Hensley Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1958

121 N.L.R.B. 556 (N.L.R.B. 1958)

556 DECISIONS OF NATIO11TA1 LABOR RELATIONS BOARD
employees ' rights, nor therefore an unfair labor practice within the meaning of
Section 8 (b) (1) (A)'
For the foregoing reasons, the Trial Examiner concludes that the evidence does
not disclose the violations of Section 8 (b) (1) (A) and (2 ) of the Act which are
alleged in the amended complaint He will therefore recommend that the amended
complaint be dismissed in its entirety
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following
CONCLUSIONS OF LAW
1 Charles S Wood and Co is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act
2 Local 715, United Brotherhood of Carpenters and Millwrights , AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act
3 The aforesaid labor organization has not engaged in unfair labor practices
within the meaning of the Act.
[Recommendations omitted from publication ]
7Medford Building and Construction Trades Counmi, et al (Kogap Lumber Industries),
96 NLRB 165, 166, and cases therein cited
Hensley Equipment Company, Inc. and Hensley Metal Treating
Company, Inc. and Operating Engineers Local Union No. 3 of
International Union of Operating Engineers , AFL-CIO. Case
No 20-CA-1238 August 15,1958
DECISION AND ORDER
On July 9, 1957, Trial Examiner Howard Myers issued his Inter-
mediate Report in this proceeding finding that the Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The' rulings so made are hereby affirmed The Board has considered
the Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Tiial Examiner with the modification herein-
after set forth I
The Trial Examiner found that the Respondents refused to bargain
collectively with the Union, in violation of Section 8 (a) (5) and (1)_
of the Act We agree, but for the following reasons and not for the
reasons advanced by the Trial Examiner On October 11, 1956, the
Union, as the statutory representative of all the Respondents' parts
i The Respondents also requested oral argument In our opinion the record and the
exceptions and briefs fully present the issues and the positions of the parties Accord-
ingly, the request for oral argument is hereby denied
121 NLRB No 72
HENSLEY EQUIPMENT COMPANY, INC. 557
and service department employees, had asked the Respondents to
bargain collectively. The Respondents' reply was to go through the
'surface motions of granting the Union's request, while at the same
time effectively refusing to fulfill their statutory obligation and at-
tempting instead to undermine the Union and destroy its majority.
Thus, as set forth in the Intermediate Report, they forthwith em-
barked on an antiunion campaign including unlawful interrogation
of employees and applicants, and discriminatory layoffs; they threat-
ened employees with loss of a Christmas bonus and a share in the
profits; and they changed certain working conditions and withdrew
from the employees certain privileges previously enjoyed, unilaterally
and without consulting the Union. This conduct of the Respondents,
in our opinion, clearly establishes their bad faith in dealing with the
Union, :within the meaning of Section 8 (d) of the Act, and therefore
violates Section 8 (a) (5) and (1) of the Act?
ORDER
Upon the entire record in this proceeding and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, Hensley
Equipment Company, Inc., and Hensley Metal Treating Company,
Inc., shall :
1. Cease and desist from :
(a) Changing their employees', working conditions without prior
consultation, negotiations, or discussion with the Union.
(b) Threatening their employees with reprisals 'if they become or
remain members of the Union, threatening their employees with
discharge if they refuse to cross the picket line which the Union
established at Respondents' plant, interrogating their employees and
applicants for employment regarding their union affiliations and sym-
pathies in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(c) Discouraging membership in the Union, by discriminatorily
laying off or discharging any employee or by discriminatorily refus-
ing to reinstate any of their employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment.
(d) Refusing to bargain collectively with Operating Engineers
Local Union No. 3 of International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of all their parts and serv-
ice department employees, excluding Hensley's sons, office and clerical
employees, salesmen, guards, and supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
2 See Pant Milling Company, 117 NLRB 1277.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form labor organizations, to join or assist Operating Engineers Local
Union No. 3 of 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 mutual aid or protection as guaranteed
in Section 7 of the Act, and to refrain from any and 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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Arthur Atkinson, Kenneth Owens, and Thurman
Fortner immediate and full reinstatement to their former jobs with-
out prejudice to any rights and privileges previously enjoyed.
(b) Make whole Arthur Atkinson, Kenneth Owens, and Thurman
Fortner for any loss of pay they may have suffered by reason of
Respondents' discrimination against them in the manner set forth
in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the amount
of back pay due and their right of reinstatement under the terms
herein.
(d) Upon request, bargain collectively with Operating Engineers
Local Union No. 3 of International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of all the employees in
the above-described unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and
embody any agreement reached in a signed contract.
(e)' Post at their plant in San Leandro, California, copies of the
notice attached hereto marked "Appendix." Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by Respondents' representatives, be
posted for sixty (60), consecutive days thereafter in conspicuous
places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Twentieth Region in
writing, within' ten (10) days from the date of this Decision and
Order, what steps have been taken to comply herewith.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
HENSLEY EQUIPMENT COMPANY, INC.
APPENDIX
NOTICE TO ALL EMPLOYEES
559
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:
WE WILL offer immediate and full reinstatement to Arthur
Atkinson, Kenneth Owens, and Thurman Fortner without preju-
dice to any rights and privileges previously enjoyed, and will
make them whole for any loss of pay suffered as a result of the
discrimination against them.
WE WILL bargain collectively upon request with Operating
Engineers Local Union No. 3 of International Union of Operat-
ing Engineers, AFL-CIO, as the exclusive collective-bargaining
representative of the employees in the appropriate unit described
below, and if any understanding is reached, embody such under-
standing in a signed agreement. The appropriate collective-
bargaining unit is :
All our parts and service department employees, excluding
Hensley's sons, office and clerical employees, salesmen, guards,
and supervisors as defined in the Act.
WE WILL NOT discourage membership in the above-named Union
by discriminating in any manner in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT change our employees' working conditions with-
out prior consultation, negotiation, or discussion with the Union.
WE WILL NOT threaten our employees with reprisals if they
become or remain members of the Union, or if they refuse to cross
the picket line established by the Union at our plant, nor will we
interrogate our employees or applicants for employment regard-
ing their union affiliations ,and sympathies in a manner constitut-
ing interference, restraint, or coercion in violation of Section 8 (a)
(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist Operating
Engineers Local Union No. 3 of 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 other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of the
above-named Union or any other labor organization except to the
extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
WE WILL NOT discriminate against any employee in regard to
hire or tenure of employment or any term or condition of employ-
ment because of membership in, or activity on behalf of, any
such labor organization.
HENSLEY EQUIPMENT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
HENSLEY METAL TREATING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (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
Upon an amended charge duly filed on December 3, 1956 , by Operating Engi-
neers, Local Union No. 3 of International Union of Operating Engineers , AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel 1 and the Board , by the then Acting
Regional Director for the Twentieth Region ( San Francisco, California ), issued
his complaint , dated December 28, 1956 , against Hensley Equipment Company, Inc.,
herein called Equipment Company , and Hensley Metal Treating Company, Inc.,
herein called Treating Company ( conjointly the two named companies are herein
called Respondents ), alleging that Respondents had engaged in and were engaging in
unfair labor practices affecting commerce , within the meaning of Section ' 8 (a) (1),
(3), and ( 5) of the National Labor Relations Act, as amended, 61 Stat . 136, herein
called the Act.
Copies of the amended charge , complaint , and notice of hearing thereon, were
duly served upon each respondent and upon the Union.
Specifically, the complaint alleged that Respondents ( 1) since on or about Octo-
ber 13, 1956, have failed and refused to bargain collectively with the Union although
the Union since on or about October 11 , 1956, has been the duly designated col-
lective-bargaining representative of Respondents ' employees in a certain appropriate
unit ; ( 2) on certain stated dates in October and November 1956 (a) interrogated
and questioned their employees as to said employees' membership in and activities
on behalf of the Union , ( b) threatened and warned their employees that working
conditions would be more strict and less favorable since they had selected and desig-
nated the Union as their collective -bargaining representative, (c) without prior
consultation with the Union , the duly designated collective -bargaining representa-
tive of their employees , unilaterally changed the employees ' working conditions;
and (3 ) by various other stated acts and conduct interfered with , restrained, and
coerced their employees in the rights guaranteed in Section 7 of the Act; and (4) on
or about October 15, 1956, laid off Arthur Atkinson , Thurman Fortner , and Ken-
I This term specifically includes counsel for the General Counsel appearing at the
hearing.
HENSLEY EQUIPMENT COMPANY, INC. 561
neth Owens , and since that date , have refused to reinstate said employees because
Hof their activities on behalf of the Union.
On January 4, 1957, Respondents filed a joint answer denying the commission
of the unfair labor practices alleged.
