Southern Block and Pipe Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1950

90 N.L.R.B. 590 (N.L.R.B. 1950)

In the Matter of SOUTHERN BLOCK AND PIPE CORPORATION and INTER-
NATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 147-C,
A. F. OF L.
Case No. 5-CA-151.-Decided June 26,1950
DECISION AND ORDER
On February 9, 1950, Trial Examiner Sidney L. Feiler issued his.
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent.
had not engaged in another unfair labor practice alleged in the com-
plaint and recommended dismissal of that allegation. Thereafter,
the Respondent filed exceptions to the Intermediate Report, and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem
ber panel [Members Houston, Reynolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modifications and
additions set forth below.
1. We, like the Trial Examiner, find, notwithstanding the contrary
contention of the Respondent, that the Respondent is engaged in com-
merce within the meaning of the Act.'
2. We find that on December 11, 1947, the Union was, and at all
times since has continued to be, the exclusive representative within the
meaning of Section 9 (a) of the Act, of employees in the following unit
for the purpose of collective bargaining within the meaning of See-
' Ready Mimed Concrete Company , 90 NLRB No . 49 ; Consolidated Edison Company v.
N. L. R. B., 305 U. S. 197, 222. See also the cases cited in footnote 2 of the Intermediate
Report.
90 NLRB No. 95.
590
SOUTHERN BLOCK AND PIPE CORPORATION 591
tion 9 (b) of the Act: All production and maintenance employees of
the Respondent's Norfolk, Virginia, plant, including janitors, night
watchmen, and truck drivers, but excluding office clerical employees,.
foremen, and other supervisors as defined in the Act.
3. We find, as did the Trial Examiner, that the Respondent has vio-
lated Section 8 (a) (5) and 8 (a) (1) of the Act. We base our 8 (a)
(5) finding upon the Respondent's discontinuance of efforts to com-
plete a contract on and after December 1, 1948. On this date, accord-
ing to the testimony of both the president and secretary-treasurer
of the Respondent, the Respondent decided to hold in abeyance the
union-approved contract and not sign it pending the outcome of de-
certification proceedings.2 This cessation of bargaining by the Re-
spondent occurred within 1 year from the date of the certification of
the Union. As the Trial Examiner states, an employer is obligated.
to bargain with a certified union during the certification year, regard-
less of the imminence or actual pendency of a decertification petition.'
Moreover, the Respondent in the instant case has in fact contributed to
producing the very situation which it urges as reason for its refusal to.
bargain by assisting in the preparation and filing of the decertification
petition. We agree with the Trial Examiner's finding that by virtue
of such assistance, the Respondent has, in violation of Section 8 (a)
(I), interfered with, restrained, and coerced its employees in the ex-
ercise of their rights as guaranteed in Section 7 of the Act.
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, Southern Block and Pipe
Corporation, Norfolk, Virginia, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of
Operating Engineers, Local 147-C, A. F. of L., as the exclusive repre-
sentative of all production and maintenance employees of the Re-
spondent employed at its Norfolk, Virginia, plant, including janitors,
night watchmen, and truck drivers, but excluding all office clerical
2 We do not accept the Trial Examiner's finding that the Respondent refused to bargain
with the Union on or after . October 8 , 1948 . The terms of the contract had been previously
agreed upon by the parties on October 1, 1948. But it was not until November 8, 1948,
that the contract containing these provisions was submitted by the Union to the Respondent
for signature. During the remainder of November, either the Respondent 's top officials or
its attorneys were out of town. In our opinion there is no clear evidence of the Respondent's
refusal to bargain until December 1, 1948 . We base our finding of a refusal to bargain
from that date upon the testimony of the Respondent's officials noted above.
3 The Belden Brick Co., 83 NLRB 465.
,592 DECISIONS OF NATIONAL LABOR RELA'T'IONS BOARD
employees, foremen, and other supervisors as defined in the Act;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
forum labor organizations, to join or assist International Union of
Operating Engineers, Local 147-C, A. F. of L., to bargain collectively
through representatives of their own choosing and to engage in con-
certed 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 Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union
of Operating Engineers, Local No. 147-C, A. F. of L., as the exclusive
representative of all employees in the aforesaid appropriate unit
with respect to wages, rates of pay, hours of employment, or other
conditions of employment, and if an understanding is reached, em-
body such understanding in a signed agreement;
(b) Post at its plant in Norfolk, Virginia, copies of the notice at-
tached to the Intermediate Report and marked Appendix A.4 Copies
of said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and.main-
tained by it for sixty (60) days thereafter in conspicuous places, in-
eluding all places where notices 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 Fifth Region, in writing,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
AND IT IS FURTHER- ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent interrogated its
employees with respect to their union affiliation and sympathies.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. H. Raymond Cluster, for the General Counsel.
