis of seniority as herein defined and due
regard being given to merit and ability.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engine lathe work 22 Pottoroff admitted there was work in the "bench" lathe
department, which, together with the engine lathe department, was under the
jurisdiction of Foreman Senter, but testified that the rate for bench lathe work
was from 95 cents to $1.10 per hour. According to Pottoroff, he then consulted
with J. Wesley Cupp, respondent's attorney, and was advised that Miller could
not be employed at bench lathe work at the $1.25 rate inasmuch as $1.10 was
"tops" for bench work " Pottoroff admitted that he did not directly offer Miller
the bench lathe job at the $1.10 rate, indeed, that he never offered Miller any
other definite opportunity to work at the plant.
Manager DeKay testified that he informed Miller that he was being laid off
because the rework department was being disbanded; that jobs in other depart-
ments in the plant were not suited "for the ability" of Miller ; and that he felt
that Miller "should take advantage of the schooling and everything he had had
to get something better." Miller replied that he should be able to go into the
bench lathe department at $1.25 an hour.
While the respondent did not during the hearing contend that it had offered
,tiller reinstatement, Cupp's July 3 letter, referred to hereinabove, stated in part:
His (Miller's) previous rate was $1.35 ($1.30), therefore the Personnel
Director felt it would be an insult to offer him the 950 rate. If, however,
he now desires to work as a benA lathe operator at the 950 level, he is by
this letter offered reemployment in the classification known as bench lathe
operator . . . [Italics added.]
In this connection Manager DeKay testified that he told Miller that:
95 cents was the learner rate and $1.10 would be the top he could possibly
get.
DeKay further testified :
(By Mr. CurP) :
Q. Did you consider Mr.-Ed Miller was qualified for the top rate in the
bench department?
A. I believe, clue to the experience -Miller had had, so far as we had
taught him and what he had shown what he could do, so far as the rework
department was concerned, I think he could have handled the bench lathe
department at the top rate of $110; I think he could handle that
Q. Do you feel, however, he could have qualified as top rate of bench lathe
department?
A. Yes, I do. -
Miller started in the lathe department and had plant seniority in such depart-
ment. Since it appears that there is no question but what he was.entitled to the
top rate $1.10 in the event he was put into the bench lathe department, Cupp's
offer of a position in such department at the 95-cent rate, was not a good faith
offer. The record discloses that Miller, who was employed on October 28, 1942,
22 Miller testified, without contradiction , and the undersigned finds, that some 4 to 6
weeks before Miller's discharge , employee Ray Stillman , who had been receiving $1.30
an hour rate in the rework department , was transferred to the lathe department and
continued to receive his then rate of $1.30.
22 The record indicates , and the undersigned finds, that Pottoroff desired to retain Miller
and place him in the lathe department at the $1.25 rate but was overruled by Personnel
Director Nassour and Attorney Cupp. The latter so stated in a letter to the Board's
Regional Officer under date of July 3, 1945, in which Cupp also stated that he had advised
Pottoroff that Miller could not be employed in the bench lathe department at a rate higher
than $.95 under WLB regulations.
NA-MAC PRODUCTS CORPORATION 313
had seniority over Alice Bain, employed January 25, 1944, over Samuel Katz,
employed February 22, 1943, and over Adolphine Nolte, employed on January
24, 1944, each of whom were retained after Miller was discharged and until
August 17 in the case of Katz and Nolte and August 18 in the case of Bain. °
(c) Conclusions as to the discharge
The record affirmatively discloses that Miller was a satisfactory and capable
employee ; that prior to and during the time a number of lay-offs were made neces-
sary, the respondent prepared and followed, except in Miller's case, a plant-wide
seniority list. The record further discloses that Henry Locks, Kendall Reinhold,
and H. J. Blodgett were also laid off on June 1 on the basis of plant-wide seniority,
but there is no evidence that the respondent felt it necessary to consult with its
attorney concerning their lay-off 24 It affirmatively appears that respondent did
consult with its attorney at the time of Miller's lay-off, and he advised the
respondent that it could not retain him at the $1.25 level if he were assigned to
work in the "bench" lathe department, thus indicating that there was no question
but that Miller had seniority and was entitled to a bona fide offer of a position
in another department at that time. The respondent's assertion that in the case
of Miller it did not follow its general seniority policy because in such matters it
also considered "merit, ability and other conditions," is not convincing. It is
admitted that at the time of the discharge, and as late as July 3, other work was
available on the bench lathes. Pottoroff testified that there had been no com-
plaints as to Miller's work. McKay testified that Miller was a "good man" who
had "ability," and that if he had been retained on what work was available the
respondent would have been the gainer, as in McKay's opinion Miller was worth
more than the 95 cents or $1.10 per hour which the bench lathe job paid
The record reveals a convincing explanation of the exception that was made
in discharging Miller in violation of the respondent's established policy of
seniority preference. By threatening Miller with discharge if he acted as the
Union's observer at the April 19 election, by posting the May 25 "Bulletin" set
out in Section III, A, above, and by insisting during the attempted negotiation
that the Union could not bargain for certain of the respondent's employees who
were allegedly members of the MTC, the respondent indicated hostility toward
the Union and towards Miller's activity in its support. For these reasons, the
undersigned finds that the respondent selected Miller for discharge, not because
of inefficiency on his part, but because of its antagonism towards the Union and
because of resentment of his activites on its behalf.