Pursuant to due notice a hearing was held in San Francisco , California, from
March 25 through 28, 1957, before the duly designated Trial Examiner . The Gen-
eral Counsel and Respondents were represented by counsel and all parties were
afforded full opportunity to be heard , to examine and cross-examine witnesses, to
introduce evidence pertinent to the issues, to argue orally at the conclusion of the
taking of the evidence , and to file briefs on or before April 12, 1957. Briefs have
been received from the General Counsel and from counsel for Respondents which
have been carefully considered.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENTS' BUSINESS OPERATIONS
Hensley Equipment Company, Inc., and Hensley Metal Treating Company, Inc.,
are California corporations with their principal offices and places of business in
San Leandro , California . The Equipment Company is engaged in the processing
and sale of tractor parts and equipment . The Treating Company is engaged in
heat treating the metal parts of tractors.
During 1955 the Equipment Company 's out-of-State sales amounted to $336 ,277.04.
Clyde Hensley and his wife Bertha own 70 percent of the capital stock of the
Equipment Company and the balance thereof is owned by their two teen-age sons.
The entire capital stock of Treating Company is owned by Clyde and Bertha Hensley.
Clyde Hensley is president of each respondent and determines their labor and all
other policies ; Bertha Hensley is vice president of each respondent and she and Clyde
Hensley are members of the board of directors of each respondent ; Gene Rhodes,
Clyde Hensley's personal attorney , is the secretary-treasurer of the Equipment Com-
pany and Alfred Sefton holds the same position with the Treating Company.
Respondents use a common office , their respective shops are located on the same
premises but are 75 feet apart ; 80 percent of the work performed by the Treating
Company is on the Equipment Company's tractor parts ; and the Respondents' em-
ployees are interchanged ; and said employees ' working conditions are similar.
Upon the above undisputed facts, the Trial Examiner finds that the relationship
between the two corporations referred to is such , and the officials thereof have so
acted , as to constitute Respondents an "employer " of the employees herein involved
within the meaning of that term as used in Section 2 (2) of the Act. The Trial
Examiner further finds that during all times material herein Respondents have en-
gaged in and are now engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act for the Board to assert jurisdiction in the
proceeding.
II. THE ORGANIZATION INVOLVED
Operating Engineers Local Union No. 3 of International Union of Operating
Engineers , AFL-CIO, is a labor organization admitting to membership Respondents'
employees.
III. THE UNFAIR LABOR PRACTICES
A. Respondents' refusal to bargain with the Union
1. The appropriate unit
The complaint alleged that all Respondents' parts and service department em-
ployees, excluding Ronald and Ruston Hensley, sons of Clyde and Bertha Hensley,
office and clerical employees, salesmen, guards, and all supervisors as defined in the
Act, constitute a unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act. In their answer Respondents neither denied nor admitted
that the unit alleged was appropriate but merely averred that the unit question "has
not as yet been officially determined" and that the Board should process the repre-
sentation petition which the Equipment Company filed with the Board on October 23.
1956.2 Said petition (20-RM-214), which was dismissed presumably because of
2 Unless otherwise noted all dates refer to 1956.
487926-59-vol 121-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the pendency of the instant proceeding, was filed by the Equipment Company on the
very day Respondents received copies of the original charge in this matter. The
petition requested an election among "all employees in the parts and service de-
partments" of the Equipment Company exclusive of "office employees, and plant
protection employees and supervisors as defined in the LMRA."
The record discloses, and the Trial Examiner finds, that: (1) 80 percent of the
business of the Treating Company is for the account of the Equipment Company;
(2) Hensley 3 owns all the capital stock of the Treating Company; (3) Hensley, his
wife, and their two teen-age sons own all the capital stock of the Equipment Com-
pany; (4) Hensley is president of each respondent and his wife vice president of
each; (5) Hensley determines and dictates the labor relations and overall business
operation policies of each respondent; (6) Respondents occupy the same premises
and make common use of certain services and facilities; (7) the services of the
Equipment Company employees are used by the Treating Company and vice versa;
(8) the employees of each respondent are under the direct supervision of Hensley
and Plant Superintendent Patrick Godbey; (8) in or about March 1956 and on
October 11, 1956, Hensley assembled the employees of each respondent in a group
and announced that a vote would be taken to ascertain whether or not said em-
ployees desired the Union to be their collective-bargaining representative; (9) the
employees' working conditions are substantially the same; and (10) on October 12,
1956, Hensley discussed and agreed to enter into a collective-bargaining contract
with the Union covering the very employees whom the General Counsel alleged
constitute an appropriate unit.
Upon the entire record in the case, the Trial Examiner finds that all Respondents'
parts and service department employees, excluding Hensley's sons, office and clerical
employees, salesmen, guards, and supervisors as defined by the Act, at all times
material herein, constituted, and now constitute, a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act, with respect
to grievances, labor disputes, rates of pay, wages, hours of employment, and other
conditions of employment .4 The Trial Examiner further finds that said unit insures
to said employees the full benefit of their right to self-organization, to collective
bargaining, and otherwise effectuates the purposes of the Act.
2. The Union's majority status in the appropriate unit
At the hearing, there was introduced in evidence by the General Counsel two lists
prepared by Respondents containing the names of all employees in the unit herein-
above found appropriate. The lists show that on October 10, Respondents had in
their employ seven persons in said unit. On behalf of the General Counsel there
were offered and received in evidence five signed cards expressly authorizing the
Union to represent the signers thereof for the purposes of collective bargaining.
The genuineness of the signatures appearing upon said cards was not questioned nor
challenged.
The Trial Examiner has compared the names appearing upon said cards with the
lists submitted by Respondents and received in evidence and finds that as of Oc-
tober 11, five employees in the appropriate unit had signed cards expressly designating
the Union as their collective-bargaining representative.
On October 11, a ballot, more fully described below, was taken at the plant among
the employees in the appropriate unit and of the 6 persons who cast ballots 5 voted
for the Union and 1 against. The Trial Examiner accordingly finds that as of
October 11, and at all times thereafter, the Union was the duly designated collective-
bargaining representative of Respondents' employees in the unit found appropriate.
Pursuant to Section 9 (a) of the Act, the Union was, therefore, on October 11,
and at all times thereafter, the exclusive representative of all the employees in said
unit for the purposes of collective bargaining with respect to grievances, rates of
pay, wages, hours of employment, and other conditions of employment.
sFor the sake of brevity, Clyde Hensley will hereinafter be referred to as Hensley
• See Hirsch Broadcasting Co, 116 NLRB 1780; Pacific Fine Arts, 116 NLRB 1607;
The Transport Company of Texas and Transport Company, Inc., 111 NLRB 884; Wake-
field's Deep Sea Trawlers, Inc., and Wakefield Fisheries, Inc., 112 NLRB 1357; Technical
Tape Corporation, 111 NLRB 845; Metco Plating Company, 110 NLRB 615; Sanitary
Mattress Company, etc, 109 NLRB 1010
HENSLEY EQUIPMENT COMPANY, INC. 563
3. The refusal to bargain
(a) The pertinent facts
In about March,5 Alton Clem and Bill Barr, business representatives of the Union,
called at Respondents' plant and requested Hensley to enter into a collective-bargain-
ing contract covering Respondents' employees. When Hensley declined to do so, the
Union's representatives suggested that Hensley inform the employees that he had no
objection to their joining a union. At the noon hour, Hensley assembled the em-
ployees, introduced Clem and Barr, and then stated to the employees, to quote from
Clem's credited testimony, "He thought it was a free country and [the employees]
could join the union if they wanted to."
Before Clem and Barr left the plant, Hensley again informed them that he would,
not enter into any agreement "at that time."
At about 9 a. in. on October 11, Clem telephoned Hensley and, after stating that
he was desirous of discussing a contract covering Respondents' employees, arranged
to meet at Hensley's office at 11 o'clock that morning.
Between the time of the above-mentioned telephone call and Clem's arrival at the
plant, Hensley and Plant Superintendent Patrick Godbey went into the plant and,
according to the undenied and credible testimony of six employees 6 at work that
day, interrogated each regarding his affiliation with, or sympathies for, the Union.
According to Walton's testimony, Hensley and Godbey came to his machine that
morning and Hensley asked him if he had signed a union card and that he replied,
"Yes, some time ago." Employee Arthur Atkinson testified that during the morning
of October 11, Hensley came into the plant where he, Godbey, Milton Speegle, and
Floyd Hensley were and that the following ensued:
Clyde Hensley came in and stated to Pat (Godbey) that they were going
to have to do something with the union, they [the Union] had called up and
said that everybody had signed, he [Hensley] asked. . . Floyd and Milt
[Speegle] if they had signed up [with] the Union, and they said no. Then he
asked me and I told him yes. . . . Pat and Clyde then left.
