Crater Lake Machinery Co.

National Labor Relations Board - Board Decisions

Jun 12, 1961

131 N.L.R.B. 1106 (N.L.R.B. 1961)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crater Lake Machinery Co. and Hoisting & Portable Engineers
Local Union No. 701, International Union of Operating Engi-
neers, AFL-CIO. Case No. 36-CA-992. June 12, 1961
DECISION AND ORDER
On August 24, 1960, Trial Examiner James R. Hemingway issued
his Intermediate Report and Recommended Order 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 Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 exceptions and brief, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, with the following additions and
amplifications :
1. We agree with the Trial Examiner that the Respondent refused
to bargain in good faith on October 13, 1959, in that, through Miller,
its president, it bypassed the Union and went directly to the employees
with its wage proposals. The mere fact that the Respondent may
have subsequently bargained in good faith for a period of time did
not absolve it of the unfair labor practice previously committed. We
therefore find that the Respondent on October 13, 1959, as well as on
January 5, 1960, and in December 1959, as found by the Trial Exam-
iner, refused to bargain with the Union in violation of Section
8 (a) (5) and (1) of the Act.
2. In adopting the Trial Examiner's finding that the Respondent,
through President Miller, authorized and was therefore responsible
for Pickering's unlawful solicitations of the striking employees, we
rely, as did the Trial Examiner, on the credited testimony that Miller,
with knowledge of Pickering's intention to speak to the strikers con-
cerning their return to work, informed Pickering on or about De-
cember 10 of his policy with regard to the probable benefits which
the strikers would receive upon their return. It is evident that Miller
conveyed this information with the obvious intent of having Picker-
ing relay it to the striking employees for the purpose indicated.
131 NLRB No. 140.
CRATER LAKE MACHINERY CO. 1107
It is also evident that, in furtherance of his delegated task, Picker-
ing did convey Miller's proposal to his fellow employees. Thus, it
appears that the striking employees whom Pickering contacted later
questioned Miller at a December 14 meeting about his willingness to
pay "a wage of $2.85 an hour" to the experienced mechanics and also
about "their yearly bonus," the very same benefits which, according
to Pickering, Miller had indicated he would or might offer. In this
regard, Pickering admitted that Miller, in the course of their Decem-
ber 10 conversation, may have said that a wage figure of $2.85 "might
be workable," and that he [Miller] would decide on the anniversary
gift within the next few days, and the condition under which it would
be payable.
Although Miller denied having authorized a wage increase to $2.85,
his subsequent conduct belies such denial. Thus, the credited testi-
mony of employee Detto establishes that in the course of the December
14 meeting, Miller said the $2.85 rate "sounded fair." Miller did in
fact distribute a bonus to those employees who had returned or indi-
cated their intention to return before the year's end. Furthermore,
while distributing the annual bonus to some of his employees in the
latter part of December, Miller spoke of the wage adjustment to be
made after the first of the year and went so far as to indicate to em-
ployee Weatherby that "he wouldn't be sorry after he got his pay
check after the first of the year." Shortly thereafter the heavyduty
mechanics and welders did in fact receive a wage increase to $2.85
an hour, retroactive to January 1, 1960, a rate which the Respondent
had never offered to the Union.
In view of the foregoing, we find that the evidence establishes that
the Respondent authorized Pickering to act as its agent in unlawfully
soliciting the striking employees to return to work, that Pickering
executed this authorization, and in so doing that the Respondent vio-
lated Section 8(a) (5) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Crater Lake Ma-
chinery Co., Klamath Falls, Oregon, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Hoisting & Portable
Engineers Local Union No. 701, International Union of Operating
Engineers, AFL-CIO, as the exclusive representative of all the me-
chanics, welders, and helpers employed by the Respondent at its
Klamath Falls, Medford, and Redmond, Oregon, plants, excluding
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sales and office personnel, partsmen, guards, professional employees,
and supervisors as defined in the Act.
(b) Making or effecting any changes in the rates of pay, wages,
hours, or other terms or conditions of employment of its employees in
the appropriate unit without giving notice to, and bargaining with, the
aforesaid Union.
(c) Dealing directly with its employees with respect to rates of pay,
wages, hours, or other terms or conditions of employment in disregard
of the above-named Union.
(d) Soliciting individual employees to abandon their lawful strike
activities by promising an annual gift or bonus and increased wages
to those who do return to work.
(e) Discouraging employees from participating in lawful strike
activities by refusing to grant an annual gift or bonus to the striking
employees because of their participation in the strike.
(f) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to bargain collec-
tively through Hoisting & Portable Engineers Local Union No. 701,
International Union of Operating Engineers, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, in-
cluding the right to strike, or in any like or related 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
Hoisting & Portable Engineers Local Union No. 701, International
Union of Operating Engineers, AFL-CIO, or any other labor organi-
zation of their own choosing, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Pay to each of its employees who was on strike during the period
in December 1959 when the checks for the annual gift or bonus were
distributed and who did not receive such a check (because the Respond-
ent withheld such gift or bonus on the ground that such employee was
on strike) the sum of $300, the amount of such annual gift or bonus,
provided that such employee had been in the Respondent's employ for
a period of not less than 1 year before September 1, 1959.
(b) Upon request, bargain collectively with Hoisting & Portable
Engineers Local No. 701, International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of all its employees in the
bargaining unit hereinabove described, with respect to wages, rates of
CRATER LAKE MACHINERY CO. 1109
pay, hours of employment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(c) Post at its plants in Klamath Falls, Medford, and Redmond,
Oregon, copies of the notice attached hereto marked "Appendix." I
Copies of said notice, to be furnished by the Regional Director for the
Nineteenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IIn 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 Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
'"TE WILL bargain collectively, upon request, with Hoisting &
Portable Engineers Local Union No. 701, International Union of
Operating Engineers, AFL-CIO, as the exclusive representative
of all our employees in the bargaining unit described below with
respect to rates of pay, wages, hours, and other terms and con-
ditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement. The bargaining
unit is:
All mechanics, welders, and helpers employed at our Klamath
Falls, Redmond, and Medford, Oregon, plants, excluding
sales and office personnel, partsmen, guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL pay to each of our employees who was on strike during
the period in December 1959 when the checks for the annual gift
or bonus were distributed, and who did not receive such a check
because such employee was on strike, the sum of $300, the amount
of such annual gift or bonus, provided that such employee had
been in our employ for a period of not less than 1 year as of
September 1, 1959.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AVE WILL NOT make or effectuate any changes in the rates of pay,
wages, hours, or other terms or conditions of employment of our
employees in the appropriate unit without giving notice to, and
bargaining with, the above-named Union.
WE WILL NOT deal directly with employees in the appropriate
unit with respect to rates of pay, wages, hours, or other terms and
conditions of employment in disregard of the exclusive bargaining
representative.
WE WILL NOT solicit individual employees to abandon their
lawful strike activities by promising an annual gift or bonus and
increased wages to those employees who do return to work.
WE WILL NOT discourage employees from participating in law-
ful strike activities by refusing to grant an annual gift or bonus to
the striking employees because of their participation in the strike.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
bargain collectively through Hoisting & Portable Engineers Local
Union No. 701, International Union of Operating Engineers,
AFL-CIO, 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, including the right to strike, or
in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Hoisting & Portable
Engineers Local No. 701, International Union of Operating En-
gineers, AFL-CIO, or any other labor organization of their own
choosing, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a, condition of employment,
as authorized in Section 8(a) (3) of said Act.