Upon the basis of the entire record, the undersigned is convinced and finds
that the respondent discharged Miller on June 1, 1945, and thereafter refused to
reinstate him to his former or equivalent position, because of his activities on
behalf of the Union, and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The record discloses and the undersigned finds that prior to August 14, 1945,
the respondent manufactured aircraft parts and pneumatic riveting hammers
for the Army Air Force. -Miller qualified as a Journeyman machinist working
on such parts and hammers. Following August 14 the respondent returned to
its peacetime production of egg beaters, drip cups, and cosmetic containers,
none of which required the services of a Journeyman machinist and at none
of which does it appear, nor was it contended, that Miller was proficient. For
the foregoing reasons, Miller's reinstatement will not be recommended.
24 Locks , Reinhold , and Blodgett were members of the Union 's bargaining committee. The
respondent was informed of this fact by letter of the Union under date of May 17. When
the Union complained of their discharge, the respondent Justified its action on the basis
of plant-wide seniority.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
IV THE EFFECT OF THE UNF.\IR LABOR PRACTICES UPON COIIMEI1Ci_
The activities of the respondent set forth in Section III, above, occurring
4n connection with the operations of the respondent's business 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 burden-
ing and obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent has refused to bargain collectively with the
Union as the exclusive representative of its employees in an appropriate unit,
it will be recommended that the respondent, upon request, bargain collectively
with the Union.
It has been found that the respondent discriminated in regard to the hire
and tenure of employment of Edmund Miller by discharging him and refusing
to reinstate him because of his activities on behalf of the Union. It has been
further found that since on or about August 14, 1945, the respondent has dis-
continued the operations for which Miller is qualified as a Journeyman Machinist
and there appears to be little if any likelihood that the respondent will resume
such operations in the predictable future. Accordingly Miller's reinstatement
will not be recommended. However, in order to effectuate the policies of the
Act, the undersigned will recommend that the respondent make Miller whole
for any loss of pay he may have suffered by reason of the respondent's discrimi-
nation against him by payment to him of a sum of money equal to the amount
he would normally have earned as wages from June 1, 1945, to August 14, 1945,
the approximate day on which the respondent discontinued the operation of its
machine shop, less his net earnings 23 during said period.