Owens testified that about mid-morning of October 11, Hensley and Godbey came
into the metal treating shop and Hensley asked him, in Paul Atkinson's presence,7
if he "had signed anything for the Union"; that he replied in the negative; that
Hensley then asked, "Then we can count on your vote against the Union?"; and that
when he replied in the affirmative, Hensley said, "I feel you are all right." Paul
Atkinson testified that in Godbey's and Owens' presence Hensley asked him, on the
morning of October 11, whether he and Owens had "signed up" with the Union; that
5 Certain evidence was adduced at the hearing relative to events occurring more than
6 months prior to the filing of the original charge herein and the service of a copy thereof
upon Respondents . Said evidence was received , not as a basis for any finding of unfair
labor practices as such , but solely for such effect it might have in elucidating , evaluating,
and explaining the character and quality of Respondents ' alleged illegal conduct after
the cutoff date It is now well settled that Section 10 (b) of the Act allows considera-
tion of related acts transpiring prior to the statutory limitation date for the purpose of
throwing light on the specific conduct within the period in issue N. L . R B v. Fredrica
Clausen, d/b/a Luzerne Hide Tallow, 188 F . 2d 439 ( C A 3) ; Superior Engraving
Company v N. L R B , 183 F 2d 783 (C A 7) ; N. L. R. B. v General Shoe Corporation,
192 F. 2d 504 (C. A. 6) ; N L R B v White Construction and Engineering Co, Inc,
204 F. 2d 950 (C. A. 5) ; N. L. R. B v. Ozark Dam Constructors , etc., 203 F. 2d 139
(C A. 8) ; Banner Die Fixture Company, 109 NLRB 1401 ; Florida Telephone Corporation,
88 NLRB 1429 ; Sun Oil Co , 89 NLRB 833 It is also well settled that in order to prove
Respondents had engaged in unfair labor practices it must be shown that the acts and
conduct relied upon occurred within the 6-month period or extended into said period.
Joanna Cotton Mills Co v N. L. R. B., 176 F. 2d 749 ( C. A. 4) , Stewart Warner Corp v.
N L R. B., 194 F. 2d 207 ( C. A. 4) ; Superior Engraving Co v. N. L. R. B., supra;
Universal Oil Products Company, 108 NLRB 68.
Namely, Milton Speegle, Cleo Walton , Kenneth Owens , Thurman Owens , Paul Atkinson,
and Arthur Atkinson The other employee , Floyd Hensley, Clyde's brother , did not testify.
9 Paul and Arthur Atkinson are brothers For the sake of brevity Arthur Atkinson will
hereinafter be referred to as Atkinson
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when they replied in the negative, Hensley remarked, "Well, that's two votes then";
and that Hensley then asked "Can I count on your votes?," to which question he
affirmatively replied. Fortner testified that when Hensley asked him on the morning
of October 11, whether he had "signed up for the Operating Engineers" he replied
in the affirmative whereupon Hensley retorted, "Well, that makes three." Speegle
testified that when either Hensley or Godbey asked him on the morning of October
11, in Floyd Hensley's and Atkinson's presence, whether he intended to vote for the
Union at the impending balloting he replied in the negative.
According to Godbey's undenied and credited testimony, Hensley remarked to him
at the conclusion of the above-mentioned interviews that he "was fairly certain that"
the employees "would go along with" Respondents.
At about 11 o'clock on the morning of October 11, Clem and Harold Huston, an-
other union business representative, met with Hensley and Godbey at the plant.
There, according to Huston's testimony, the following transpired:
Mr. Clem told Mr. Hensley that we represented the majority of the em-
ployees in production and maintenance and was out to negotiate a contract.
And Mr. Hensley stated that he didn't think that we did, and he said how did
we know we did. Mr. Clem told Mr. Hensley that we had authorization cards
on the majority of the men in the plant, and Mr. Hensley said, "Could I see the
cards?" And Mr. Clem said, "Sure." And he handed Mr. Hensley the cards,
which he examined each one carefully. And then Mr. Hensley stated that the
cards, some of them had various dates on it, and he was wondering why it was
like that. And Al explained to him that some of the men had signed at one_
particular time and some later.
Mr. Hensley then stated that he was not satisfied in his mind that we had the
majority, and he asked us if we had any objection for him going out with us
and conducting an election .
Al Clem said, at the time he had no objections, and so then we proceeded to
go out to the plant, Mr. Godbey, Mr. Hensley, Mr. Clem and myself. So when
we got out to the plant Mr. Hensley called the employees together . . . Al asked
[Hensley] how many he had working there, and he said there was seven men
which was covered in the unit. And he said that one person, his brother
[Floyd], wasn't there that day, and he . asked us if it would be all right
with us to go on with the election without him being present, which we agreed
to.. .
... And after the men was called together, Mr. Hensley told the men that
we was there representing Operating Engineers Local Union No. 3 and that
they was going to conduct an election and see if the men wanted the union
or no union. . . We asked Mr. Hensley who he wanted to represent the com-
pany, and he said Pat Godbey, so Mr. Godbey and myself prepared the bal-
lots . . . and marked the ballots "Operating Engineers" on one side and "No
Union" on the other side. . . . I told [the employees that] they would pass
into the room 8 one at a time and mark the ballot and would come out and
fold it, put the ballot in the hat which Mr. Godbey was holding . . and so
after the ballots were prepared by Mr. Godbey and myself . they went
in [the room singly] and voted, then folded their ballots half a dozen times,
really folded them tight, and they came out and placed them in the hat which
Mr. Godbey was holding . . . after they had all voted Mr. Godbey took the
hat and we all gathered around Mr. Godbey, and we could see every ballot .. .
Mr. Hensley was right at the right of me, Mr. Godbey was right between
us . . . and every ballot that was counted was called off by Mr. Pat Godbey.
if it was for Operating Engineers he would say so. If it was for no Union
he would say so and would pass it around and everybody would look at it, and
every ballot that was cast was looked at; everybody 9 look at it thoroughly.
And after [the ballots had been counted] Mr. Godbey said, "Five for the Op-
erating Engineers and one for No Union."
So then Mr. Clyde Hensley stated, "Well, I guess that's that . . . We will
negotiate a contract," and then Mr. Clem and myself started to walk back
around the side of the building there and Clyde Hensley was coming around
the side there too, and Mr. Hensley asked when we wanted to get together
with him, and we stated then that it was up to him; whenever it was convenient
for him, ... "Well," he said, "I will call my lawyer in Centerville and see
when we can get an appointment." So it was then that he made the appointment
for the following morning.
s This room is located in the shop near where the men were assembled
e Including the six persons who voted, Hensley, and Clem.
HENSLEY EQUIPMENT COMPANY, INC. 565
Regarding this meeting with Clem and Huston on October 11, Hensley testified
that when he stated to the Union 's representatives that he did not believe the
Union represented a majority of Respondents ' employees , Clem threw a contract
on his desk ; that, as he "started to thumb through " the contract , Clem remarked,
"No use for you to read it , you're going to have to sign it anyway "; that because
of Clem 's remark he "got a little bit hostile "; that Clem, after saying, "You get
tough with me, I have a picket waiting up here on the corner ," started to leave;
that Clem changed his mind about leaving and instead apologized "for getting
so boisterous and noisy "; that Clem then suggested that an election be held among
the employees to ascertain whether , in fact , the Union represented them , to which
suggestion he agreed ; that Godbey and Huston "worked out some method of cast-
ing ballots by tearing up some scraps of paper they picked out of a wastebasket";
that he intentionally remained at least 15 feet away, and at times was 75 feet away,
from where the balloting was taking place; that to "my best recollection the boys
marked the ballots over on the blade rack or over along the side of the build-
ing . . . in other words, there wasn't any specified place to mark the ballots";
that during "the counting of the ballots, I would say I was about 15 feet to the left
of where the hat or container that they were using"; that he did not see "a single
marking on any of the ballots"; that after the ballots had been counted he heard
"someone say it was five to one for the union "; that then "Mr. Clem and Mr.
Huston and I walked down the side of the building, and [Clem] says, `Well, when
are we going to get together and work out a contract?"'; that he replied, "Well,
these things are absolutely unfamiliar with me . I know nothing of labor practice at
all, so I would like to call my lawyer"; that he thereupon called Gene Rhodes, Re-
spondents ' attorney ; and that at the conclusion of said telephone call he arranged
with Clem and Huston to meet them the following morning, October 12 , and proceed
to Rhodes ' offices.
It would serve no useful purpose to set forth here at length the testimony of
Clem, Godbey , and that of the employees who testified regarding the October 11
balloting, for their testimony , in the main, which is credited , is substantially in
accord with that of Huston.