CRATER LAKE MACHINERY CO.,
Employer.
Dated---------------- By-------------------------------------
(Representa tive ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint , duly issued , alleges violations by Crater Lake Machinery Co.,
herein called the Respondent , of Section 8(a)(1) and ( 5) of the National Labor
Relations Act, as amended , 61 Stat. 136, herein called the Act. Specifically , the com-
plaint alleges that Hoisting & Portable Engineers Local Union No. 701, International
Union of Operating Engineers , AFL-CIO, herein called the Union , was, following
a consent election on July 1, 1959 , the certified bargaining representative of all me-
CRATER LAKE MACHINERY CO. 1111
chanics, welders, and helpers employed by the Respondent, excluding sales and office
personnel, partsmen, guards, supervisors, and professional employees as defined in
the Act; that the Umon requested the Respondent on July 15, 1959, to bargain with
it, that the Respondent thereupon refused and since has continued to refuse to bar-
gain with the Union in good faith and on about December 15, 1959, dealt directly
with individual employees on the subject of wages and other conditions of employ-
ment without giving the Union an opportunity to be present; and that since July
15, 1959, the Respondent interfered with, restrained, and coerced its employees by
numerous acts, including (1) telling its employees individually that Respondent
would not deal or contract with the Union, (2) telling employees assembled in a
group that Respondent would not contract with the collective-bargaining representa-
tive, (3) telling employees in a group that the Respondent would not negotiate with
the employees as a group but only individually and on an individual basis, (4) solicit-
ing individual strikers to return to work and abandon their concerted activity by
promising them improved conditions if they abandoned their concerted activity and
returned by a certain date, and the payment of a bonus to those who returned to
work by a certain date, and the refusal to pay a similar bonus to those who engaged
in concerted activity and would not abandon their strike activity, and (5) raising
the hourly wage of one Alan Bishop, a member of the bargaining unit, 10 cents per
hour as of September 1, 1959, and reducing the same on October 1, 1959, to what it
had been before the raise when said Bishop engaged in concerted activity and struck
with other members of the unit. The Respondent, in its answer, denied the several
alleged unfair labor practices.
Pursuant to notice, a hearing was held at Klamath Falls, Oregon, before the duly
designated Trial Examiner on March 8 and 9, 1960. All parties were represented
by counsel and participated in the hearing. At the close of the hearing, a date was
set for the filing of briefs. Briefs were received from the General Counsel and the
Respondent and have been considered.
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find that the Respondent is an
Oregon corporation with its principal place of business in Klamath Falls, Oregon,
and with branch facilities in Medford and Redmond, Oregon; that it is, and at all
times material hereto has been, engaged in the business of tractor and heavy equip-
ment sales, parts, and service at the several locations mentioned; and that during
the year 1959, the Respondent purchased tractors and heavy equipment in an amount
in excess of $3,000,000, of which such goods of a value in excess of $2,000,000 were
received directly from points outside the State of Oregon. I conclude that the
Board has jurisdiction and that it will effectuate the purposes of the Act to assert
jurisdiction.
II. THE LABOR ORGANIZATION
The Union is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain; the facts
1. The appropriate unit and the Union's majority therein
The complaint alleges, the answer admits, and I find that all mechanics, welders,
and helpers employed by the Respondent, excluding sales and office personnel, parts-
men, guards, supervisors, and professional employees as defined in the Act, consti-
tute a unit appropriate for the purpose of bargaining within the meaning of Section
9(b) of the Act and that as a result of a constant election held on July 1, 1959, the
Union became, and was, at all times material herein, the certified bargaining repre-
sentative of the employees in the aforesaid unit within the meaning of Section 9(a)
of the Act.'
2 Bargaining history
As a result of arrangements made in a telephone call, representatives of the Union
and the Respondent met on August 27, 1959, and the Union at this meeting agreed
to present a proposed contract in writing for the second meeting. The Union pre-
1 The certification date was July 10, 1959
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pared and furnished such proposal and the parties again met in mid -September.
The principal spokesman for the Respondent was Stanley Miller, president of the
Respondent , and the principal spokesman for the Union was Carl Reams, field super-
visor, negotiator , and business representative of the Union. These two attended all
bargaining sessions between the Union and the Respondent . A representative of
another local union , Charles Lewis, accompanied Reams to certain of the meetings.
The time at the second meeting was occupied by a discussion of the Union's pro-
posals. Among other provisions in the proposed agreement were those for a hiring
hall and union shop , for hours of work, for reporting time and minimum pay, for
seven paid holidays, for vacations , for employer's contribution to the Union's health
and welfare fund , for pensions , for wages ($3 for heavy-duty mechanics and welders
and $2.60 for helpers both as of July 1 , 1959, with a 20-cent increase on January
1, 1960, helpers to receive a 5-cent an hour increase every 3 months until the
journeyman 's scale was reached ), and for plant seniority . No agreement resulted,
and the Respondent agreed to submit a counterproposal at the next meeting. Be-
fore the Respondent was presented with the Union's classification of the Respondent's
employees as heavy-duty mechanics and helpers , the Respondent had made no dif-
ferentiation in classification . Whether beginners or not, all were classified as me-
chanics, but they were paid a wage rate determined by the Respondent's estimate of
their ability . These wages ranged from $ 1 80 to $2.50 an hour in September 1959.2
The parties next met on October 15 , 1959, and the Respondent presented its pro-
posed agreement . This was patterned topically along the lines of the Union's
proposed agreement , but the Respondent 's proposals contained a number of modifi-
cations or changes. This proposed agreement contained a slightly modified recogni-
tion clause , the same no-discrimination clause, a substitute hiring clause permitting
the Respondent to hire anyone , but containing a modified union-shop clause covering
employees thereafter hired, all present employee members, and all present non-
member employees who later joined , but excluding present employees who were not
members. It modified the provision for discharge upon notice of nonpayment of
dues by providing a 10-day grace period. The seniority clause was altered to re-
duce seniority to one of a number of factors to be weighed by the Employer. The
Union's provision for hours of work was modified to permit the Respondent to de-
termine commencement of time but otherwise was substantially as proposed by the
Union. The provision for -work performed away from the shop was the same as in
the Union 's proposed agreement . That for reporting time was modified only by
omission of the Union 's language applying the clause to employees ordered by the
Respondent through the Union. The Respondent 's proposed agreement provided
for six, instead of the Union 's proposed seven , holidays. The Respondent's proposal
on vacations (as compared to the Union 's) increased the prerequisite time slightly
for a 1 week 's vacation , by 2 years for a 2 weeks ' vacation , but modified only
slightly the prerequisite time for a 3 weeks' vacation after 15 years' employment.
The Respondent 's proposals adopted, with but slight ( and not unreasonable) modi-
fication, the Union's proposal for employer contribution to the Union's health and
welfare fund . The principal difference in the proposals 4ay in the wage clause
The Respondent proposed $2.75 an hour for journeymen effective on the signing of
the agreement , $2 an hour for helpers, with a 5-cent raise each 3 months until the
journeyman 's rate was reached. It also proposed that the new helper's base rate,
after I month's employment, should be set by agreement between the Respondent
and the new employee . This procedure was the Respondent 's existing practice.