Messrs. Charles L. Kaufman and J. Dcwis Reed, Jr., of Norfolk, Va., for the
Respondent.
Messrs. Paul A. Askew and Gilbert C. Roberts, of Norfolk, Va., for the Union.
" This notice , however , shall be , and it hereby is, amended by striking from the first para-
graph thereof the words "The- Recommendations of a Trial Examiner " and substituting 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."
.SOUTHERN BLOCK AND PIPE CORPORATION
STATEMENT OF THE CASE
.593
Upon an amended charge filed by International Union of Operating Engineers,
Local No, 147-C, A. F. of L., hereinafter referred to as the Union, the General
Counsel of the National Labor Relations Board' by the Regional Director for
the Fifth Region (Baltimore, Maryland), issued a complaint dated July 27, 1949,
against Southern Block and Pipe Corporation, hereinafter referred to as the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act.
With respect to unfair labor practices the complaint alleges in substance that
the Respondent:
(1) On or about November 8, 1948, and at all times thereafter refused and
continues to refuse to bargain collectively with the Union as the duly designated
exclusive bargaining representative of all its employees in an appropriate bar-
gaining unit, and
(2) That the Respondent, by its officers, agents, and supervisors, from on or
about November 1, 1948,. to the date of the complaint has interrogated its em-
ployees with respect to their union affiliation and sympathies and has urged,
assisted , and coerced its employees to sign a petition authorizing the institution
of proceedings to decertify the Union.
In its answer dated August 5, 1.949, the Respondent denies the commission of
any unfair labor practices and further alleges that while it was bargaining in
good faith with the Union, a decertification petition was filed and that thereupon,
on advice of counsel, it held in abeyance further discussion and execution of the
proposed contract pending an election to determine the wishes of its employees.
Pursuant to notice a hearing was held at Norfolk, Virginia, on August 16 and 17,
1949, before the undersigned, Sidney L. Feiler, the Trial Examiner designated
by the Chief 'T'rial Examiner. The General Counsel and the Respondent were
represented by counsel, the Union, by representatives. 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 conclusion of the taking of testi-
mony, the General Counsel moved to conform the pleadings to the proof as to
formal matters. This motion was granted without objection as to all pleadings.
.Oral argument was then presented on behalf of the General Counsel and the
Respondent. Opportunity was afforded. the parties to file.briefs or proposed
findings of fact, conclusions of law, and recommendations, but none were received.
On the entire record and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation duly organized under and existing by virtue
of the laws of Virginia, having its principal office and plaice of business in Norfolk,
Virginia. At all times here relevant it was and is engaged in the manufacture
' The General Counsel and the attorney representing hint at the hearing are referred to
as the General Counsel . The National Labor Relations Board is referred to as the Board.
903847-51-vol. 90-3:)
594 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
and sale of concrete pipe, concrete masonry blocks , concrete lintels, masonry
lintels, and other products. During the fiscal year ending January 31, 1949, it
purchased raw material consisting principally of sand, solite, gravel, cement,
and steel valued at approximately $200,000, of which approximately 13 percent,
consisting mainly of steel in the form of wire mesh, was purchased and shipped to
the Respondent from points outside the Commonwealth of Virginia. During the
same year the Respondent manufactured, sold, and shipped finished products
valued in excess of $500,000, of which approximately 4 percent was shipped to
points outside the Commonwealth of Virginia.
The Respondent's customers are mainly building and highway contractors
although between 10 and 15 percent of its products is sold to dealers for resale
to contractors. Less than 1 percent of its sales is to railroads. Some sales are
also made to the Fifth U. S. Naval District. The concrete masonry block is sold
principally to masonry contractors who lay walls of brick or stone. The con-
crete pipe is sold to municipalities and contractors who do water; sewer, drainage,
and highway work. The total for shipments outside the Commonwealth of Vir-
ginia includes shipments of material sold to the State of North Carolina. It was
stipulated that the Respondent's purchases and sales have continued at approxi-
mately the same rate as above set forth since January 31, 1949.
The undersigned finds, contrary to the contention of the Respondent, that at
all times here relevant it was and is engaged in commerce within the meaning
of the Act.2
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 147-C, affiliated with
the American Federation of Labor, is a labor organization admitting to tnem-
bership employees of the Respondent. -
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
The Union began its organizing campaign at the Respondent' s plant in the
latter part of August 1947. A. consent election agreement was signed on No-
vember 24, 1947. After an election held on December 11, 1947, which the Union
won, a consent determination of representatives was issued by the Regional
Director certifying that the Union was the exclusive representative of all the
employees in the agreed appropriate unit.