In the light of the Trial Examiner's observation of the conduct and deportment
at the hearing of Hensley , Clem, Huston , and Godbey , and after a very careful
scrutiny of the entire record, all of which has been carefuly read, and parts of
which have been reread and rechecked several times , and being fully mindful
of the contentions of the parties with respect to the importance which each has
placed upon the credibility problems here involved , of the fact that in many in-
stances testimony was given about events which took place many months prior
to the opening of the hearing , and of the fact that very strong feelings have been
generated by the circumstances in this case , the Trial Examiner is unwilling to,
and therefore does not, give probative value to those portions of Hensley 's testimony
which are contradicted or explained and which are not corroborated by objective
circumstances or by the testimony of credible witnesses . Everything considered,
including the fact that Clem's, Huston's, and Godbey's testimony regarding the
circumstances surrounding the balloting on October 11 is, in the main, substan-
tially corroborated by the testimony of the various employees who testified about
that event , coupled with the fact that much of the antiunion statements and conduct
attributed to Hensley by various credible witnesses remains uncontradicted, the
Trial Examiner finds that the testimony of Clem , Huston, and Godbey regarding
the balloting at the plant on October 11, to be substantially in accord with the facts.io
The Trial Examiner further finds that Huston 's version of the October 11 con-
ference in Hensley 's private office is substantially in accord with the facts.
According to Godbey 's undenied and credited testimony , Hensley remarked
to him , after Clem and Huston had left the plant on October 11, "We haven't
gone union yet. We don 't have a contract yet. . . . If I can keep from it, we will
never have a union."
At the meeting held in Rhodes ' private office on October 12, which was attended
by Hensley , Rhodes,il Clem, and Huston , the parties discussed at great length,
10 This is not to say that at times Clem, Huston , and Godbey were not confused on cer-
tain matters or that there were not variations in their objectivity and convincingness.
But it should be noted that the candor with which each of them admitted , during long
and searching examinations , that they could not he certain as to dates or the exact words
used , only serves to add credence to what a careful study of their testimony shows that
they honestly believed to be the facts . On the other hand , the unreliability of Hensley's
testimony is clearly illustrated by the studiousness with which Hensley attempted to
conform his testimony to what he considered to be to Respondents ' best interest.
11From time to time Rhodes left the meeting to attend to other matters.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph by paragraph, the Union's proposed bargaining agreement. Hensley,
after some of the provisions of the proposed contract had been deleted or amended'
to conform to Respondents' type of business and after the union representatives
had agreed to Hensley's request that his two teen-age sons, who were employed
on a part-time basis,12 be not covered by the contract and certain contract provisions
demanded by Hensley be included therein, Hensley announced, to quote from
Huston's credible testimony, "He felt that it was a fair contract and he had a contract
he could live with." 13
Upon the record as a whole, the Trial Examiner is convinced, and finds, that
Hensley agreed to all the terms and conditions of the Union's proposed contract,
with the accepted changes, modifications, and deletions, and that the meeting con-
cluded with the understanding that the Union would submit a typed copy of the
agreed-upon contract to Hensley the following day, together with a letter relative
to the exclusion of Hensley's two sons from the terms of the contract.
Godbey testified without contradiction, and the Trial Examiner finds, that when
Hensley returned to the plant from the above-described conference in Rhodes' office,
he remarked to him, in words or substance, that the contract proposed by the
Union was "pretty good" but he would not sign it because of its union-shop
provision.
The following day, October 13, Huston went to the plant and handed Hensley a
typed copy of the agreed-upon contract, together with a letter reading in part as
follows:
It is the understanding of the Union that no section in this Agreement shall be
construed to prevent yourself, or your sons, performing temporary work covered
by the various classifications in this Agreement. "Temporary work" is,. as we
discussed it, any work replacing a regular employee, or depriving a regular
employee of any overtime.
Also, it is distinctly understood that all employees performing work coming
within the classification set forth in the agreement shall, as a condition of
employment, become members of the Union upon the thirty-first (31) day of
employment.
Huston credibly testified that, after explaining to Hensley the nature of the papers
he had just handed him, he and Hensley discussed each provision of the contract
and then discussed the letter; that when they had concluded their discussion, Hensley
remarked, "That looks good to me. I'd appreciate it if you could wait until Mr.
Rhodes gets back. . . He is down at Los Angeles or somewheres down south, and
he will be back Wednesday or Thursday, and we will sign the agreement then"; 14
and that Hensley inquired if the Union "would have any objections to the salesmen
joining the union" to which he replied, "None whatsoever."
On or about October 16, Hensley telephoned Clem and requested him to come
to the plant. Clem, accompanied by Barr, arrived at the plant shortly after the
aforesaid telephone conversation. There, Hensley introduced the union representa-
tives to Sterling Bond, a labor relations consultant. Regarding what transpired
at that conference, Clem credibly testified as follows:
Q. Now, tell us what you did when you got there?
A. . . . Mr. Bond said, "We would like to discuss this agreement with you."
12 The older son, Ruston, normally worked on the drill press and as furnace helper.
The younger, Ronald, ran errands, washed the window, swept the floors, and did other
similar jobs.
13 Huston testified that at the opening of the meeting, Rhodes stated that he and
Hensley "had gone through the contract and they felt that it was a very fair contract "
While not specifically denying the above-quoted testimony of Huston, Rhodes testified
that at the conclusion of the conference he remarked, "As I understand it now, you gentle-
men (meaning Clem and Huston) are going to prepare a contract which you believe
would apply to Mr Hensley's situation . . . and that this contract, then, will be sub-
mitted to Mr. Hensley and then we will talk further about it at that time " Rhodes
further testified :
Q. At any time during , or toward the end of this conference did you make any
remarks to . . . that "That's a pretty good contract," or any similar remark?
A. I certainly think that I did not. I think that that impression probably came
from my saying , in response to a statement by Mr. Clem, that this wasn' t too bad a
contract. I recall that I said perhaps it's not ; what might worry Mr. Hensley would
be what would happen when re-negotiations for the second year started
14 Huston 's testimony regarding this incident is corroborated , in the main, by Godbey's
credible testimony.
HENSLEY EQUIPMENT COMPANY, INC . 567
And I said to Mr. Bond, "Our position is that the agreement has already
been agreed to and should have been signed. It was only waiting for Mr. Hen-
sley's lawyer who wanted to go over the technical details of it, to return from
Los Angeles," and Mr. Bond said, "Well, we think there should be an election."
I told him "We wasn't interested in an election at this time, that Mr. Hensley
had laid off three of our members in the meantime . . . and consequently .
it wasn't of interest in no way to talk about an election." He said, "That's
what it will have to be."
Q. All right. Continue with the conversation.
A. We went out ... we went to walk out to the yard. I told him ... [Barr]
I guess the only remedy for this is a picket and we will talk to the people first.
We started out to the shop and Mr. Hensley objected to us talking to his em-
ployees. And he said to Bond, "Can I get my gun?" And Bond said, "Yes.
Go get it."
So we walked out to the gate. There was a truck coming in the gate, and
I told the truckdriver, "It looks like we are going to have a little trouble around
here, men picketing up here pretty soon." He drove down the road and we
got in the car and went back to the office.
Clem credibly further testified that a few days after the meeting referred to imme-
diately above, he telephoned Rhodes who declined to discuss the matter claiming
he was no longer in the picture.
On October 23 the Equipment Company filed a representation petition which was
dismissed presumably because of the pendency of the charge of violation of 8 (a) (5)
of the Act.
Since on or about October 27, the Union has maintained a picket line at Respond-
ents' plant.
On October 15 Respondents laid off Thurman Fortner, Kenneth Owens, and
Arthur Atkinson.15 Shortly thereafter, Respondents assigned their 2 outside sales-
men to the work normally performed by the 3 named persons. Godbey credibly
testified that the layoffs and the reassignment of the salesmen were for the sole pur-
pose of destroying the Union's majority because he and Hensley had assumed, after
discussing the matter, that Fortner, Owens, and Atkinson, since they were junior in
terms of employment with Respondents, had, no doubt, voted for the Union at the
October 11 balloting.
The undenied and credible testimony further discloses that: (1) Almost imme-
diately after the results of the October 11 balloting had been announced and after
Hensley had arranged with Respondents' counsel to confer the next day with him,
Clem, and Huston to negotiate a contract, Respondents, as fully discussed below
under another section, unilaterally, and without prior consultation with the Union,
the employees' designated collective-bargaining representative, changed certain
working conditions of the employees and withdrew certain of their privileges; (2)
on October 11, Godbey stated to Arthur Atkinson that Respondents were "working
on a profit-sharing plan" but if the Union successfully organized the plant Respond-
ents would not put it into effect nor would the employees receive a Christmas bonus
like they did in 1955; and (3) Godbey and Hensley made numerous and sundry
other statements to individual employees in an effort to have said employees re-
nounce the Union as their bargaining representative.