In view of the unfair labor practices found to have been committed by the re-
spondent, constituting an independent violation of Section 8 (1) as well as viola-
tions of Section 8 (3) and (5) of the Act, the undersigned finds that there is
danger of the commission of other unfair labor practices by the respondent in
the future. -It has been found that on the day before the Board-ordered election
of April 19, the respondent threatened to discharge Miller if he acted as observer
for the Union. On June 1, notwithstanding the seniority rights to which Miller
was entitled under the respondent's customary practice, it discharged him be-
cause of his union activities Finally, during a number of conferences with the
Union's negotiating committee over a period of many weeks, the respondent
continued to manifest a clear hostility towards the Union by not bargaining in
good faith and by repeatedly casting doubt upon the Union's authority to repre-
sent groups of employees who had been included in the appropriate unit by the
Board's order From the respondent's willingness to resort to the extreme
measure of discharge and from its planned. anti-union conduct in refusing to
bargain as under the Act it was obligated to do, it is clear that the respondent is
25 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Comapny, 8 N. L. R. B. 440 Monies received for work performed upon
Federal , State, county , municipal, or other work-relief projects shall be considered as
earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
NA-MAC PRODUCTS CORPORATION 315
determined to use any form or degree of restraint and coercion to effectuate its
opposition to any union activities on the part of its employees generally. This
attitude of opposition, and the continuing threat which it implies, makes necessary
a cease and desist order as broad as the threat. An order limited to the particu-
lar illegal acts found to have occurred in the past would place a premium on
the respondent's ingenuity in devising different methods of attaining its demon-
strated purpose of defeating the employees in the exercise of the rights to self-
organization for collective bargaining purposes 26
It will therefore be recommended that the respondent cease and desist from in
any manner interfering with, restraining, and coercing its employees in their
right to self-organization for collective bargaining purposes as guaranteed 'in
Section 7 of the Act.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1 United Electrical, Radio & Machine Workers of America, Local 1421, affili-
ated with the Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2 All production and maintenance employees of the respondent, excluding
office clerks, executives, foremen, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, at all times material herein
constituted and now constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. United Electrical, Radio & Machine Workers of America, Local 1421, affili-
ated with the Congress of Industrial Organizations, was at all times material
herein and now is the exclusive representative of all the employees in such 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 Union as the exclusive repre-
sentative of the employees in the above-described unit, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Ed-
mund Miller, thereby discouraging membership in a labor organization, respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the 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 (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.
26 See May Department Stores Company, etc. v. N. L . R. B., 326 U. S . 376; Matter of
Washington National Insurance Co., 64 N. L. R B 929; Matter of C. D. Beck d Company,
63 N L. R. B. 1426 ; Matter o f Caroline Mills, Inc., 64 N. L. R. B. 200.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Na-Mac Products Corporation, Los Angeles, California,
its officers, agents, successors, and assigns shall
1. Cease and resist from :
(a) Refusing to bargain collectively with United Electrical, Radio & Machine
'Workers of America, Local 1421, CIO, as the exclusive representative of all of
its production and maintenance employees engaged in its plant or plants located
in Los Angeles, California, excluding office clerks, executives, foremen, and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
such action, in respect to rates of pay, wages, hours of employment, and other
conditions of employment ;
(b) Discouraging membership in United Electrical, Radio & Machine Workers
of America, Local 1421, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discharging and refusing
to reinstate any of its employees or in any other manner discriminating in re-
gard to their hire and tenure of employment, and any terms and conditions of
employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organia-
tions, to join or assist United Electrical, Radio & Machine Workers of America,
Local 1421, affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with United Electrical, Radio & Machine
Workers of America, Local 1421, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all the respondent's production
and maintenance employees, exclusive of office clerks, executives, foremen, and
all supervisory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively recommend
such action, with respect to rates of pay, hours of employment, or other conditions
of employment, and if an understanding is reached, embody such understanding
in a signed agreement ;
(b) Make whole Edmund Miller for any loss of pay he may have suffered by
reason of the respondent's discrimination against him in the manner as provided
in the section entitled "The remedy" ;
(c) Post at its plants at Los Angeles, California, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, after being signed by the re-
spondent's representative, shall be posted by the respondent immediately upon
the receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Twenty-first Region, in writing,
within ten (10) days from the date of the receipt of this Intermediate Report,
what steps the respondent has taken to comply therewith.
NA-MAC PRODUCTS CORPORATION 317
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 27,
1945, any party or counsel for the Board may, within fifteen ( 15) days from
the date of the entry of the order transferring the case to the Board , pursuant
to Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington 25, D. C., an original and four copies of 'a
statement in writing , setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director . As further provided in said Section 33 , should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
PETER F. WARD,
Trial Examiner.
Dated February 18, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist United Electrical , Radio & Machine Workers of America,
affiliated with the Congress of Industrial Organizations , or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will make whole Edmund Miller for any loss of pay suffered as a result
of the discrimination against him
We will bargain collectively upon request with the above -named union as
the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is :
All production and maintenance employees at our Los Angeles, California,
plants, excluding office clerks , executives, foremen, and all supervisory
employees with authority to hire, promote , discharge , discipline, or
otherwise effectuate the change of status of employees or effectively
recommend- such action.
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire or tenure of employment or any term or condition of employment against,any
employee because of membership in or activity on behalf of any such labor
organization. -
NA-MAC PRODUCTS CORPORATION, INC.,
Employer.
By ---------------------------------------
(Representative ) (Title)
Dated--------------------
NoTn. Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces. -
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.,