Whiting Corp.

National Labor Relations Board - Board Decisions

May 14, 1952

99 N.L.R.B. 107 (N.L.R.B. 1952)

WHITING CORPORATION 107
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
the undersigned will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Inasmuch as the unfair labor practices found above reveal on the part of
Respondents a fundamental antipathy to the objectives of the Act and therefore
justify an inference that the commission of other unfair labor practices may be
anticipated in the future, the undersigned will recommend that Respondents be
ordered to cease and desist from in any manner interfering with, restraining,
and coercing their employees in the exercise of the right q guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
WHITING CORPORATION, SPENCER AND MORRIS DIVISION and INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND
HELPERS OF AMERICA, LODGE No. 92, A. F. OF L . Case No. 21-CA-
1081. May 14,1952
Decision and Order
STATEMENT OF THE CASE
Upon a charge filed on April 3, 1951, by International Brotherhood
of Boilermakers, Iron Shipbuilders and Helpers of America, Lodge
No. 92 A. F. of L., herein called the Union, the General Counsel of
the National Labor Relations Board, by the Regional Director for
the Twenty-first Region (Los Angeles, California), issued his com-
plaint dated May 10, 1951, against Whiting Corporation, Spencer and
Morris Division, Los Angeles, California, herein called the Respon-
dent, alleging that the Respondent had engaged in and was engaging
in- unfair labor practices affecting commerce within the meaning of
99 NLRB No. 27.
108 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
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.
Copies of the charge, complaint, and notice of hearing were served on
the parties on May 11, 1951.
With respect to the unfair labor practices, the complaint alleged
in substance that, on or about March 19, 1951, and at all times there-
after, the Respondent refused to bargain collectively with the Union,
the duly designated bargaining representative of its employees in an
appropriate unit.
The Respondent filed its answer on May 29, 1951, admitting the
refusal to bargain, but asserting as affirmative defenses that (a) the
Board erroneously determined that the Union represent a majority of
its employees, and (b) on May 11, 1951, a majority of employees in
the appropriate unit repudiated the Union as their bargaining repre-
sentative.
Pursuant to notice, a hearing was held on July 2 and 3, 1951, at Los
Angeles, California, before A. Bruce Hunt, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel, the
Respondent, and the Union were all represented by counsel. All par-
ties participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. After the presentation of the evidence,
the parties waived oral argument and the right to file briefs, proposed
`findings, and conclusions with the Trial Examiner.
With the agreement of the parties, the Trial Examiner on July 3,
1951, dictated his Intermediate Report into the record (transcript
pages 103-116), finding that the Respondent had violated Section 8
.(a) (1) and (5) of the Act, as alleged in the complaint, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report. Thereafter, the
Respondent filed exceptions, a brief, and an addendum to the brief 1 in
support of the exceptions.
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-member
panel [Chairman Herzog and Members Houston and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.2
1 The General Counsel and the Union both moved to strike the addendum to the brief
on the ground that it was filed too late. In its order transferring the case to itself, the
Board specifically stated that exceptions could be filed on or before August 9, 1951. The
addendum was received on August 8, 1951, within the time limitation -set forth in the
Board's order. The motions to strike the addendum are therefore denied.
2 At the bearing the Respondent moved to dismiss the complaint. For reasons discussed
infra, the motion is hereby denied.
WHITING CORPORATION 1090
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and makes the following findings, conclusions, and order.'
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Whiting Corporation, an Illinois corporation hav-
ing its principal place of business at Harvey, Illinois, is engaged in
the manufacture of industrial machinery and equipment at a plant in
Los Angeles, California, known as the Spencer and Morris Division.
During the 12-month period ending April 30, 1950, the Respondent
purchased raw materials, equipment, and supplies valued at more
than $250,000, of which approximately 48 percent was shipped to the-
Los Angeles plart from sources outside the State of California. Dur-
ing the same period, the Respondent sold finished products valued in
excess of $500,000, of which approximately 45 percent was shipped
from the Los Angeles plant to points outside the State.
The Respondent admits, and we find, that it is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, Lodge No. 92, A. F. of L., is a labor organiza-
tion admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The parties agree, and we find, that all production, maintenance,
and repair employees at the Respondent's Los Angeles, California,
plant, including storekeepers, shipping and receiving clerks, and
' The Board agrees with the findings , conclusions , and recommendations of the Trial
Examiner. However, as the Intermediate Report is included in the transcript and is not
readily available , the Board makes its own findings in this Decision and Order.