(b) Concluding findings
The right of employees under Section 7 of the Act "to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing . . . land] to refrain from any or all such activities" is effectively implemented
by Section 8 (a) (1) and (5). These provisions forbid an employer to "interfere
with, restrain, or coerce employees in the rights guaranteed in Section 7," and likewise
prohibit an employer from refusing to recognize or bargain collectively with the
majority representative of his employees in the appropriate unit. The employer's
economic hold over his employees, which inheres in their relationship, is thereby
neutralized in matters of organization and representation, which are particularly
the concern of the employees. Interdiction against employer intrusion in such
matters is essential if employees are to be free from the coercive influence of their
employer, for employees are, as the courts have repeatedly and uniformly held, not
insensitive to the advantages in their employment that they consider are likely to
"These layoffs are fully discussed before under another section.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flow from their employer, nor to the disadvantages which may attend their choice
of representative opposed by their employer. And for the same reason, employees
cannot be expected to derive the full benefit from their protected right of self-organi-
zation and to the selection of a representative of their own choosing if they believe,
"from circumstances which their employer created or for which he was fairly re-
sponsible," 16 that their representative, however chosen, is subject to the employer's
approval or disapproval.
Uncontroverted credible evidence establishes that as of October 11, the Union, in
fact, had been selected and designated by a majority of the employees in the appro-
priate unit as their collective-bargaining representative. The fact that Respondents
knew of the Union's majority status is not open to dispute for, not only did Clem on
that day show Hensley cards specifically designating the Union the collective-bar-
gaining representative signed by 5 of the 7 persons in the appropriate unit but the
results of the balloting conducted by Respondents and the Union the same day dis-
closed that the Union had been chosen by 5 of the 6 participants therein. Under
those circumstances, Respondents were under a statutory duty to recognize the Union
as the exclusive representative of the employees in the appropriate unit and to deal
with it as such representative. However, the credited evidence, most of which is
uncontroverted, discloses that instead of fulfilling their obligations under the Act,
Respondents engaged in serious unfair labor practices designed to destroy the Union's
majority status and thus thwart the employees' self-organizational and collective-
bargaining activities. For example: (1) threatening the employees with loss of a
Christmas bonus and a share in Respondents' profits if they chose the Union as their
bargaining representative-, (2) laying off three employees and assigning the outside
salesmen to their jobs for the purpose of destroying the Union's representative status;
and (3) unilaterally, and without prior consultation with designated collective-bar-
gaining representative, changing the employees' working conditions and withholding
from them certain privileges. This conduct, in the opinion of the Trial Examiner,
was adroitly and strategically timed to impress upon the employees that continued
adherence to the Union was a fruitless gesture, would bring them naught, and that
they could rely on their employers' unilateral generosity to attain their needs.17
At the hearing and in their brief, Respondents contended that they refused to
recognize and bargain 18 collectively with the Union because they doubted the Union's
status and based this doubt solely on the fact, to quote from Respondents' brief,
"Respondents were not shown the ballots cast Con October 111 by the employees,
but was merely informed by the Union agents that a majority had voted for the
Union; that both before and after the `election,' the president of Respondents was
informed by his employees that they were not in favor of the Union."
The credible evidence, however, establishes that on October 11, when Clem
requested Hensley' to recognize and deal with the Union, the Union was, in fact,
the duly designated bargaining representative of the employees in the appropriate
unit. Any conceivable doubt in Hensley's mind as to the Union's majority status
should have been completely dissipated after being informed of the results of the
October 11 balloting, when all but 1 of the 6 participating employees voted for the
Union. Yet, not even then did Hensley relax his fixed determination not to bargain
with the Union.
Respondents' conduct and activities following the Union's initial demand for
recognition reveal Respondents'. want of good faith. The fact that Respondents,
upon being advised that the majority of the employees in the appropriate unit had
selected and designated the Union as their bargaining representative, embarked upon
a campaign to destroy employee support for the Union through means proscribed by
the Act, clearly demonstrates that their refusal to bargain and their request for an
election was not predicated on a good-faith doubt of majority but on a desire to gain
time and to take action to dissipate the Union's majority status. The stratagem of
avoiding collective bargaining by means of unfair labor practices deliberately con-
19 N. L R B v Link-Belt Company, 311 U. S 584, 588
17 See Cold Spring Granite Company. 101 NLRB 786; Paramount Textile Machinery Co ,
97 NLRB 691 ; N. L. R B v. Crown Can Company, 138 F 2d 263 (C 'A 8) ; May Depart-
ment Stores v. N. L R. B , 326 U. ,S 376, N L R B v. Mt. Clemens Pottery Company,
147 F 2d 262 (C. A 6) ; F W Woolworth Company v. N. L R. B., 121 F. 2d 658
(C A 2) ; Southern Colorado Power Company v N. L R R , 111 F. 2d 539 (C. A. 10)
N. L. R B. v. Wytheville Knitting Mills, 175 F 2d 238 (C A 3).
Is Respondents' contention at the hearing that the October 12 meeting in Rhodes'
offices was not a bargaining conference is without merit ,
HENSLEY EQUIPMENT COMPANY, INC. 569
trived to preclude the necessity for such bargaining has been uniformly condemned
by the courts.19
The foregoing also disposes of Respondents' claim that they were entitled to await
the outcome of the representation proceeding initiated by the Equipment Company.
Normally, the Board does not hold an employer in violation of the Act if he in
good faith questions the union's claim of majority status, and asks to have the matter
determined by a secret election, since that is a conclusive means of establishing the
extent of a union's strength. But here Respondents, upon learning of the Union's
majority status, resorted to serious unfair labor practices, the effect of which would
have prevented the election from resolving the very issue of which Respondents
allegedly were in doubt. Respondents thereby destroyed the efficacy of the very
method they had insisted upon by their refusal to recognize and deal with the
Union. Respondents' conduct on and after October 11 thus clearly supports a
finding that their demand for an election was, in fact, a rejection of the principles of
collective bargaining. Respondents thereby transgressed the bounds of permissible
conduct to a sufficient extent to warrant a finding that their refusal to bargain was as
ill intentioned as their other actions 2u
The courts, furthermore, have uniformly held that where, as here, an employer
withholds recognition from a union which is entitled to it under the Act until its
status is established by an election, and at the same time proceeds to undermine
and destroy the union, it may be reasonably concluded that the employer's refusal
to bargain stems not from an honest doubt of the union's status but rather from a
desire to avoid his obligations under the Act 21
Respondents' further contention that their refusal to bargain did not violate the
Act since they merely exercised their right to demand an election is without merit
under the circumstances herein disclosed. It is well settled that neither an employer
nor his employees have a right to demand an election for Congress left to the Board
the discretion to determine how and when the bargaining status of an employee
representative should be ascertained.22 In N. L. R. B. v. Samuel J. Kobritz d/b/a
Star Beef Company, 193 F. 2d 8, the First Circuit said regarding a case very similar
to the instant proceeding:
. the right of employees to bargain collectively through an exclusive bar-
gaining representative is not conditioned upon an antecedent certification by the
Board where, as here, the majority status of the union is clearly established
otherwise, and the employer has no bona fide doubt of such majority status,
but seeks to delay bargaining negotiations while resorting to various coercive
1e N. L R. B v Somerset Shoe Company, 111 F. 2d 681 (C A. 1) ; N. L. R. B. v.
Crystal Sprang Finishing Company, 116 F. 2d 669 (C. A. 1) ; N. L R B. V. Reed & Prince
Manufacturing Company, 118 F. 2d 874 (C. A. 1) ; N L. R. B v. Remington Rand, Inc.,
94 F. 2d 862 (C. A. 2) ; N. L. R B. v. Poultrymen's Service Corporation, 138 F. 2d 204
(C. A. 3) ; N. L. R B. v. Harris-Woodson, 162 F. 2d 97 (C. A. 4) ; The Solvay Process
Company v. N. L. R. B., 117 F 2d 83 (C A. 5) ; N. L R. B v Crown Can Company,
138 F. 2d 263 (C. A. 8) ; N. L. R B v. Morris P. Kirk & Son, Inc, 151 F. 2d 490
(C. A. 9) ; Joy Silk Mills, Inc. v. N L R. B., 185 F. 2d 732 (C A, D. C).
21 Ray Brooks v. N. L. R. B., 348 U. S. 96; N. L. R B v. Southeastern Rubber Mfg. Co.,
Inc., 213 F. 2d 11 (C A. 5) ; Joy Silk Mills, Inc. v. N L. R B, supra; Franks Bros.
Company v. N. L. R. B., 321 U. S. 702; N. L. R B. v. Louisville Refinery Co., 102 F. 2d
678 (C. A. 6) ; Dahlstrom Metallic Door Company v. N. L R. B., 112 F. 2d 756 (C A. 2) ;
The Solvay Process Company v. N. L R. B, 117 F. 2d 83 (C. A 5) ; N. L. R B. v.