On March 17, 1948, the Union filed a charge alleging that the Respondent
had refused to bargain with it in good faith. This charge was investigated and
was withdrawn on July 26, 1948. The parties did not have any bargaining
negotiations thereafter until August 30 when the Union requested renewed'bar-
gaining negotiations. At a conference held on October 1 the parties entered
into a detailed discussion of the terms of the proposed contract which had been
under consideration in the early part of the year. The course of the discussion
is not relevant to the issues raised by the complaint. It is sufficient to note that
at the end of the meeting the parties were in apparent agreement on out-
standing issues. On October 11, 1948, the Respondent sent a letter to the Union
outlining revisions to the proposed contract which had been discussed at the prior
meeting. The letter concluded with the statement "Should the above be agree-
2.9.7aron Brick d Block Co., 79 NLRB 1253; Edgar P. Fosse, Inc.,86 NLRB 394; John A..
Denic's Sons' Co., 86 NLRB 682.
SOUTHERN BLOCK AND PIPE CORPORATION 595
able, we suggest that you incorporate same in the referenced agreement , execute
same and forward to us for signature."
Paul Askew, a representative of the Union, who was in charge of contract
negotiations for it, redrafted the agreement and had two meetings with the union
membership after which the Union approved the contract with the proposed
changes. It was then signed by Askew and other union officials and was sent
to the Respondent on November 8.
The only disagreement that exists among the witnesses is whether there was
any understanding at the conclusion of the October 1 meeting that the proposed
contract had to be approved by the Respondent's stockholders. Askew testified
that the only understanding as to the signing of the contract was contained
in the October 11 letter which he received from the Respondent which did not
mention any such reservation and that he understood that if the Union agreed
to the proposed contract with the changes proposed by the Respondent, there
would be no further obstacle in the path of the contract taking effect. On the
other hand, Henry C. Hofheimer, president of the Respondent, testified that at
the conclusion of the October 1 conference, he expressly told Askew that if the
Union agreed to the proposed changes the approval of the respondent's stock-
holders would still have to be obtained. In this connection,. all parties point to
the negotiations in the preceding March wherein Respondent, in a letter dated
March 2, 1948, enclosing a proposed agreement, stated that if the Union agreed
to the proposal it should be signed and returned so that the agreement could be
presented to the Respondent's stockholders at its annual meeting on March it
The letter concluded with this sentence : "Please understand that the commit-
ments set forth by us are subject to the approval of our stockholders at our
next meeting." The General Counsel and the Union point out that this sentence
was not reiterated in Respondent's letter of October 11, whereas the Respond.
ent contends that the Union having once been advised of the limitation on the
power of the • bargaining committee of the Respondent was on notice ' that this
restriction continued throughout the bargaining negotiations. The undersigned
finds it unnecessary to pass upon the respective contentions as to the letter of
March 2 upon his evaluation of the testimony of the witnesses. The undersigned
credits Hofheimer's. testimony that Askew, at the meeting of October 1, was
directly put on notice that the agreement would have to be submitted to the
Respondent's stockholders.
It is undisputed that the Respondent did not take any further steps to secure
approval of the contract by its stockholders. According to Hofheimer, he and
counsel for the Respondent were unable to meet until sometime around December
1. William P. Oberndorfer testified that he is associated with Charles L. Kauf-
man, counsel for the Respondent, and that both he and Kaufman were out of
the city of Norfolk from approximately November 8 to November 22, 1948. Hof-
heimer further testified that he was out of town at least a week after his counsel
returned.'
In any event, Hofheimer testified that he had received reports from Buford
Bookout, superintendent of the Respondent, that there was an undercurrent of
feeling among the men on the question of how to withdraw from the Union. They
decided to discuss it with their counsel and as a result Oberndorfer and Richard
C. Goodman, the Respondent's secretary and treasurer, drafted the following
statement which Goodman read to a group of six or eight employees :
At one time or another you have all mentioned to me that you and a lot of
of others here wanted nothing to do with the union. Now that's something
you have to decide for yourselves-whether you want a union. I'm not going
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to say anything about that one way or the other. But I can tell you what
your rights are under the law.
You remember that an election was held here a year ago. The law says
under certain conditions you can hold a new election after a year so every-
body can vote and decide whether they still want a union. Now, if you
want to, a new election can be held.
To hold a new election somebody has got to ask the government to hold a
new election. You ask for the election by filling out a simple form and mail-
ing it to the Government Board. But when you send that form to the Govern-
ment Board you've also got to send the Board something to show that a lot
of the men want to hold a new election.
In other words the first thing you have to do is to take a paper around to
the men and get a lot of them to sign it. The paper just says that those
men who sign it want one of you to ask for a new election. If enough men
sign the paper then one of you just fills out the simple form I mentioned and
send the form and the paper to the Board.