One of the principal issues before the Trial Examiner concerned the adequacy of the
Board's original investigation into the eligibility to vote of John D. Norgard and the right
of the Respondent in this unfair labor practice proceeding to litigate this question. After
issuance of the Intermediate Report , on motion of the Respondent , the Board reopened
the record in the representation proceeding for the purpose of conducting a formal hearing
on Norgard's eligibility . After such hearing, the Board reaffirmed its earlier finding that
Norgard was eligible to vote in the election and that the Union was properly certified as
bargaining representatives (99 NLRB 117 .) In view of the above, and the further
fact that the record in the representation proceeding is part of the record in the present
unfair labor practice proceeding , we consider that the issue based on the sufficiency of the-
Board's earlier investigation of Norgard ' s eligibility and the right to relitigate this question,
has become moot and need not be discussed here.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working leadmen, but excluding electricians, clerical and profes-
sional employees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
B. The Union's majority status
On October 18, 1950, pursuant to a Board Decision and Direction
,of election, an election by secret ballot was conducted among em-
ployees in the appropriate unit. Of 35 ballots cast, 17 were for the
Union, 16 were against the Union, and 2 were challenged 4 As the
challenged ballots were sufficient in number to affect the results of
the election, the Regional Director investigated the challenges and
recommended that they be overruled. The Respondent excepted to
the Regional Director's ruling as to one of the challenged voters,
John D. Norgard (also known as Jack Norgard), contending that
he was not an eligible voter. On February 2, 1951, the Board upheld
the Regional Director's rulings and directed that both challenged
votes be opened and counted.5 The revised tally of ballots showed
that 18 votes had been cast for, and 17 against, the Union. There-
upon, on February 16, 1951, the Board certified the Union as bargain-
ing representative of the employees in the appropriate unit.
Subsequently, on August 6, 1951, after the issuance of the Inter-
mediate Report in this case, the Respondent filed a motion to reopen
the record in the representation proceeding and to conduct a hear-
ing on the voting eligibility of Norgard. The Board granted the
motion. After a hearing we have reaffirmed the earlier decision that
Norgard was eligible to vote in the election .6
Accordingly, the Board finds that on February 16, 1951, and at all
times thereafter, the Union was and now is the exclusive representa-
tive of all. the employees in the above-described appropriate unit for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
C. The refusal to bargain
On February 27, 1951, after the Board issued its certification, the
Union requested a meeting with the Respondent for the purpose of
negotiating an agreement covering employees in the appropriate unit.
On March 28, 1951, after some intervening correspondence, the Re-
spondent replied that it would not proceed with negotiations "until
such time as it has been conclusively determined whether or not the
4 Another labor organization , International Association of Bridge , Structural and Orna-
mental Iron Workers, Local 509, AFL, was also on the ballot, but received no votes.
s 92 NLRB 1851.
* Whiting Corporation, Spencer and Morrie Division, 99 NLRB 117.
'WHITING CORPORATION 111
:Board's ruling in regards to Norgard's 'vote is proper." The Re-
spondent also invited the Union to file a refusal-to-bargain charge with
the Board, in order that the validity of the Board's finding as to
Norgard could be judicially determined.
We find that on March 28, 1951,,and, thereafter, the Respondent
refused to bargain collectively with the Union in violation of Sec-
tion 8 (a) (5) of the Act, thereby also interfering with, restraining,
.and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above,
-occurring in connection with the operations of the Respondent de-
scribed- 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, and have led to, labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
The Respondent contends that no remedial order should be entered
in this case, because its refusal to bargain was only technical and
because after that refusal a majority of employees repudiated the
Union. In this connection, the Respondent offered to prove that on
May 11, 1951, after it had refused to bargain with the Union, it
received a petition signed by approximately 70 percent of the em-
ployees in the appropriate unit, repudiating the Union as bargaining
representative. The Trial Examiner rejected the offer upon the
ground that, as the repudiation occurred after the refusal to bargain,
it was not the motivating factor-in that refusal,r and therefore could
not render ineffective the certification of February 16, 1951.
On March 28, 1951, as we have found, the Respondent unlawfully
-refused to bargain with the Union. It is not material, as a matter of
law, that the refusal was based on a desire to secure judicial review
.of a determination made in the earlier representation proceeding.8
° On May 18, 1951, after the receipt of the petition repudiating the Union, the Re-
spondent wrote the Union that the petition "constitutes an additional reason for declining
to bargain with your organization on behalf of our employees."
8In its brief, the Respondent attempts to draw a distinction between "technical"
and "wrongful" refusals to bargain. In the first category it would put refusals designed
to'secure judicial review of Board determinations; in the second, refusals to bargain
motivated by bad faith. It would apply the Franks Bros. (infra) doctrine to the latter,
but not to the' former category. -As. we.•bave.indicat6d,,above, we believe' that the' effect
upon employees of a refusal to bargain is as great in one case as in the other. We per-
ceive no basis therefore for limiting the Franks Bros. doctrine to so-called "wrongful"
refusals to bargain.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discouraging effect upon employees of a refusal to bargain is not
likely to be different because of the motive animating the employer.