The Respondent proposed a 3-year agreement (ending December 31 , 1962) with
no reopening for modification before that date.
At the October 15 meeting, the parties went over the Respondent 's proposals.
Reams suggested that Miller employ someone who knew more about collective
bargaining . The parties met again on October 16, and Miller was accompanied by
the Respondent's attorney, Maxwell , and a supervisory employee. At the meeting
on October 16, the parties discussed both proposals but worked mostly with the
Union's The parties reached a satisfactory compromise on certain provisions but
the Respondent refused to increase its wage offer , and the Union apparently refused
to alter its union -shop proposal . Reams undertook to redraft the Union's proposed
agreement to reflect the several changes reached.
2 At Medford , Oregon , 1 3 mechanics received $ 2.50: 2 received $ 2 40, 10 received $2 25 :
1 received $2 15 , 4 received $ 2 At Klamath Falls , siv received $2 50 : two received
$2 40 ; one received $ 2 30 : one received $2 25 : one received $2 20 : two received $2 10
six received $ 2 ; one received $ 1 90 : one received $1 80 At Redmond , three received
$2 35 and one received $2 10
CRATER LAKE MACHINERY Co. 1113
One or two more meetings were held in the latter part of October. The Union
presented a new draft contract proposal containing modifications of its original
demands but repeating some that had been in its original proposed contract and
had not been in the Respondent's draft. The Union again demanded an unmodified
union shop but agreed to a grace period of 24 hours after notice to the Respondent
of nonpayment of dues or initiation fee. Its article on wages left the effective date
and rates blank. At the end of the meeting held on October 26, Reams, the Union's
representative, was of the opinion that the parties had reached agreement on every-
thing except wages and one minor dispute as to classification. Miller testified that
no final agreement had been reached on anything. The evidence as a whole convinces
me, and I find, that the parties had agreed on a substantial number of provisions,
and were very close to agreement, if not at agreement, on the remaining provisions
with the exception of wages and the one dispute as to classification. Miller refused,
however, to change his wage offer, expressing himself as not caring whether or not
the Union rejected his offer as he preferred to continue as he had in the past without
a third party The Union agreed to present the proposal to the men and did so
at a meeting held on the night of October 26, 1959. The employees voted to accept
all provisions except the wage offer. They even agreed to the employer's classifica-
tion of the previously disputed classification of machine welders as helpers. They
also voted to carry out a mandate, previously voted, to strike on October 27.
It does not appear whether or not the Respondent was notified of the result of
this meeting before the strike began. All three shops of the Respondent struck on
October 27 and picket lines were set up.
About 10 days or 2 weeks later, because ,the strikers wished a "first-hand" account
of what happened in negotiations, Reams, Lewis, and two employees named Gott
(from Medford) and Tomlinson (from Klamath Falls) met with Miller. Reams
told Miller he thought they had everything cleared up except wages. Miller, accord-
ing to Tomlinson, replied, "No, that isn't true." Reams asked what it was that
had not been cleared up and Miller, according to Tomlinson, mentioned a man
in Bend (the only place in the record where anyone in Bend is mentioned) 3 and
said he wanted that man to be able to work with tools. Reams said there was nothing
to this, and that the Union lust wanted to be sure that the man did not do mechanic's
work on a weekend and take overtime work away from the men that were supposed
to get the work. Miller said, "Well, we don't have that straightened out yet." Reams
said he thought that Miller was making a mountain out of a molehill and suggested
bypassing that and getting down to wages. He asked if Miller had any change to
make in his wage offer and Miller said, "No." That ended the meeting. No further
bargaining sessions were held between the Respondent and the Union during the
balance of the year 1959.
Sometime in December before the filing of the charge (which was filed on
December 21, 1959), the Union requested the Federal Mediation and Conciliation
Service to try to arrange a meeting with the Respondent in an effort to solve bargain-
ing differences. LeRoy Smith, a mediator, reported to Reams that Miller had said
he saw no reason for a meeting Reams asked Smith to try again. Smith thereafter
notified Reams that a meeting had been arranged for January 5, 1960. This meet-
ing was held as scheduled. It was attended by Miller and Attorney Maxwell for the
Respondent, by Reams and Lewis for the Union, and by Smith, the mediator. Reams
testified that he offered Miller a 2- or 3-year contract if satisfactory terms could
be reached on wages. Miller was agreeable to the long-term contract but stood on
his offer of $2 starting rate for helpers and $2.75 for heavy-duty mechanics and
welders. Miller testified (and Reams denied) that the Respondent offered a 10-cent
raise to take effect in July 1960. If Miller intended to make such an offer, I find,
he did not make it clear, but in any event in view of the increase given as of January
1, I find that it is immaterial whether or not Miller made such an offer. Reams
testified that at this meeting the only disputes that remained were wages and the
right of supervisors to work with tools of the trade. Miller denied this. Lewis
testified with respect to the union-shop clause that Miller had said he did not under-
stand it, but if it was all right with Maxwell it was all right with him. Maxwell's
position was not given. I infer that he approved the language of the clause but left
it up to Miller as to whether or not the Respondent would agree to the union shop.
It is possible that final approval of the clause was not intended by the Respondent,
but Miller gave the appearance of not making a further issue of it. After the
mediator had held separate caucus sessions with the Respondent and the Union
3 Redmond is only 16 miles north of Bend, and I conclude that the Redmond shop might
sometimes be called the Bend shop
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the afternoon, he reported to Reams that further efforts that day would be
useless. No further bargaining meetings took place.
Because the conduct away from the bargaining table bears on the question of the
Respondent's good faith in bargaining, I shall defer any conclusion with reference
to bargaining until after I have related the conduct alleged to be a violation of
Section 8 (a) (1) of the Act.
B. Interference, restraint, and coercion
1. The Respondent's conduct in bypassing the Union
a. Miller's talk to the employees at Medford
About October 13, 1959, Miller visited the Medford shop. At Miller's direction
the employees were called to the lunchroom by the foreman at 1 p.m. that day and
Miller spoke to them at some length. According to Miller, the men came in groups
of three or four and one group of six or eight. He testified that he told them it
was company policy "to work out the best type of negotiations with the Union" and
the Respondent "was trying to find out from them what their desires were and so
forth so we could work it out and make it go." According to employee Alan
Bishop, Miller told them he wanted to explain his wage proposal to them himself
because he did not think a third party could do it so they could understand it. He
told them his wage offer was $2.75 for journeymen, and $2 starting rate for helpers,
with a readjustment of the beginner's rate after 30 days as worked out by agreement
between the Respondent and the new man, and with a 5-cent raise every 3 months
thereafter until the $2.75 rate was reached. John McNichols, a striking employee,
testified that Miller told them "he didn't want the third party." McNichols' memory
did not appear of the best and I would hesitate to make a specific finding that Miller
used those words, which I believe may have been taken out of context with additional
qualifying words. It is fairly evident, however, from the fact that Miller undertook
to state his offer directly to employees rather than through the Union and that he
sought to learn directly from them what their desires were, that Miller was attempting
to deal directly with the employees, thus bypassing the Union. Bishop, also a
striking employee, testified that Miller told them that he would not sign a contract
with the Union and that if he could not run the business himself he would get out.