Now it's up to you to do exactly what you want.
Any questions?
If you decide you want to ask for a new election and you want me to, I'll
be glad to arrange it so you can get a paper for the men to sign and a form
for you to send to the Board.
Goodman testified that he did not read this statement to the approximately
40 or 45 production employees but selected those who had previously come to him
and expressed interest in withdrawing from the Union.
Goodman fixed the date of the reading of his statement as within a day or two
of December 10. Continuing his testimony Goodman stated that T. J. Newby, a
production employee, came to him several days after the statement was read
and asked him what had to be done to secure decertification of the Union' Good-
man told Newby in reply that he would have company counsel come out and give
1him the necessary information. He then communicated with Oberndorfer who
obtained the necessary forms from the Board, brought them to the plant, filled
them out in pencil and they were then typed by Albert B. Lawrence, office assistant
to Goodman and assistant secretary of the Respondent. Lawrence also typed up
a covering letter for Newby who sent the papers to the board. The date appear-
ing on the petition for decertification is December 1a."
The decertification petition, signed by Newby, was filed in the office of the
Regional Director on December 16, 1.948. It was dismissed by the Regional
Director on May 16, 1949.
Prior to the filing of the decertification petition, Lawrence, at Newby's re-
quest, had typed the following statement on a sheet of the company's stationery:
"You are authorized on our behalf to file a decertification proceeding. Please
net for us in asking for a new election at Southern Block and Pipe Corporation,
Newby did not testify at the hearing. Respondent indicated that while Newby was
still employed by it , it had no knowledge of his whereabouts during the hearing.
4 There is a conflict in the testimony of Oberndorfer and Lawrence as to whether or not
-Lawrence typed the papers in the presence of any other company officials or representatives.
Oberndorfer testified that Newby, Goodman , and perhaps Bookout were present at the time
he filled out the petition for Newby and that Lawrence typed it. On the other hand,
Lawrence testified that no one was present at the time he typed the papers for Newby
except Newby and that no one had requested him to type those papers on behalf of the
Respondent . Lawrence was very positive in his testimony and Oberndorfer was not certain
as to the actual situation and attempted to recall the situation as best he could. The
:undersigned credits Lawrence ' s version.
SOUTHERN BLOCK AND PIPE CORPORATION 597
Norfolk, Virginia." Lawrence testified that Newby had dictated the statement
to him and that lie had typed it as an accommodation for Newby without the
knowledge of other company officials. This statement is dated December 10,
1948. Newby proceeded to circulate this statement among the men and to, obtain
signatures. He finally obtained 42 signatures. He had some difficulty obtaining
the signatures of some of the employees. Two of these were Louis King and
Willie Minggia'.
King testified that he was approached by Newby who asked him to sigff the
petition and that when he refused, Newby took him to Bookout. King testi-
fied that Newby said to Bookout : "I tried to get this fellow to sign the paper" and
that Bookout said "There ain't much to tell him. After 12 months you must sign
another paper whether you want the union or not." King then signed the paper.
King further testified that Bookout asked Newby how many signatures he had
obtained and that Newby replied that lie had "nearly all of them." Bookout then
told Newby to try to get as many as lie could. King also testified that Bookout
told him that Askew, the union representative, had sent the paper down. King
later checked with Askew by phone who told him that he knew nothing of the
paper. On cross-examination King testified that he was not certain as to the
date on which he signed the paper or when he quit his employment shortly
thereafter. He further testified that he understood that the paper called for
an election where he could vote for or against the Union. He further testi-
fied, however, that he understood from Newby and Bookout that it was necessary
for him to sign the paper because an election was required every 12 months in
order for the Union to have any standing in the plant. He was positive thtrt
Bookout told him that the law required an election every 12 months.
Minggia also was in the office at the time that this conversation took place-
He'testified that Newby also took him to the office to see Bookout when he refused
to sign the paper and that Bookout told him: "It ain't for the union and it ain't
against the union. The law requires you to have a new election every 12
months." Minggia then had King sign the paper in his behalf. On cross-examina-
tion he testified! that he was not threatened or given any promises of any benefit
and that he knew that there would be an election if sufficient employees signed
the paper. He also, testified that he recalled Bookout saying that the petition
was not for or against the Union. He was positive that Bookout told him
that the law required an election every 12 months.
Willie Mason testified he also was approached by Newby and lie refused to
sign the paper. He then went to Bookout of his own volition to find out what
the paper was about. Bookout told him the paper called for a new election
and that he further stated "You can sign it and vote for the union or vote it out
either way you want to. Mason then stated he would sign the paper and did
so. Mason, just as the other witnesses, asserted that Bookout told him an elec-
tion was necessary every 12 months.