Federbush Company, Inc, 121 F. 2d 954 (C A 2) ; N. L. R. B. v Inter-City Advertising
Co, etc., 190 F. 2d 420 (C. A. 4) , N. L. R. B v W. T. Grant Company, 199 F. 2d 711
(C. A 9) ; Motorola, Inc v. N L R. B, 199 F. 2d 82 (C. A 9) ; N. L R B v. Everett
Van Kleeck and Company, Inc, 189 F. 2d 516 (C A 2) ; N. L. R B v Samuel J. Kobritz,
d/b/a Star Beef Company, 193 F 2d 8 (C. A. 1) ; N. L R. B v. Poultry Enterprises, Inc.,
207 F 2d 522 (C A 5).
n Ibid ; see also N. L. R B. v Trimfit of California, Inc., 211 F. 2d 206 (C A 9) ;
N. L. R B. v Parma Water Lifter Co, 211 F 2d 258 (C A 9) ; N. L R B. v Morris P.
Kirk & Son. Inc, supra; N L R. B v Geigy Company, Inc., 211 F 2d 533 (C A. 9).
22 N. L R. B v. Falk Corporation, 308 U S 453; N. L R. B. v Waterman Steamship
Corporation, 309 U. S 206; Southern Steamship Company v N. L R B , 316 U. S 31 ;
International Association of Machinists , etc v. N. L R. B., 311 U. S 72; Franks Bros.
Company v . N. L R B., supra: N. L R B. v. National Seal Corporation , 127 F. 2d 776
(C. A. 2) ; N. L R. B. v. Jacob Garfunkel and Hyman Garfunkel, d/b/a Surprise Candy
Co., 158 F. 2d 981 (C A. 2).
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tactics designed to dissipate the union majority support. N. L. R. B. V. Reed &
Prince Mfg. Co., supra [118 F. 2d 874 (C. A. 1), cert. denied 313 U. S.
595]; N. L. R. B. V. National Seal Corp., 2 Cir., 127 F. 2d 776; N. L. R. B. v.
Franks Bros. Co., 1 Cir., 137 F. 2d 989, affirmed 321 U. S. 702 . . . ; N. L. R. B.
v. Harris-Woodson Co., 4 Cir., 162 F. 2d 97.23
Respondents' lack of good faith in their dealings with the Union is further evi-
denced by Hensley's remarks to Godbey on October 12, to the effect that he would
not sign the contract which he had agreed to that morning in Rhodes' office because
he did not "want a union shop." It is thus evident that Hensley was giving, as the
court said about the employer in N. L. R. B. v. Athens Manufacturing Company,
161 F. 2d 8 (C. A. 5), the Union "a run around while purporting to meet with the
Union for the purposes of collective bargaining."
Despite the fact that the credible evidence leads to the inescapable conclusion that
on October 12, in Rhodes' office, Respondents and the Union agreed upon the terms
of a collective-bargaining contract and that all that remained before the actual
execution of the agreement was the typing thereof and the production of a letter by
the union agreeing to exclude Hensley's two sons from the terms of the contract,
Respondents now claim that under no circumstances could they lawfully sign such
an agreement because (1) no union-shop election had been conducted by the Board
as provided for in the Act; and (2) the terms and conditions as expressed in "Para-
graphs III (d) and VII (a) of the contract, and to the last paragraph of the
clarifying letter dated October 12, 1956, addressed to Respondents by Clem" exceed
the bounds permitted by the proviso to Section 8 (a) (3) of the Act.
As to (1) : this contention is without substance or merit for counsel obviously
overlooked the fact that Congress, on October 22, 1952, amended the Act eliminating
the requirement of a Board-conducted union-shop authorization election.
As to (2) : Section III of the contract states:
In the hiring of Employees covered by this Agreement, and providing com-
petency, efficiency, skill and ability are equal (of which Employer shall be the
sole judge), preference shall be given by Employer:
(a) To Employer's former employees.
(b) To persons formerly engaged in work similar to that for which job
openings are available.
(c) If a shortage of workmen exists and they cannot be obtained as pro-
vided in paragraphs (a) and (b) above, the Union agrees to assist and cooperate
with Employer in the employment of workmen who may be satisfactory to
Employer.
(d) It is agreed that before a person is put to work he shall secure a referral
from the employment office of the Union.
Section VII (a) of the contract provides:
No person, other than a workman employed pursuant to Section III hereof
shall work with the tools of the trade or at the trade.
The last paragraph of the Union's letter of October 12, reads as follows:
Also, it is distinctly understood that all employees performing work coming
within the classifications set forth in the agreement shall, as a condition of
employment, become members of the Union upon the thirty-first (31st) day
of employment.
Respondents' contention, raised at the hearing and in their brief, that if they
had signed the proffered contract containing the section III (d) referral clause they
would have violated the Act because said clause was per se improper is neither
supported by the facts nor by the law.
Clem testified without contradiction, and the Trial Examiner finds, that the
Union maintains a hiring hall where as many as 90 persons per day are dispatched
to jobs on a nondiscriminatory basis; that union members and nonunion members
are dispatched on the basis of ability and not on the basis of membership in the
Union; that the Union desired the inclusion of the referral solely for the purpose
of recording the names of the persons hired by Respondents from sources other
21 See also N. L. R. B. v. Bradford Dyeing Association, 310 U. S. 318; International
Association of Machinists, etc. v. N. L. R. B., supra; D. H. Holmes Company v. N. L. R. B.,
179 F. 2d 870 (C. A. 5).
HENSLEY EQUIPMENT COMPANY, INC. 571
than the Union's hiring hall; and that Respondents were free to hire any person
they desired.
In addition , there is no evidence in the record, nor was the claim made, that
the Union charged a fee for a referral slip; that the Union ever denied a referral
slip to any person because he was not a union member.
It seems quite clear, and the Trial Examiner finds, that the sole reason for the
referral clause was to enable the Union to ascertain when a new employee had
worked at least 30 days for Respondents thereby. making him obligated, since that
contract contained a union-shop clause, to seek membership in the Union. That
being so, coupled with the surrounding facts, as epitomized above, the law is quite
clear that the mere execution of a contract containing such a clause did not render
the contract per se violative of the Act.
In Eichleay Corporation v. N. L. R. B., 206 F. 2d 799, 803, the Court of Appeals
for the Third Circuit stated the principle as follows:
We agree with Eichleay that "The factor in a hiring-hall arrangement which
makes the device an unfair labor practice is the agreement to hire only union
members referred to the employer." Del E. Webb Construction Co. v. N. L.
R. B., 8 Cir., 1952, 196 F. 2d 841, 845. A referral system is not per se im-
proper, absent evidence that the union unlawfully discriminated in supplying
the company with personnel. N. L. R. B. v. Swinerton, 9 Cir., 1953, 202 F. 2d
511; Hunkin-Conkey Construction Co., 95 N. L. R. B. 433 (1951).
In the Swinerton case, supra, at page 514, the Court of Appeals for the Ninth
Circuit said:
An employer violates § 8 (a) (3) and (1) of the Act if he requires member-
ship in a labor organization as a condition precedent to employment. N. L.
R. B. v. Cantrall, 9 Cir., 1953, 201 F. 2d 853. The Board has contended that
adoption of a system of union referral or clearance also violates the Act absent
"guarantee that the union does not discriminate against non-members in the
issuance of referrals." We do not believe National Union of Marine Cooks
and Stewards, 90 NLRB 1099 supports this view. Although it was there noted
that the provisions of an applicable labor contract prohibited such discrimina-
tion, the Board did not indicate that a referral system was per se improper ab-
sent a "guarantee" of non-discrimination. Such a rule would in practical effect
shift the burden of proof on the question of discrimination from the General
Counsel of the Board to the respondent. The rule which we deem proper was
recognized by the Board in Hunkin-Conkey Const. Co., 95 N. L. R. B. 433
;(1951), where it was said that an agreement that hiring of employees be done
only through a particular union's office does not violate the Act "absent evi-
dence that the union unlawfully discriminated in supplying the company with
personnel." 95 N. L. R. B. at 435; Cf. Del E. Webb Const. Co. v. N. L. R. B.,
8 Cir., 1952, 196 F. 2d 841, 845. [Emphasis supplied.]
The doctrine of the above cases has been cited with approval by the Court of
Appeals for the Sixth Circuit in N. L. R. B. v. F. H. McGraw and Company, 206
F. 2d 635.
The Trial Examiner finds, upon the entire record in the case, that Respondents'
refusal to sign the contract agreed upon at the October 12 conference in Rhodes'
office was bottomed on their desire to forestall the organizational activities of their
employees. By such refusal Respondents violated Section 8 (a) (5) of the Act; 24
and that by such failure and refusal Respondents have interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act.
8' H. J. Heinz Company v. N. L. R. B., 311 U. S. 514, 526, wherein the Court said :
A business man who entered into negotiations with another for an agreement hav-
ing numerous provisions, with the reservation that he would not reduce it to writing
or sign it, could hardly be thought to have bargained in good faith. This is even
more so in the case of an employer who, by his refusal to honor, with his signature,
the agreement which he has made with a labor organization, discredits the organiza-
tion, impairs the bargaining process and tends to frustrate the aim of the statute to
secure industrial peace through collective bargaining
Petitioner's refusal to sign was a refusal to bargain collectively and an unfair
labor practice defined by 1 8 (5).