Miller denied making either statement and I'm inclined to believe that he did not
make such statements unqualifiedly. Subsequent events indicated that Miller would
not have signed the Union's proposed contract but would have contracted on the
basis of the Respondent's proposal. The timing of Miller's visit to Medford on this
occasion indicates that it occurred after the Union had presented its proposal and
before the Respondent had presented its counterproposal. After Miller spoke,
employees asked questions about seniority and fringe benefits. That Miller may
have gone directly to the employees with his offer through ignorance of the law
does not lessen the degree of impropriety in such conduct. Bypassing an attorney
or agent to deal directly with the client or principal is frowned on in all fields of
law as unethical. So, here, it must be viewed as stepping outside the bounds of
good-faith bargaining. I find, therefore, that this conduct of the Respondent was a
violation of Section 8(a) (5) and (1) of the Act.
b. Efforts to induce return of strikers
In the first part of December 1959, Gilbert Franklin, foreman at the Klamath
Falls shop, telephoned John Pickering, a mechanic and sometimes substitute foreman,
who was on strike, told Pickering that the strikers at the Medford shop were returning
to work and asked if (or when) Pickering was coming back to work .4
During the second week of December 1959, which I deduce was about the 8th
or 9th, while the strike was still in progress , Reuben Larson, secretary and director
of the Respondent , while at the logging company where Pickering worked, took
occasion to speak with the latter. There is no evidence as to what took Larson
there. In the conversation between Larson and Pickering, "the subject of the strike
came up," according to Pickering. Larson did not testify. Pickering testified that
he told Larson he would like to return to work and "wondered" what the conditions
would be. (The evidence is not clear whether this was a volunteered statement or a
response to a question . Pickering was inclined to be vague about such details.)
4 After reading his affidavit , Pickering testified that he did not recall whether Franklin
asked him "to come back " or asked "when he was coming back ," but he knew that
Franklin had called him "regarding coming back to work "
CRATER LAKE MACHINERY CO. 1115
Larson said that Pickering should contact Miller and told Pickering that a majority of
the Medford and Redmond employees had returned to work. Pickering asked
Larson if he could give him the telephone numbers of the other Klamath Falls men
because, he testified, he did not want to go back without the others.5 On the morning
following this conversation, Larson telephoned Pickering and told him that he had
secured the list of telephone numbers for him and asked if Pickering was going down
to see Miller. Following this conversation, on a day not precisely fixed, but which
I find was about December 10, Pickering did meet with Miller at the latter's office
for about an hour. Pickering, according to his own testimony, asked Miller "the
possibilities of whether we would receive an anniversary gift (annual bonus) that
year or not; . also . .. if any of the other fellows would be welcome to come
back and under what conditions," and he and Miller discussed the general wage
conditions throughout the immediate area. When prodded, Pickering testified that
Miller "may have said" that a wage figure of $2.85 "might" be workable. Miller
told Pickering that he would decide on the anniversary gift within the next few days
(the following Monday, December 14, was mentioned) 8 and that to receive the
gift, the recipient would have to be there when the checks were passed out the same
as in the past unless the donee was sick or there was some reason why he could not
be there. Miller told Pickering that if a man was unable to wind up his work
elsewhere by the time the checks were given out but came in and told Miller that
he would be back, he would still receive his bonus. According to Miller's testimony,
Pickering and others had already decided to return when he talked to Pickering.? It
is doubtful that a final decision had been made to return, however, because the
weight of the evidence shows that the final decision by others was not made until
after December 14; I infer from this and other evidence that Pickering had spoken
with at least two of the strikers before he spoke with Miller and that Pickering knew
the terms on which those two would consider returning. The checks for the anni-
versary gift were, in fact, made out by the bookkeeper on December 14, 1959,
pursuant to a list given by Miller (at what time of day does not appear), although
the Klamath Falls checks were not signed at that time.
Between December 10 and 12,8 Pickering telephoned several of the Klamath Falls
strikers. The testimony of some of the men called by Pickering as to what Pickering
told them about his conversation with Miller justifies the inference that both Miller
and Pickering failed to give a full disclosure of what they said in their meeting, but
inasmuch as the testimony of the other men would be hearsay evidence as to what
Miller said, I base no findings on this evidence.
The General Counsel contends that Pickering was a supervisor and that what he
said to the striking mechanics should be binding on the Respondent. Pickering had
been given no title other than that of mechanic, although the men in the Klamath
Falls shop referred to him as shop foreman or assistant foreman. When Superin-
tendent (or service manager or foreman, variously so called) Franklin would be
going away from the shop he would appoint Pickering to supervise the work while
he was away if Pickering were there; otherwise he would appoint one of the other
mechanics. While acting in this capacity, Pickering would assign work, authorize
overtime work if needed, and see that the work was done properly. The evidence
did not disclose the frequency with which Pickering acted as substitute foreman.
In one instance in September 1959, Pickering required a mechanic to do a job over
because he found it unsatisfactory. When Franklin returned, Pickering reported
this fact but made no recommendation. Pickering never discharged anyone, ap-
parently made no effective recommendations for either hire or discharge, and,
5 Audie Tomlinson testified that, when Pickering telephoned him, he told him that
Larson had asked Pickering to find out from the men what they wanted (i e , on wage
rates) to come back to work, and that Pickering had done so and learned that they
wanted $2.35 an hour for helpers and $2 85 an hour for journeymen Pickering told
Tomlinson that he had gone to see Miller and told him what the men wanted. Although
Pickering was called as a witness by the General Counsel, he appeared to be a reluctant
witness However, his and Miller's accounts are the only direct ones concerning their
communications with each other I do not, therefore, base my findings of fact on the
hearsay testimony
6 The checks for the anniversary gift were in fact made out on December 14 by the
bookkeeper, to whom Miller had given a list, although the checks for the Klamath Falls
group were not signed at that time
On cross-examination by counsel for the Union, Miller testified that Pickering told him
that two others besides himself had decided to return
8 The witness, Tomlinson, testified that Pickering telephoned him on December 18 or 19,
but I conclude from all the evidence that lie was about a week off in his memory
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he has hired men, he exercised no independent judgment in such hiring-
he merely performed a ministerial act of hiring where Franklin had told him to do
so if a particular applicant came in while Franklin was away. Pickering was a
unionman, he voted at the union election, he was one of the strikers, and (although
I infer that he was not strongly union minded) he served on the picket line for a
time. His rate of pay was the same as that of other heavy-duty mechanics. Al-
though Pickering may sporadically have responsibly directed the work of others, on
the evidence as a whole, I find that Pickering was not in such a supervisorial position
as to bind the Respondent by his utterances.9
Whether or not the Respondent clothed Pickering with special authority to act
as its agent to aid in getting the strikers to return, a disputed point, will be consid-
ered hereinafter. Regardless of such authority, however, it is evident that what
Pickering said to the other men influenced their conduct and will be related in
explanation thereof. Eight men testified to their respective telephone conversations
with Pickering when he called them. Although the conversations varied some,
fundamentally they involved the same topics. Pickering told them of Larson's visit
to Pickering's place of business, of his desire to get the men back to work, of his
own visit with Miller, and a summary of what Pickering had learned in his conver-
sation with Miller. To most of the men whom he called, Pickering said that those
who were eligible for the anniversary gift would receive it if they returned by the
following Monday or received approval for a later return upon finishing work they
were then engaged in. He also told them that there would be a wage adjustment
after the first of the year. To one or two of the men he called, Pickering said that
he inferred from what Miller had said that the rate would be $2.30 or $2.35 for
helpers and $2.85 for mechanics without health benefits, that if the men were not
back by Monday, December 14, Miller intended to hire a new crew and that he had
a large stack of applications on his desk. To one or two who asked, Pickering said
that the men would return under the same conditions as when they left (this included
eligibility for the bonus and postponed a wage increase until after the first of the
year when the granting of wage increases was customarily determined) and that
these terms would not be with a contract (union contract, I assume he meant).