Joe Permiter also testified he went to Bookout for advice as to the.meaning of
the statement that Newby was circulating. His testimony was substantially
the same as that of Mason.
Henry Brown testified he was approached by Newby and signed the state-
ment after Newby told him Bookout had said that another election was necessary
after 12 months. However, Bookout did not have any direct conversation with
Brown.
Bookout testified lie did have a conversation with King and Minggia and that
Newby asked him to tell them about it and thereupon he, Bookout, said to the
men "You can sign it. It doesn't hurt the Company either way; it doesn't hurt
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union or help the union. It is up to. you to do what you want to do." He
denied he told the men that the law required them to sign the petition. He
further denied he talked to any other employees concerning it. He also denied
he had any further conversation with Newby concerning that paper and denied
he asked Newby how many signatures he had obtained.
He testified he had seen the paper lying on the desk in the office and that he
had glanced at it. He denied he was present when it was typed. He further
testified he knew Newby was getting something signed and that he had an idea
it was a decertification petition. He further amplified his testimony concerning
his talk with King by stating that King asked him at the time whether that
paper called for a new election and whether he should sign it. Bookout replied
that it called for a new election but also maintained he told him it was up to the
men to sign it or not, and it made no difference to him and that it wouldn't help
or hurt the company or the Union.
Askew learned from King of the circulation of the paper calling for a new
election. He then telephoned Goodman and asked him when the contract
would be returned by the Respondent.' Goodman replied that there had been
no opportunity to bring the stockholders together at one time and that was
one of the reasons for the delay. Askew then stated he had heard about a
petition being circulated which he assumed was a decertification petition and
asked if that had any bearing on the failure of the Respondent to return the
contract. Goodman replied that possibly it had some bearing and that the
]Respondent would not sign any agreement until the petition was disposed of
although the Respondent would sign the contract if the Union won an election..
Hofheimer also testified the reason the Respondent did not sign the contract
was because of the decertification activity.
On December 18, 1948, the Respondent sent the Union the following letter:
In accordance with our recent telephone conversation, we have con-
sulted our attorney' concerning the proposed contract. He feels that
inasmuch as we have received information indicating that you may not
now be. authorized to act its a representative of our employees and that the
NLRB has been requested to hold a decertification election, which will'
doubtless soon be ' held and will determine whether or not you are so
authorized, the further discussion and execution of the proposed contract
should rest in abeyance pending the outcome of the election. If the election
shows that you are authorized to act as the representative of our employees,
we will immediately thereafter confer with you, with a view to bringing out
negotiations to a prompt and mutually satisfactory conclusion.
The original charge herein, alleging interference and refusal to bargain, dated
December 15, 1948, was filed by Askew on behalf of the Union on December 17,
1948. An amended charge was filed on February 7, 1949. There have been no
further negotiations between the Union and the Respondent.
B. The refusal to bargain
The afore-mentioned agreement for a consent election dated Nov ' ember 24,
1947, sets forth the following as the agreed appropriate collective bargaining
unit.
All production and maintenance employees of the Employer's Norfolk, Va.,
Plant including janitors, night watchmen, and truck drivers but excluding
5 The findings as to this conversation are based upon the undenied testimony of Askew.
SOUTHERN BLOCK AND PIPE CORPORATION 599
all office clerical employees, foremen, and any individual having authority in
the interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or responsibly
to direct them, or to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of independent
judgment.
The Respondent does not challenge the appropriateness of the unit as set
forth in the agreement for consent election and as realleged in the complaint.
The undersigned accordingly finds that at all times here relevant all production
and maintenance employees of the Respondent employed at its Norfolk, Virginia,
plant, In c:u dina janitc s, night watch- cn, and trucl: drivers, but excluding all
office clerical employees, foremen and other supervisors, as defined in the Act,
at all times material herein, constitute and now constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
.
It is the General Counsel's contention that the Respondent from on or about
November 8, 1948, refused and continues to refuse to bargain collectively with the
Union. This allegation is based upon the admitted failure of the Respondent to
take any action towards completing the contract after the Union signed and
returned it on November S. As to this allegation, the Respondent argues in
defense that it was unable to arrange a meeting of the stockholders to pass upon
the contract until the beginning of December and at that time the activity among
its employees concerning the decertification of the Union caused it to withhold
further action until this alleged question concerning representation was
resolved.°
It must be noted that after receiving the signed contract from the Union,
the Respondent took no action to arrange for a stockholder's meeting to pass
upon the contract. While its attorneys were out of town for several weeks in
November there was no apparent necessity for any further discussions by Re-
spondent's officials and these attorneys in advance of a stockholders' meeting.