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The discriminatory layoffs of Arthur Atkinson, Kenneth Owens, and
Thurman Fortner
(a) The pertinent facts
At the end of the shift on Monday, October 15, the first workday after Huston
had delivered to Hensley the completed agreed-upon bargaining contract, Re-
spondents handed Atkinson and Fortner each a check for 1 day's pay 25 together
with a note reading as follows:
Due to the seasonal aspect of our business here at Hensley Equipment Com-
pany, Inc. each fall and winter it becomes necessary for us to decrease our
help in the fall and winter months and increase our help in the spring and
summer months. Since you are one of the last personnel hired, we are forced
to lay you off effective as of 10/15/56.26
In support of the contention that the three named persons were laid off because
of decline in business and not for the reasons alleged in the complaint, Hensley
testified that: (1)_ it was the policy and practice of Respondents, in laying off
personnel, to select those persons most recently hired; (2) Atkinson, Fortner, and
Owens were junior in employment to all other employees; (3) reduction in force
is determined by amount of sales and not by the amount of raw material on hand;
(4) on or about October 2, because the amount of merchandise shipped during
September "had dropped about 50 percent," he informed Godbey to lay off the
"three newest people and notify them on the 15th that they are terminated"; and
at the time he had decided to lay off the men here involved he had not "received
any information indicating that they,were agitating for a union, or were pro-union."
In addition to Hensley's testimony, Respondents introduced in evidence certain
charts and figures showing (1) the termination of certain persons for the period
1952-56, and (2) amount of monthly sales, both in weight and in dollar value, for
1955 and 1956.
Godbey testified, and the Trial Examiner finds, that: On October 15, Atkinson,
Fortner, and Owens were selected for termination solely because he and Hensley
had assumed that they, being the last three hired, voted for the Union at the
October 11 balloting; on October 15 it was determined by him and Hensley, in
order to dissipate the Union's known majority status, to terminate the 3 named
persons and to assign the 2 outside salesmen to plant work; and after Atkinson,
Fortner, and Owens had been laid off the two outside salesmen were, in fact,
assigned to plant work; there was sufficient work on hand on October 15, and for
some time thereafter, to warrant the retention of a full working crew; on October
15, Respondents "had on order steel to work the crew during the winter months
making stock"; 27 after the October 15 layoffs Louis Castro was hired 28 and
Respondents also hired a person on a part-time basis; and during the approximately
14 months he acted as plant superintendent no man, except for the elimination of
a night crew, was laid off for lack of work.
Godbey further credibly testified, "The end of the month was usually our biggest
shipping week"; that the October, November, and December shipments 29 were
materially reduced due to the reduction of force on October 15 and because the
truckers refused to cross the Union's picket line, established on or about October
zs The workweek ended on Friday
a, Owens was ill on October 15, and did not report for work However, that evening he
received a telegram advising him that he was laid off for the same reason given Atkinson
and Fortner The following day Owens went to the plant and Godbey handed him two
checks ; one for the previous week's pay and the other for Monday's pay
21 The credited evidence discloses that when the employees were not occupied filling
orders they worked on material for the stock pile.
21 Castro was hired on or about October 30 as a drill press operator, a job normally
performed by Fortner When Castro was hired he was informed by Godbey that the job
"was a steady job as long as I wanted it and as long as I didn't go union. If I wanted
a union it wouldn't be it." During the 2 or 3 days Castro was in Respondents' employ
he asked Speegle if Respondents needed additional help for he had a friend who "would
like a job " Speegle referred him to Hensley. When Castro took the matter up with
Hensley, the latter said, "If your buddy wants a job here he can come to work here
You can get in touch with him" adding, "as long as he don't go union, well, he's got a
job [here], but we don't want no boy that wants union. If he wants union, don't
bring him."
29 Godbey quit Respondents' employ about December 16.
HENSLEY EQUIPMENT COMPANY, INC. 573
27, to pick up the merchandise; and because of said picket line the receipt of
merchandise was likewise materially reduced.
Employee Cleo Walton testified, and the Trial Examiner finds, that: prior to the
October 11 balloting, Godbey agreed to allow him to go on vacation the last 2
weeks in October; after the said balloting he was informed by Speegle that he could
not take his scheduled vacation because Respondents "couldn't do without" him;
when he asked Hensley, "What's the reason that I can't get off at least a week . .
Hensley replied, "Well, I think it can be fixed. We'll check and let you know";
and the day following his talk with Hensley, Godbey granted him permission to
take the last week in October off.
(b) Concluding findings
This case presents the comparatively rare situation where the recitation of the
facts leading up to the layoffs vividly reveals their discriminatory character.30 Imme-
diately upon being requested by Clem to discuss a collective-bargaining contract,
Hensley interrogated, the employees regarding their affiliation and sympathies for
the Union and thereafter manifested an uncompromising hostility to the Union and
sought by threats and other unlawful means to destroy the Union's representative
status.
The very sequence of events surrounding the layoffs renders immediately susp;.ct
Respondents' proffered explanations in justification of their conduct. Thus, in the
face of the convincing evidence that the layoffs were plainly attributable to Respond-
ents' animosity to the Union and to the complainants' union membership,
Respondents urge that the true reason for the layoffs was because business was
slack. The credible evidence of Godbey establishes, however, that the one and only
reason for the layoffs was Hensley's desire to thwart the Union's representative
status and thus rid' the plant of all union activity.
Not only is Hensley's testimony that the layoffs were brought about because of
decline in business successfully refuted by the credible testimony of Godbey,
Speegle, and others who testified that at the time of the layoffs there were sufficient
orders on hand to keep a full crew busy, but the documentary evidence introduced
in evidence by Respondents affirmatively discloses that despite the decline in ship-
ments in September and October 1956, Respondents' shipments far exceeded those
for the same months in 1955, during which period they had at least seven persons
employed. In addition, Speegle's uncontroverted testimony, which the, Trial
Examiner credits, reveals that: at all times during the approximately 4 years of his
employment with Respondents, which he voluntarily terminated about mid-November
1956, Respondents' stockpile was low; the employees worked building up the
stockpile whenever they were not employed filling orders; and at all times from
the day of the balloting, referred to above, until he left Respondents' employ,
Respondents were behind in filling orders on hand.31
Respondents laid great stress upon the decline in shipments to justify the October
15 layoffs. Respondents, however, did not attempt to substantiate their position
with records of orders placed with the plant, or with data as to their profit-loss
position. Regarding such neglect, the Third Circuit noted in similar circumstances
in N. L. R. B. v. Wallick, 198 F. 2d 477, 483,
This evidence was vital and it was clearly within respondents' power to pro-
duce it. The Board would have been warranted in drawing an inference that
such evidence, if adduced, would not have been favorable to respondents. See
2 Wigmore on Evidence § 285.
Assuming, arguendo, that Respondents' economic situation in October 1956, was
such that it would justify layoffs, the Trial Examiner is not persuaded that business
reasons motivated the layoffs on October 15. Upon the entire record in the case,
the Trial Examiner finds that any curtailment of operations was but a pretext for
these particular discriminatory layoffs and not the moving cause, especially in view
of the fact that Respondents, after the layoff, assigned the two outside salesmen to
plant work and also hired new plant employees.32
30 Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Company v.
N. L. R B , 111 F 2d 291, 293 (C. A 4), ". . . direct evidence of a purpose to violate
the statute is rarely obtainable." Accord ; N. L. R. B. v. Bird Machine Co., 161, F. 2d
589, 592 (C A 1).
31 Speegle testified, "The day I quit we were completely caught up on orders."
82A,justifiable ground for dismissal is no defense if it is a pretext and not the moving
cause N L R B. v solo Cup Company, 237 F. 2d 521 (C. A. 8).
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The offers of reinstatement
Commencing on or about October 27, the Union established a picket line at
Respondents' plant. Owens and Fortner joined the picket line, which was in exis-
tence at the time of the hearing, on some undisclosed date.
On January 2, 1957, while Owens was on the picket line, Hensley asked him if
he "wanted to go back to work." Owens replied that he would think about the
matter. Later that day, Hensley sent Owens a telegram addressed and reading
as follows:
JP Jan 2 946 AM
752 Extra PD (CFN)
BD SG
KENNETH OWENS (Personal Dely Only) (Report Dely)
Picket
Front of 800 Peralta Ave 33
San Leandro, Calif.
We are presently short of manpower and can use a plant employee.34 As
you seem to be available and not presently performing any productive work we
offer you work commencing on January third 1957. Stop. We will hold our
offer of employment open through January 7, 1957. Stop. If you do not
accept our offer by this time we will consider that you are not interested in
employment with this company.
HENSLEY EQUIPMENT.
CLYDE HENSLEY.
According to Fortner's credited and undenied testimony, Hensley approached
him while he was on the picket line and said, "You better come back in here. I got
a drill press open"; 35 that he declined the offer; and that he received a telegram
similar in wording to the telegram sent by Respondents to Owens on January 2,
1957.36
In response to said telegram Owens and Fortner, under date of January 2, 1957,
each wrote Hensley:
I will be happy to return to work under the terms and conditions of the
collective bargaining agreement negotiated with Operating Engineers Local No.