Because Pickering expressed his opinion to one man that a union contract would
probably be signed quicker if they returned than if they stayed out, I do not infer
that Pickering purported to quote Miller with respect to the latter's intentions with
regard to bargaining with the Union.
As a result of these telephone calls, a group of 11 or 12 strikers of the Klamath
Falls shop met at the home of one of them on December 13, 1959, to decide what
to do. This meeting was attended by Lewis, one of the union representatives, but
Pickering, who had already decided to return, was not there. During the course of
this meeting, the men decided to talk with Miller. John Detto, one of the strikers,
in the presence of the others, telephoned Miller and requested a meeting with him.
According to Detto, Miller asked if the union representative would be with the men.
Detto turned to Lewis and asked if he could be there. Lewis said he could, and
Detto then reported this to Miller. According to Detto, the only one except Miller
who was capable of testifying to what Miller said, Miller replied that he would not
meet with the union representative but would meet with the men as a group.
Because a meeting was not requested for Lewis alone, I interpret this to mean that
Miller refused to meet with the men if Lewis were with them.10 A meeting was then
scheduled by Miller for 1 p.m. the following day, Monday, December 14, 1959.
Pursuant to this arrangement, 11 of the Klamath Falls strikers met with Miller at
the Respondent's place of business at the appointed time. James Rumelhart, one of
the strikers, asked Miller if it were true, as Pickering had told them, that they would
get $2.30 and $2.85 to return to work. Miller denied having told Pickering that but,
according to Detto, said that those rates sounded fair. Detto asked whether, if they
received such raise after the first of the year, Miller would put that in a union contract.
B Wayside Press, Inc v N L R B , 206 F. 2d 862 (C A 9) ; Underwood Machinery
Company, 74 NLRB 641, 644-645
"William Weatherby, who was present, testified that when Detto finished his conversa-
tion with Miller, Detto turned to the men and told them that Miller had said he would
meet with the men or with the union repiesentative but not both together. This would
appear to be more consistent with what I find was Miller's general attitude at this date,
but Miller, himself, did not remember saying that he would not meet with them and the
union representative. This denial, of course, does not necessarily suggest that Miller had
offered to meet with them jointly. I surmise that Miller thought of a meeting at which
the union representative was present as a bargaining meeting but did not so think of a
meeting with the employees as a group without the union representative.
CRATER LAKE MACHINERY CO. 1117
Miller's reply was remembered differently by the various men. According to Tom-
linson, Detto, and Henderson, Miller's answer was a flat "no." According to Rumel-
hart, Miller replied that he would rather not commit himself on a contract. Pate
testified that Miller said he would rather not talk with them about a union contract
in this discussion. The question put to Miller which, according to three witnesses
was answered by a flat "no" was given an different terms. Tomlinson testified that
the question was, "If we get $2.30 and $2.85 after the first of the year, will you sign
a contract to that effect?" Detto testified that when Miller said $2.30 and $2.85
sounded like a fair proposition, he asked Miller if that would be with a union contract.
From all the evidence, including that of Miller, himself, who had sought legal advice
before this meeting, I conclude that Miller was seeking to avoid the appearance of
bargaining at this meeting and was attempting to be noncommittal as to the future.
Miller also was apparently assuming that, as the Respondent had always reviewed
wages after the first of the year and given raises to some, that the Respondent could
proceed as usual without waiting for an agreement with the Union and that, hence,
the raises would be given without a contract. As I view the evidence, Miller did not
say that he would not contract with the Union at all, even though he preferred not to
do so. As reported by some of the witnesses, Miller told the men that he "could not
talk to them as a group but that he would be glad to talk with them individually." 11
He told them that they were welcome to return, that their coveralls were waiting for
them, and that they would come back on the same conditions as when they went out.
According to Audie Tomlinson, one of the strikers present, one of the men asked why
Miller would not sign a contract since a majority of the employees had voted for the
Union and that Miller had replied that at one time he would have but that things had
changed Although the precise accuracy of this quotation may be open to question,
some such words as testified to by Tomlinson probably were spoken by Miller because,
in other testimony, Miller was reported to have said that the tables had turned, that
40 men had returned to work (this included Medford and Redmond), and that there
were 11 of them at this meeting, implying that the strike was broken and that they
were fighting for a lost cause. In this context, I infer that if Miller made the statement
testified to by Tomlinson, he meant that at one time during the strike he might have
signed the Union's proposed contract, but that now that the strike had been broken,
he did no have to yield and accept that contract. It appears more likely, however,
,that Miller was explaining his noncommittal attitude, for William Henderson testified:
"I tried to refresh his [Miller's] mind that he said that we'd get the union together
and we'd make a-find out what we wanted, and I said, `Now you don't even want to
talk.' At that meeting, he said, `Well, things have changed."'
On the night following this conference with Miller, the same group met at Rumel-
hart's house, and the majority decided to return to work the next day, December 16.
Most of them did so. A couple of them returned later, with approval of Miller, and
several of them stayed out on strike.
After each returned, he was interviewed by Miller in -his office. To each of them
who was eligible for an anniversary gift-the prerequisites of which were that an
employee must have completed a year in the Respondent's employ in September and
must still be working at the time the gift is made in December-Miller gave a check
for $300. This was more than in any year since the year 1956 or 1957 when there
was a used machinery sale which, in some undisclosed way, affected the amount
Those who remained on strike did not receive the $300 gift. At the time he handed
the anniversary gift checks to employees individually in his office, Miller discussed
matters affecting them. He told several of them that there would be a wage adjust-
ment after the first of the year. He did not state the amount, but he told Weatherbv
that when he got his paycheck after the first of the year he would not be sorry.12
According to Weatherby, whose testimony on this was not contradicted, Miller said
he might get into trouble for doing it '(giving a raise) but that he was going to do it
anyway. He told Frederick Kelsay that he would like to see most of the men come
back and that things would be better than before. He told Delbert Miller (appar-
ently no relation to President Miller), who returned on December 18, that there would
be a wage adjustment after the first of the year but that he wanted Delbert to know
that he was working for The Respondent and that the Respondent and not the Union
was paying him
As of January 1, 1960, the heavy-duty mechanics and welders at all shops received
a wage increase to $2.85 an hour. For most of them, this was a 35-cent raise, but
"The word "but" as here used may have been an interpolation of the witnesses based
on their inference as to what Miller meant . Miller himself testified that he said ' that his
door was open if any of them wished to discuss personal matters
'Actually , Weatherby got only a 20-cent increase , which was less than the majority
received.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some who had been receiving as little as $2.25 an hour in December were raised to
$2.85. Increases were also given to less-experienced mechanics (called helpers by
the Union) but their increases were less uniform. Some were raised from $2, $2.10,
$2.15, and $2.25 to $2.50 or $2.60; some went from $2.25, $2.30, and $2.35 to $2.85;
one went from $1.90 to $2.40; while a few received only a 20-cent raise. These
increases were reflected in the paychecks on February 1.