The contract, according to the Respondent's own witnesses, was ready for sub-
mission to the stockholders, yet nothing was done to even put the stockholders
on notice that a meeting was contemplated. Presumably, if no question con-
cerning the Union's majority representation had arisen in the minds of the
Respondent's officials, notices to stockholders would first have been sent ap-
proximately a month after receipt of the contract from the Union and there
would have been further delay before the contract would have been considered
at a formal meeting. Ordinarily a delay of several weeks would not, in and of
itself, be substantial evidence of a failure to live up to the requirement of
prompt bargaining required under the Act and the decisions interpreting the
statutory provisions, particularly in view of Respondent's apparent coopera-
tion with the Union in reaching an agreement. However, at the time that this
delay occurred the certification of the Union had been in existence for 11
months with no apparent advantage to the employees and with little results
as far as the Union's efforts on their behalf were involved. It is true a contract
had been presented to the union members at two meetings and that they had
O The undersigned has already considered and rejected the contention of the General
Counsel that a complete agreement had been reached when the Union returned its signed
contract on November 8 and that the Respondent was under an obligation to sign it at
that time without any further consideration.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approved it for submission to the Respondent, but then this additional delay for
no apparent reason as far as union members were concerned, certainly must have
been a source of discouragement and dissatisfaction to them. While the Re-
spondent was not responsible for any failure to reach agreement prior to Octo-
ber 8, it cannot be said that the ensuing delay thereafter, which was attributable
to it, was not a substantial factor in the apparent defection of employees from
the Union.
As to the Respondent's contention it ceased further efforts towards reaching
an agreement on or about December 1 because of activity among its employees
concerning the decertification of the Union, while there may have been some
talk among the employees of a desire to withdraw from the Union, as of Decem-
ber 1, no decertification petition was in existence nor was there any document
being circulated among the employees which had for its purpose or effect the
decertification of the Union. The Board has frequently held that an employer
is obligated to bargain with a certified union for a reasonable time, usually for
a period of 1 year after certification. The filing of a decertification petition
during that period has been held not to create a question concerning representa-
tion so as to relieve the employer. of the obligation to bargain with a certified
union.' The Board has reached the same result in a case of a petition presented
to an employer signed by a majority of its employees in a unit stating the signers
wished to sever their relations with a certified bargaining representative.'.
In the present case the Respondent ceased bargaining with the Union when
neither a decertification petition nor any petition to the employer was in existence.
Accepting the testimony of its witnesses in full, the contention of the Respondent
is that it was justified in withholding further bargaining when it heard of some
talk of dissatisfaction among its employees. The Board precedents previously
cited indicate that the Respondent was in error. The undersigned concludes the
Respondent at all times on and after October 8, 1948, failed and refused to bargain
collectively with the Union as the exclusive representative of its employees in
the unit heretofore found appropriate.
C. Other acts of interference, restraint, and coercion
The evidence is clear the Respondent, learning of some dissatisfaction with the
Union among its Employees, took action to channelize it and guide it into the.
path of decertification procedure.
In his speech, Goodman gave an explanation of the decertification procedure
-under the Act. However, at the conclusion of his speech he said, "If you decide-
you want to ask for a new election and you want me to, I'll be glad to arrange
it so you can get a paper for the men to sign and a form for you to send to the
Board." Not long after this speech was delivered, Newby began circulating the
petition on which the decertification application was based. The record does not
clearly indicate who furnished Newby with the wording which appears at the
beginning of this petition. Since, according to Goodman, Newby was ignorant
of the necessary forms of procedure, it may be safely assumed that be received
this information from an official of the Respondent or its counsel. In any event,
there is no dispute that the Respondent furnished Newby with advice and assist-
ance from its counsel in the preparation and filing of the necessary forms with
the Board. Goodman also helped Newby when Newby received further coin-
munications from the Board.
, Belden Brick Co., 83 NLRB 465; John Deere Killefer Corn-pony, 86 NLRB 1073 ; Cooper-
ative Industries, The., 85 NLRB 1258.
8 Vulcan Forging Company, 85 NLRB 621.
SOUTHERN BLOCK AND PIPE CORPORATION 601
The Respondent contends that in furnishing this assistance to Newby, it was
merely furnishing the type of assistance which it customarily furnished em-
ployees in other fields; that its employees were not well educated and often came
to company officials for advice on different matters and that company officials
customarily helped them with these problems. However, regardless of Respond-
ent's policies as to assistance to employees in other fields, the policies set forth
in the Act require that an employer not extend to one group of its employees active
support in seeking to have its views prevail as to the selection of a bargaining
representative. The undersigned finds that the Respondent by offering to assist
its employees in the procedure to decertify the Union and its active assistance
and advice in the preparation and filing of the decertification petition interfered
with the rights of its employees to engaged in collective bargaining activities.
free from employer participation, restraint, and coercion.'