As the Board has said : 9
Employees join unions primarily in order to secure the benefits
of collective bargaining. When an employer refuses to bargain
with a union, especially when the refusal is protracted, employee
support usually withers and dies. Old employees lose interest and
resign; new employees refuse to join. The effect of an unremedied
refusal to bargain with a union, even where standing alone and
unaccompanied by any other unfair labor practices, is to discredit
the union in the eyes of old and new employees, to drive them to
a second choice, or to persuade them to abandon collective bar-
gaining altogether.
Any loss of the Union's majority after March 28, 1951, must, there-
fore be attributed to the Respondent's unlawful refusal to bargain: 0
We have found that the Respondent unlawfully refused to bargain
with the Union. We believe that to effectuate the policies of the
Act, we must order the Respondent to bargain with the Union for the
employees in the appropriate unit.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, Lodge No. 92, A. F. of L., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All production, maintenance, and repair employees at the Re-
spondent's Los Angeles, California, plant, including storekeepers,
shipping and receiving clerks, and working leadmen, but excluding
electricians, clerical and professional employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, Lodge No. 92, A. F. of L., was on February
Lancaster Foundry Corporation , 82 NLRB 1255.
10 Franks Bros. Company v. N. L. R. B., 321 IT. S. 702 ; N. L. R. B . v. Sanson Hosiery Mills,
Inc., 195 F. 2d 350 (C. A. 5 ) ; West Texas Utilities Co. v. N . L. R. B., 184 F. 2d 233
( C. A. D. C. ) ; N. L. R. B. v. Andrew Jergen8 Company, 175 F. 2d 130 ( C. A. 9).
The Respondent relies on N. L. if. B . v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6), to
excuse its refusal to bargain . In that case, shortly after certification , but before the
conclusion of negotiations , the employees repudiated their union. The employer thereupon
refused to bargain. The court held that the employer 's refusal was lawful. However,
unlike the present case , the repudiation occurred before the refusal to bargain and could
not be attributed to that refusal . We do not therefore consider the Vulcan Forging case
apposite.
WHITING CORPORATION 113
16, 1951, and at all times since has been, the exclusive representative
of all employees in the appropriate unit for purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on and after March 28, 1951, to bargain collectively
with International Brotherhood of Boilermakers, Iron Shipbuilders
and Helpers of America, Lodge No. 92, A. F. of L., as the exclusive rep-
resentative of its employees in an appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
-spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
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, Whiting Corporation,
Spencer and Morris Division, Los Angeles, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
Lodge No. 92, A. F. of L., as the exclusive representative of all its
employees in the appropriate unit with respect to rates of pay, wages;
hours of employment, or other conditions of employment.
(b) In any other manner interfering with the efforts of Interna-
tional Brotherhood of Boilermakers,' Iron Shipbuilders and Helpers
of America, Lodge No. 92, A. F. of L., to negotiate for or represent
the employees in the appropriate unit.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Brother-
hood of Boilermakers, Iron Shipbuilders and Helpers of America,
Lodge No. 92, A. F. of L., as the exclusive representative of all em-
ployees in the appropriate unit described above, and embody any
understanding reached in a signed contract.
(b) Post in conspicuous places at its plant in Los Angeles, Califor-
nia, including all places where notices to employees are customarily
posted, copies of the notice attached hereto as Appendix?' Copies
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Derision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, to be furnished by the Regional Director for the-
Twenty-first Region, shall, after.being duly signed by the.Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for at least sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by the Respondent too
insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Twenty-firsbRegion, Los,,
Angeles, California, in writing of the steps 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 bargain collectively upon request with INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND HELPERS
OF AMERICA, LODGE No. 92, A. F. OF L., as the exclusive representa-
tive of all employees in the bargaining unit described below, with
respect to rates of pay, wages, hours of employment, other con-
ditions of employment and, if any understanding is reached, em-
body such understanding in a signed agreement. The bargaining
unit is : -
All production, maintenance, and repair employees at our
Los Angeles, California, plant, including storekeepers, ship-
ping and receiving clerks; and working leadmen, but exclud-
ing electricians, clerical and professional employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of INTER-
NATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS
AND HELPERS OF AMERICA, LODGE No. 92, A. F. OF L., to negotiate
for or represent the employees in the aforesaid unit as their exclu-
sive bargaining agent.
WHITING CORPORATION,
SPENCER AND MORRIS DIVISION,
Employer.
By -----------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.