Miller testified that the amount of the raises was not determined until late in
January and that, when given, the raise was retroactive. Whether true and to what
extent this might be material, if true, will be discussed hereinafter.
2. Conclusions respecting independent interference, restraint, and coercion
Because most of the alleged violation of Section 8(a) (1) would constitute, if
proved, manifestations of refusal to bargain collectively, these allegations of the
complaint will be considered here before reaching final conclusions on the alleged
refusal to bargain.
The one alleged violation which would not be a direct manifestation of refusal
to bargain was the one that the Respondent raised the hourly rate of one Alan Bishop,
a member of the bargaining unit, 10 cents an hour as of September 1, 1959, and
reduced his rate on October 1, 1959, to what it had been before September 1, alleg-
edly because Bishop had engaged in concerted activities and struck with other mem-
bers of the unit. The allegation of the complaint should have been "reducing his rate
as of October 1," because the strike did not occur until October 27, and if the dis-
criminatory intent had existed, there is no proof that it existed before the period
between October 27 and 31 when the paychecks for the month of October were
prepared. The Respondent paid its employees once a month, giving them the
privilege of drawing a flat sum on the 15th of the month. Although one witness
testified that the "draw" was about 40 percent of total pay, he did not explain for
which month the 40 percent was computed or whether it was determined on average
monthly earnings. Bishop did make a much larger draw in October, but there is no
testimony that Bishop's draw was changed because of a change in rate. His draw in
September had been $130. In October it was $200. The latter was far in excess
of 40 percent of his pay even at the rate of $2.25 an hour. There is no evidence that
the $200 was drawn by Bishop all at one time. For all that appears, part of it might
have been drawn after the commencement of the strike. Bishop testified that when
he was hired on February 2, 1959 (at $2.15 an hour), he was promised a raise after
6 months. In late July or early August 1959, Bishop spoke to his shop "superin-
tendent" about it. He was not asked what the shop superintendent (if that was the
proper title) replied. Bishop heard and saw no more about a raise until he got his
October 1 check for his September pay. This check showed his rate as $2.25, which
was 10 cents an hour higher than before. Bishop accepted the check, thinking that
his raise had come through, and he said nothing to anyone about it. 'However, his
November 1 check showed his rate as $2.15. As he was out on strike, he testified,
he did not return to question the amount. Reams testified that at the negotiating
meeting on October 16, he asked Miller if he had granted Bishop'a raise in the face
of the bargaining meetings going on and that Miller had told him, that it was none of
Reams' business. Miller had no recollection of such a statement but believed it did
not take place. Lewis did not testify to such an interchange. Although I do not
question Reams' bona fides, I believe that, if Reams raised the matter of Bishop's
presumed increase in wages, Miller did not know what Reams was talking about,
and I do not find that Miller made the reply ascribed to him by Reams in reference
to a wage increase to (Bishop.
The Respondent explained the higher rate of pay for Bishop in September as a
bookkeeping error. Nora Manning, the Respondent's bookkeeper and payroll clerk,
testified that when she made out the monthly checks for September pay she used a list
of names, rates, overtime rates, usual amount of mid-month draw, and hospital
benefit deductions which had been prepared for prior payrolls. This data showed
Bishop's rate as $2.15. Manning testified that when she came to 'Bishop's name
on this list , her eye followed the wrong line and she put on the check the rate and
overtime rate of the man whose name was listed immediately above Bishop's and
then computed Bishop's own time by that rate.13 She also testified that she was not
aware of the mistake until Miller spoke to her about it a few weeks before the hear-
ing. Miller testified that he did not know of it until he received the complaint. (It
is The income tax deduction on the check would, at the total pay shown thereon, have
been the same for either Bishop or the man whose name was listed ahead of Bishop's
because each took six exemptions . Hence, nothing may be inferred from the deductions
shown on the check.
CRATER LAKE MACHINERY CO. 1119
was not mentioned in the charge.) Manning testified that when she made out the
paychecks for October at the end of that month she used the same sheet of data she
had used for making out the September paychecks but that this time she correctly
transcribed Bishop's rate as $2.15.
The General Counsel argues that the Respondent's failure to demand a refund
following discovery of the alleged mistake is evidence that no mistake was made and
that because Bishop was promised a raise 6 months after he was hired it may be
presumed that he received the promised raise. However, the failure of Bishop to
testify that, in July or August when he spoke with the shop superintendent about the
promised raise, the superintendent agreed to put the raise through nand the lack of
evidence showing that the customary procedure was followed for putting such raise
into effect-the superintendent at Medford would send a slip to the bookkeeper at
Klamath Falls noting the increase and then the bookkeeper would get Miller's ap-
proval-weakens the General Counsel' s case. The explanation of the Respondent
is not merely plausible, it is consistent with probabilities. The inference created by
the Respondent's evidence certainly is as strong if not stronger than the inference
suggested by the General Counsel that a wage increase to Bishop was intended.
Furthermore, this testimony of Miller and Manning had a ring of truth On all
the evidence, I find no discriminatory intent against Bishop.
3. Conclusions respecting alleged conduct related to refusal to bargain
a. The alleged statements by Miller that he would not bargain collectively
Of the independent 8(a) (1) violations alleged in the complaint that would also be
manifestations of refusal to bargain, if proved, the first, "telling employees that the
Respondent would not deal or contract with their bargaining representative" is
apparently based on the testimony regarding statements by Miller at the meetings of
the Respondent with groups of employees in Medford on October 13 and in Klamath
Falls on December 14. I have found that Miller's statements there were not as testi-
fied by the General Counsel's witnesses and I find, therefore, no independent vio-
lation of Section 8(a)(1) of the Act on this allegation. The second one, "telling
employees assembled in a group in the Respondent's office that Respondent would
not contract with the collective bargaining representative of the group," I have found
not to have been made as testified to by witnesses relied on by the General Counsel
to prove the allegation. The third, "telling the employees in a group that Respondent
would not negotiate with the employees as a. group but only individually and on an
individual basis," likewise was not an accurate quotation of Miller's words. He did
tell the group present that he would not negotiate with them. In this he was justified
as long as the employees were represented exclusively by the Union as their collective-
bargaining representative. Miller also said that he would talk with employees as
individuals. But I find that he did not expressly say that he would bargain with them
individually and, so far as appears, in his private talks with employees in December
1959, when he gave out the bonus checks, he did not bargain with them or settle
grievances. He did, it is true, give them hope of a wage adjustment, but he did not
attempt to settle employment terms with them. It may be that Miller should, in
promising even an indefinite wage adjustment, have explained that the increase was
subject to approval of the Union. His failure to add this in speaking with em-
ployees both in the group and individually implies a disregard of the Respondent's
duty to bargain, but this is not strictly what the complaint alleges as an independent
violation of Section 8(a)(1). It must, however, be taken into account in assessing
the Respondent's conduct under the allegation of refusal to bargain, and I shall do so.