Lawrence helped Newby by typing the heading on the decertification petition
and also by typing the necessary forms which Newby later sent to the Board.
The Respondent denies that Lawrence is a supervisory employee. Lawrence,
an office assistant to Goodman, takes care of office work, answers telephone in-
quiries concerning sales, takes care of shipping and invoices, and types letters
and checks for signature. He also has been appointed assistant secretary of
Respondent. He testified he was appointed to this position at his own suggestion
because Respondent, found it necessary to have someone available in the office
at all times to be able to sign waivers of lien, and Goodman was not always
in the office. As an official of the company, I awrence was. empowered to sign
these waihers. Lawrence had no supervision over any of the employees and
his duties, -is far as the record shows, did not bring him in active contact with
them. The undersigned finds the evidence does not establish that Lawrence
was a supervisory employee.
Lawrence testified he did the typing for Newby at the latter's request in line
with his practice of helping the employees by doing miscellaneous typing work
for them. He denied he received any orders to do the typing for Newby or that
any company official was present when he did the typing. There is no proof to
the contrary, and the undersigned finds that Lawrence's assistance to Newby
did not constitute any activity for which the Respondent is chargeable, under
the Act.
Bookout was a supervisory employee and did have conversations with at
least two employees concerning the petition which Newby was circulating. As
to these conversations, the principal point in dispute is whether Bookout told
King and Minggia that an election had to be held every 12 months and that they
hall to sign the petition. King testified Bookout told him he had to sign another
paper after 12 months to have an election. Minggia, who was, present in the
office at the time this conversation took place, testified Bookout told him that
a new election was required, but he did not make any mention of any state-
ment to hiin by Bookout that he had to sign the petition. Mason and Permiter
,testified Bookout told then they could sign the paper if they wanted to.
Bookout denied he told these men they had to sign the petition and that an
election was required. The undersigned finds his. testimony more credible than
those of the other witnesses. Just a few days before these conversations with
Bookout, Goodman had addressed a group of the men in which he had clearly
told them that a new election was not required, but that they could have it. It
would hardly seem reasonable for Bookout to take a position contrary to that
Keith Furnace Com.paniy, 73 NLItB 754.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his supervisor and also attempt to say the opposite of what Goodman had said
just a few days before, and of which he could assume all the employees had
knowledge either by hearing it directly from Goodman or by reports from those
who had been in attendance at the time the speech was delivered. The under-
signed also notes that King testified Bookout had questioned Newby as to how
successful the latter had been in obtaining signatures and urged him to get as
many as he could. On the other hand, Minggia who was present at the time,
made no mention of any such remarks. The undersigned, from his evaluation
of the witnesses, credits Bookout's testimony that he did not tell the men the
law required them to sign the petition. However, Bookout did mislead the em-
ployees as to the effect of the decertification petition when he told them, as he
admitted, that signing the petition would not hurt or help the Union or the Re-
spondent. Clearly, the filing of the petition placed the Union's bargaining
status in jeopardy. The undersigned, from his observation of Bookout and
from a study of his testimony, is convinced and finds that Bookout meant to
convey to the employees with whom he spoke that the paper itself would call
only for an election, and that a later election at which the men could vote either
way would decide.the issue of the Union's bargaining status. While he did mis-
lead his listeners, the undersigned is convinced that. his statements represented
his opinion of the effect of signing the petition and that they were noncoercive
in character and that he was not motivated by a coercive or discriminatory intent.
The undersigned, accordingly, finds Bookout's statements were not violative of
the Act.10
The General Counsel also contends the Respondent should be held accountable
for Newby's statement to Henry- Brown that another election was necessary after
12 months. The General Counsel contends Newby had been made the agent of
the Respondent to the extent that his conduct in circulating the petition, and
statements he made in the course thereof, bound the Respondent. The under-
signed finds that while the Respondent did assist Newby in his efforts, it did not
by its statements .or other activities, make him its agent and that it accordingly
is not responsible for Newby's statements to Brown.
The complaint alleges the Respondent interrogated its employees with respect
to their union affiliation and sympathies. The General Counsel concedes there
was no direct evidence of any such interrogation, but contends that the assistance
the Respondent furnished in the circulation of the decertification petition neces-
sarily brought it the information as to who was or was not sympathetic towards
the Union, and that this amounted to a violation of the Act. The undersigned
rejects this contention and finds the evidence does not establish the Respondent
interrogated its employees with respect to their union affiliation and sympathies.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to be unfair labor practices tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
1° The Texas Company, 80 NLRB 862; Strathmore Packing House Company, 68 NLRB 214.
SOUTHERN BLOCK AND PIPE CORPORATION 603'
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom in order
to effectuate the policies of the Act.