b. Solicitation of strikers
The fourth alleged independent violation of Section 8 (a) (1) of the Act presents
more of a problem. The conduct alleged is "soliciting individual strikers to return
to work and to abandon their concerted activity by promising them improved con-
ditions if they abandoned their concerted activity and returned to work by a certain
date, and the payment of a bonus to those who returned to work by a certain date and
the refusal to pay a similar bonus to those who engaged in concerted activity and
would not abandon their strike activity." The allegation of solicitation is based
(1) on Franklin's telephone call to Pickering in early December notifying him that a
number of the men in the Medford shop had gone back to work and asking Pickering
(of the Klamath Falls shop) if or when he was coming back, and (2) on the Re-
spondent's alleged solicitation of strikers through Pickering. The first item in-
volves a solicitation which, if taken in isolation, could be said not to demonstrate that
the Respondent sought to bargain individually or to undermine the Union as bargain-
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative . 14 However , because of the timing of Franklin 's solicitation in
relation to the Respondent 's subsequent activities , including Larson's conversation
and later telephone call to Pickering in which conversations Larson suggested that
Pickering should meet with Miller, I find that Franklin 's solicitation must be regarded
as part of the Respondent 's planned course of conduct.
I have found that Pickering was not a supervisor within the meaning of the Act.
If, therefore , the Respondent is bound by Pickering 's statements , it is bound because
Pickering was acting as the Respondent 's agent for the purpose of soliciting strikers.
Proof of such agency depends more upon inferences to be drawn from the evidence
than upon direct testimony , because the truth of what occurred was known only to
three men-Larson, Miller, and Pickering . Larson did not testify . Miller was an
adverse witness who could not be induced to make a full revelation , and Pickering,
upon whose testimony the General Counsel principally relied to prove that Pickering
was acting as an agent , was a reluctant witness who appeared to be willing to testify
freely only to what the General Counsel could prove directly by other evidence.
However, such evidence as was adduced creates a strong inference that the Respond-
ent prevailed upon Pickering to do its soliciting for it. Although the Respondent
made no commitments to employees directly concerning the size of bonuses or the
wage increases , it gave reasonable assurance through Pickering of a bonus to the
strikers who returned the following week and intimated both to Pickering and to
the group of 11 strikers that, after the first of the year , a wage adjustment would
be given . When Miller spoke with Pickering privately , he gave Pickering good
reason to believe that he was willing to go up a step above that last wage offer he had
made to the Union and settle on rates of $2.30 and $2.85. By telling the group of
11 strikers on December 14 that those rates sounded fair, Miller gave the strikers the
same impression . Miller's private meeting with Pickering followed shortly upon
Franklin's telephone solicitation of Pickering to return to work , upon Larson' s visit
and telephone call to Pickering in which Larson suggested and prompted Pickering's
visit with Miller, and upon Larson 's furnishing of Pickering with a list of the Klamath
Falls strikers and their telephone numbers so that Pickering could ascertain upon
what terms the others would return . Whether or not Pickering was a supervisor,
therefore, I conclude from all the evidence that the Respondent intended to authorize
Pickering to act for it and that it is responsible for his representations to striking
employees concerning the probable benefits they would receive if they returned to
work ,the following week and abandoned the strike . Since this conduct was calculated
to undermine the Union , I find that the Respondent thereby violated Section 8 (a) (1)
and (5 ) thereby.15
c. The granting of the bonus to those strikers, alone, who returned by a certain date
The General Counsel in his brief argues that the withholding of the bonus from
strikers while granting it to those who returned was discriminatory. That there was
discrimination is .true. But the issue here is whether or not this discrimination was
illegally motivated with a view to discouraging membership in a labor organization.
The Respondent contended that those who remained on strike failed to bring them-
selves within the prerequisites which qualified employees for the bonus. As given by
Miller, those employees who (1) had completed a full year's employment on Sep-
tember 1 of the year in which ,the bonus is given and (2) are still working when the
bonus checks are given out are eligible to receive the aniversary gift. It is in the
interpretation of the second requirement that the opportunity for illegal discrimination
arises. If that requirement means merely that the employee must still have em-
ployee status and not have been discharged, laid off, nor have quit between Sep-
,tember 1 and the date when the bonus is paid, then the economic strikers, still
having employee status, would, if in the Respondent's employ for at least 1 year by
September 1, 1959, he qualified for the bonus. If the second requirement means that
the employee must be physically in the plant and working in order to qualify, then
the strikers would be in no better position than employees who were on vacation,
were off sick, or were off for some other personal reason . From Miller's testimony,
however, it appears that employees who are thus off temporarily would not be
excluded, and this test was applied to strikers who returned in December but did
14 Webb Wheel Division, American Steel 4 Pump Corp , 121 NLRB 1410
le N L.R B. v. Wooster Division of Borg-Warner Corporation , 236 F 2d 898 (C A 6),
enfg on this point 113 NLRB 1288; Trinity Valley Iron and Steel Company , a Division
of C. C. Griffin Manufacturing Company, Inc., 127 NLRB 417; White's Uvalde Mines,
117 NLRB 1128 , 1140 ; Marlboro Electronic Parts Corp , 127 NLRB 122; American
Rubber Products Corp , 106 NLRB 73, 77-T8.
CRATER LAKE MACHINERY CO. 1121
not return by December 14. The checks purportedly were ready on December 14
(at least for the Medford and Redmond shops, and instructions for preparation of
the checks for the Klamath Falls shop were, on that day, given, if, in tact, they were
not prepared on that date), yet the men who returned to work on December 16 and
thereafter to December 29 (presumably on assurance given that they would return
by those dates), received their bonus checks. On the other hand, those who did not,
in December, indicate an intent to abandon the strike were not given bonus checks
even though they had been employed for a year or more by September 1, 1959. One
striker, John McNichols, of the Medford shop, who had 3 years' employment before
September 1959, who joined the strike in October 1959, and had not returned before
the end of December, telephoned Miller in January 1960 to ask if he was entitled
to receive the bonus. Miller told him that he was not entitled to it in his opinion
because McNichols had not returned. McNichols asked if the Union (I infer that
he meant his union membership or activity) "had anything to do with" his not re-
ceiving the bonus. McNichols quoted Miller (without contradiction) as replying,
"Not necessarily." McNichols asked if he would receive the bonus if he forgot about
the Union and came back. Miller told McNichols that the Respondent was "all
filled up," meaning, I infer, that'there were no job vacancies.ie
On all the evidence I am impelled to the conclusion that the Respondent used the
promise of the bonus to strikers who returned by a given date to break the solidarity
of the Union's ranks, thus interfering with restraining and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act. The payment of the
bonus to returning strikers only and the withholding of it from strikers who did not
return or offer to return by a given date was a discrimination which would be a
violation of Section 8(a) (3) of the Act.17 However, as the complaint alleged this
to be a violation only of Section 8(a) (1) of the Act, I limit my conclusion and find
that the discriminatory payment of the bonus violated only the latter subsection of
the Act.