Having found that there has been a refusal to bargain with the Union, the
undersigned will recommend that the Respondent, upon request, bargain col-
lectively with the Union as the representative Of all of its employees in the appro-
priate unit previously described.
It has also been found that the Respondent channelized opposition to the Union
as collective bargaining representative and assisted in the preparation and filing.
of a decertification petition. The scope of the illegal conduct is indicative of a
purpose to defeat self-organization among the employees. Such conduct reflects
a determination generally, to interfere with, restrain, and coerce employees in
the exercise of the right to self-organization, to form, join, or assist labor organi-
zation, 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. The undersigned concludes that if the Respond-
ent is not restrained from committing such conduct the danger of its commission
in the future is to be anticipated from the conduct of the past and the policies of
the Act will be defeated. In order, therefore, to make effective the interdependent
.guarantees of Section 7 of the Act to prevent the recurrence of unfair labor
practices and thereby minimizing industrial strife which burdens and obstructs
commerce,.and to thus effectuate the policies of the Act, the undersigned will
.recommend that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act." Upon the basis of the fore-
going findings of fact and upon the entire record in the case, the undersigned
makes the following :
CONCLUSIONS OF LAW
1. International Union of. Operating Engineers Local No. 147-C, A. _F. of L.,
is a labor organization within the meaning of the Act.
2. All production and maintenance employees of the Respondent employed at
its Norfolk, Virginia, plant, including janitors, night watchmen, and truck drivers,
but excluding all office clerical employees, foremen and other supervisors, as de-
fined in the Act, at all times material herein, constitute and now constitute a
unit appropriate for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. International Union of Operating Engineers Local No. 147-C, A. F. of L., was
at all times material herein, and now is, the exclusive representative of the em-
ployees in said unit for the purpose of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By failing and refusing to bargain with the Union on October 8, 1948, and
at all times thereafter as the exclusive representative of employees in the appro-
priate unit, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
5. By. the above conduct and by assisting in the preparation and filing of, a
petition to decertify the Union as collective bargaining representative, the Re-
spondent has interfered with and is interfering with, restraining , and coercing
"May Department Stores, etc . v. N. L. R. B., 326 U. S. 376.
:604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 S (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. It has not been established that the Respondent interrogated its employees
with respect to their union affiliation and sympathies.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, Southern Block and Pipe Corporation,
Norfolk, Virginia, its successors and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of Operating
Engineers Local No. 147-C, A. F. of L., as the exclusive representative of its em-
ployees in the unit heretofore found appropriate with respect to rates of pay,
wages, hours of employment, or other conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its employees
'in the exercise of their rights to self-organization, to form labor organizations,
to join or assist International Union of Operating Engineers Local No. 147=C,
A. F. of L., 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 International Union of Operating
Engineers Local No. 147-C, A. F. of L., as the exclusive representative of all
production and maintenance employees of the Respondent employed at its
Norfolk, Virginia, plant, including janitors, night watchmen, and truck drivers,
but excluding all office clerical employees, foremen, and other supervisors as
defined in the Act, with respect to rates of pay,'wages, hours of employment,
or other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement ;
(b) Post at its plant at Norfolk, Virginia, copies of the notice attached hereto
marked Appendix A. Copies of said notice, to be furnished by the Regional
Director. for the Fifth Region, after being signed by the Respondent or its
representative, shall be posted by it immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily 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 Fifth Region in writing within
twenty (20) days from the receipt of this Intermediate Report and Recommended
Order what steps the Respondent has taken to comply therewith.
It is also recommended that unless the Respondent within twenty (20) days
from the receipt of this Intermediate Report and Recommended Order, shall
SOUTIIERN BLOCK AND PIPE CORPORATION 605.
notify the 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.
. It is further recommended that the complaint be dismissed insofar as it
alleges that the Respondent interrogated its employees with respect to their
union affiliation and-,sympathies.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) clays from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such excep-
tions to the Intermediate Report and Recommended Order 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 six copies of a brief in support
thereof ; and any party may, within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the tiling of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the
portions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.85 . As further provided in said Section 203.46 should any party de-
sire 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 service of the
order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 9th day of February 1950.
SIDNEY L. FEILER, Trial Exami'ncr.
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 em-
ployees in the exercise of their right to self-organization, to form labor organ-
Nations, to join or assist INTERNATIONAL UNION OF OPERATING ENGINEERS-
LOCAL No. 147-C, A. F. of L., 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. All our employees are free to become or remain members
of this union, or any other labor organization.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL BARGAIN collectively upon request with the above-named unioi
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 of the Respondent employed
at its Norfolk, Virginia, plant, including janitors, night watchmen, and truck
drivers, but excluding all office clerical employees, foremen, and other super-
visors as defined in the Act.
SOUTHERN BLOCK AND PIPE CORPORATION,
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.