d. Conclusions regarding the unilateral wage increase
It is the General Counsel's position that the January 1960 wage increase was
decided on, and given on, January 1, before the last bargaining meeting. It is the
Respondent's position that the raise was not decided on until late in January and
that then it was made retroactive. From the facts hereinabove recited, it may be
inferred that, if Miller had not yet fully decided on the amount of the increase for
each man by the end of December 1959, he had a pretty good idea that the Respond-
ent would pay heavy-duty mechanics,and welders $2.85 an hour. Miller intimated
as much in his conversation with Pickering in the second week of December, as he
did likewise in his meeting with the 11 strikers on December 14, 1959. He testified
that, before the final decision on the amount was made, he knew that the new rate
would be somewhere between $2.70 and $2.95. I am convinced that Miller knew
the probable amount within closer limits, say $2.80 to $2.95, because he must have
realized that the men would not return on the basis of his offer of $2.75 an hour,
since the strike was primarily for a higher wage rate than $2.75 and the strike
commenced after the Respondent's offer of $2.75 was made and was, in effect,
rejected. Furthermore, Miller had learned from Pickering that the strikers wanted
no less than $2.85 to induce them to quit the strike. Miller testified that he attended
a meeting of caterpillar distributors from his area in mid-January 1960 and that
he learned the wage rates paid by others and that, until he returned from this
meeting, he did not finally decide the amount of the increase which the Respondent
would give. In the light of all the evidence, I infer that what Miller had to decide
was whether or not the Respondent should pay more than $2.85 to keep in line
with its competitors. But this would indicate merely that the Respondent, having
already decided to pay $2.85 top rate, could, until the very day when the January
paychecks were to be made out, have revised that figure upward in order to be
close to the rates paid by competitors if it learned during the month of January
that $2.85 would be below the range of rates paid by those competitors.
1e The Respondent did hire two new men in December and five in January, but there is
no evidence as to the date of these hirings in January , or whether they preceded or
followed McNichols' telephone call. The complaint does not allege that the denial of
employment to McNichols was a violation of the Act, nor does it allege that the Re-
spondent 's unfair labor practices prolonged the strike and thus converted the economic
strike into an unfair labor practice strike and thus eliminate the privilege of permanently
replacing strikers.
17 Pittsburgh -Des Moines Steel Company, 124 NLRB 855.
599198-62-vol 131-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent points to the fact that it was merely following its customary
practice of reviewing and granting wage increases after the first of the year. It
does not appear that the Respondent wasin the habit of giving general wage increases
nor such sizable increases, however. With whatever impunity an employer may
follow his customary practice of granting wage increases during a union organizing
campaign, he is obliged to forgo unilateral changes in wages and working conditions
after a union becomes the exclusive representative of his employees for the purpose
of collective bargaining.I$
The Respondent contends, in effect, that an impasse was reached on January 5
and points to the fact that thereafter the Union sought no further meeting. This,
the Respondent argues, made it unnecessary to make an offer of the wage rate
increases before putting them into effect. The mere fact that the Union did not
request a further meeting does not mean that the Union ceased to be the certified
bargaining agent of the Respondent's employees in the appropriate unit or that
the Union had no further desire to reach an agreement. The Union had filed a
charge and was awaiting the outcome of the proceedings before the Board. So
far from indicating an abandonment by the Union of its collective-bargaining
rights, the filing of the charge by the Union shows a disposition to continue to assert
those rights. Even if an impasse had, in good-faith bargaining, been reached in
this case, such impasse might well have been broken by notification to the Union
that the Respondent would increase its wage offer to the amount to which the
Respondent, in fact, increased wages unilaterally. I conclude, therefore, that the
Respondent, by unilaterally granting a general increase in wage rates in January
1960, violated Section 8(a) (1) and (5) of the Act.19
C. Conclusions respecting refusal to bargain
Although the Respondent's good faith in bargaining may be said to be questionable
from early October 1959, when Miller went directly to the employees with his wage
proposal, thus bypassing the Union, the Respondent thereafter, in offering a counter-
proposal to the Union, and in attempting, with the aid of its attorney to reach an
agreement, did, for a time, engage in apparent good-faith bargaining. However,
by its subsequent conduct of soliciting strikers to abandon the strike through holding
out assurance of receipt of the bonus only if the strikers returned by a certain date
and through holding out prospects of a wage increase, as well as by its failure to
offer the Union on January 5, 1960, the rates which it subsequently, without noti-
fication to the Union, put into effect, retroactively to January 1, 1960, the Respondent
demonstrated bad faith. In the light of such conduct, designed to undermine the
Union, the Respondent's adamant stand on its original wage offer at the January 5,
1960, meeting at a time when the Respondent was contemplating a unilateral increase
in wages to rates higher than the rates it had offered the Union makes it evident
that the Respondent was consciously seeking to cause an impasse. The tangible
evidence of the unilateral increase appeared in the paychecks of the employees on
February 1, the very next paychecks (except for the mid-month draw which never
disclosed the employees' wage rates) following -the last bargaining session. Whethei
this increase was decided upon before or after the last bargaining meeting is im-
material. The fact that it was never offered to the Union is evidence of the
Respondent's desire and attempt to avoid its statutory duty to bargain with the
Union. Upon the foregoing facts, and from all the evidence in the case, I conclude
and find that Respondent on January 5, 1960, as well as in December 1959, refused
to bargain in good faith with the Union as contemplated by the Act, thereby violating
Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. At the time when the Respond-
18 N L R B. v Crompton-Highland Mills, Inc, 337 U.S 217, 223-224
19 N L R.B. v. Crompton-Highland Mills, Inc, supra
LEW CHEVROLET COMPANY 1123
ent gave out checks for the anniversary gift, the striking employees had not been
replaced and they still had employee status . But for the Respondent's unlawful
discrimination , all the strikers who had been employed by the Respondent for at
least 1 year by September 1, 1959, would have been qualified to receive, and should
have received , the anniversary gift. Whether or not the Respondent 's discrimina-
tion between those induced by the Respondent to abandon the strike and those not
so induced be found to be a violation of Section 8(a)(3) and ( 1) of the Act or
only of Section 8 (a) (1), the remedy must be the same. In order to eliminate the
effect of such unlawful discrimination , therefore, I shall recommend that the
Respondent pay to each of its employees who remained on strike after the date
when the checks for the anniversary gift were distributed and who had been in the
Respondent 's employ for at least 1 year by September 1, 1959, the sum of $300
(the amount of the anniversary gift paid to each employee in the unit who abandoned
the strike).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. All mechanics , welders, and helpers employed by the Respondent, excluding
sales and office personnel , partsmen, guards, supervisors , and professional employees
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act.
4. The Union is, and at all times material hereto has been , the exclusive repre-
sentative of the employees in the unit described in paragraph 3, above, for the
purposes of bargaining concerning wages, hours, and other conditions of employ-
ment within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain ( in good faith ) with the Union , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, as herein found, the Respondent has
engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Lew Chevrolet Company and International Association of Ma-
chinists Lodge No. 622. Case No. 19-CA-2002. June 12, 1961
DECISION AND ORDER
On February 14, 1961, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain alleged unfair labor prac-
tices and recommending that the complaint herein be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. The
General Counsel filed exceptions to the Intermediate Report and a
supporting brief. Thereafter, Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
131 NLRB No. 141.