3. Please advise if this is satisfactory.
Respondents made no reply to said letters.
It is the General Counsel's contention that the aforesaid offers of reinstatements
were "not bona fide, and that Respondents, as a matter of remedy, be required to
make a further and valid offer of reinstatement to both Owens and Fortner." The
Trial Examiner finds merit in said contention.
In the first place, Respondents did not offer to reinstate Owens to his former job,
or to a substantially equivalent job, for his normal job was in the metal treat depart-
ment whereas he was offered a job as "a plant employee." In the second place, the
Trial Examiner is convinced, and finds, that Respondents' offers of reinstatement
were made for.the purposes of (1) persuading Owens and Fortner to abandon their
protected activity; (2) ridding the plant of a picket line which was crippling their
business; and (3) further forestalling the employees' legitimate organizational activi-
ties. In short, the offers of reinstatement were as ill-intentioned as Respondents'
other actions as set forth herein. In addition, it is significant to note that Arthur
Atkinson, who did not picket, was not offered reinstatement despite the fact that no
complaint was raised as to his workmanship, coupled with the fact that his brother
has been in Respondents' employ since about September 1953.
Upon the entire record in the case, the Trial Examiner finds that Respondents'
offers to reinstate Owens and Fortner were not made in good faith.
6. Violation of 8 (a) (1) of the Act
Norman Hamstad credibly, and without contradiction, testified that: he was in
the Respondents' employ from March 15, 1954, until April 1, 1956; when Hensley
and the then general manager, Ray Sabatiney, interviewed him for the job, Hensley
asked whether he belonged to any union; when he replied in the negative, Hensley
- Respondents' street address.
34 Owens normally worked in the metal treating department.
35 Fortner normally worked on a drill press.
36 Fortner could not recall, nor does the record reveal, the date when he received the
telegram.
HENSLEY EQUIPMENT COMPANY, INC. 575
stated that he "did not want to get involved with a union if [I can] help it"; in May
or June of 1954, a man named Kaufman was hired and assigned to his department;
and early in 1955, the following, relative to Kaufman, transpired:
Kaufman asked Mr. Hensley for a raise in wages and so Mr . Hensley' and
Mr. Sabatiney came to me to discuss the matter, and during the discussion Mr.
Hensley or Mr. Sabatiney asked me how he stood in regards with the union,
and I told Mr. Hensley and Mr. Sabatiney that Kaufman would like to get the
union in the company, and at that point Mr. Hensley made the statement,
"We will stop that right now." And Kaufman was laid off the next noon.
According to the credible and undenied testimony of Arthur Atkinson, he was
asked, at his job-interviewing conference in March 1956, by Godbey, in the presence
of Hensley, whether he was a member of any union; and that when he made no
reply Hensley remarked that Respondents were not "large enough at that time for
a union" but perhaps in a year Respondents would be in a position to be unionized.
Castro credibly testified, and in some respects his testimony is corroborated by
Godbey's credited testimony, that: on or about October 30, in his initial job inter-
view, Godbey asked him whether he was a union member; he replied, "No;" God-
bey then remarked, to quote Castro, "They was non-union and they would not have
a union; they didn't want it. And he said if I wanted a union that it would be best
to get a job elsewhere where there was union, and he said as far as it goes he will
not have a union"; Godbey further stated that the job would be permanent, pro-
vided he did not "go union"; that during his short stay with Respondents he had an
occasion to ask Hensley if he had a job open for a friend of his; and Hensley replied
in the affirmative, adding, to again quote Castro, "If your buddy wants a job here,
he can come to work here . . . as long as he don't go union, .... but we don't want
no boy that wants union. If he wants a union, don't bring him."
According to the credible and uncontradicted testimony of Speegle, the following
took place the same afternoon of the October 11 balloting: Hensley and Godbey
came into his department and said that since "the union had won the election .
they were going to make it a little miserable for the workingman" and then in-
structed Speegle to "make it rough for the men." 37
It would serve no useful purpose to set forth here at length the other incidents
of antiunion remarks and conduct engaged in by Respondents during the 6-month
period immediately prior to the filing and service of the original charge, most of
which is undenied, for such conduct and remarks, the Trial Examiner finds, were
designed to frustrate the Union's organizational campaign and to discourage em-
ployee participation therein. For example, Respondents' refusal to sign the agreed-
upon contract; Respondents' unilaterally, and without prior consultation, negoti-
ation, or discussion with the employees' bargaining representative, changing the
employees' working conditions; Hensley's interrogation of the employees on the
morning of October 11; Hensley's and Godbey's interrogating applicants for employ-
ment regarding their union affiliations or sympathies; Godbey's remark to Paul
Atkinson after the October 11 balloting that since the employees had selected the
Union, Godbey "didn't want to see nothing but a bunch of work" and henceforth
"all the breaks were out"; Godbey's inquiring of all applicants for employment
regarding their union sympathies and membership; and threatening the employees
with discharge if they refused to cross the Union's picket line.
Respondents seek to escape liability for Godbey's antiunion remarks and activity
on the ground that Godbey at the time of the complained conduct was "secretly
acting against the interest of his employer, and for the interests of the Union."
The Trial Examiner finds no merit in this contention. Firstly, there is absolutely
no evidence that Godbey engaged in any activity on behalf, or connection with,
the Union prior to Godbey's departure from Respondents' employ. In fact, the
credible evidence is to the contrary. In the second place, whatever may be said
about Godbey's activities regarding his plans to open a shop in competition with
Respondents, the fact remains that in many instances Godbey's unlawful conduct
(1) preceded August 1956, the date when he first discussed with Speegle the advis-
ability of opening their own shop; (2) was engaged in in Hensley's presence; and
(3) was similar in nature to the conduct Hensley engaged in in Godbey's presence.
The Trial Examiner further finds no merit or substance to Respondents' con-
37 The record is manifestly clear, and the Trial Examiner finds, that Speegle, a non-
supervisory employee, but in charge of a crew of men, carried out the above-referred-to
instructions and, in fact, got "rough with the men."
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tention that the complained of statements and conducts were protected by Section
8 (c) of the Act for the steps taken by them to defeat self-organization of their
employees constituted "threats of reprisals or force or promises of benefit" rather
than privileged expressions of "views , arguments , or opinion."
Upon the record as a whole , the Trial Examiner finds that by engaging in the
above-described conduct Respondents interfered with , restrained , and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connec-
tion with the operations of Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, violative
of Section 8 (a) (1), (3), and (5) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondents on or about October 16, 1956,38 and at all times
thereafter, have refused to bargain collectively with the Union as the representative
of a majority of the employees in an appropriate unit, the Trial Examiner will
recommend that Respondents, upon request, sign the collective-bargaining contract
to which Hensley signified his acceptance in Rhodes' offices on October 12, the
final typed copy of which, together with the aforementioned Union's October 12
letter, which expressly excluded Hensley's sons from the terms of said agreement,
was delivered to Hensley on October 13.39
Having found that Respondents, on October 15, 1956, discriminatorily laid off
Arthur Atkinson, Kenneth Owens, and Thurman Fortner because they had engaged
in certain protected concerted activities, the Trial Examiner will recommend that
Respondents offer Atkinson, Owens, and Fortner immediate and full reinstatement
to their former positions, without prejudice to their seniority or other rights and
privileges. The Trial Examiner also recommends that Respondents make Atkinson,
Owens, and Fortner whole for any loss of pay they may have suffered by reason of
Respondents' discrimination against them, by payment to each of them of a sum
of money equal to the amount he normally would have earned as wages from
October 15, 1956, to the date of the offer of reinstatement, less his net earnings
during those periods.
Back pay shall be computed in accordance with the formula enunciated by the
Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondents are
of such a character and scope that in order to insure the employees here involved
their full rights guaranteed by the Act it will be recommended that Respondents
cease and desist from in any manner interfering with, restraining, and coercing their
employees in their right to self-organization.
Upon the basis of the foregoing findings of fact and upon the record as a whole,
the Trial Examiner makes the following:
-The day when Clem and Barr conferred in Hensley' s private office with Hensley
and Bond.
In H. J Heinz v. N L. R. B.. 311 U. S. 514, the Court stated, at page 526:
Petitioner's refusal to sign was a refusal to bargain collectively and an unfair labor
practice defined in § 8 (5). The Board's order requiring petitioner at the request of
the Union to sign a written contract embodying agreed terms is authorized by § 10 (c).
This is the conclusion reached by five of the six, courts of appeals which have passed
upon the question. [Bethlehem Shipbuilding Corporation, Ltd. v N. L. R B , 114 F
2d 930 (C. A. 1) ; Art Metals Construction Company v. N. L. R. B, 110 F. 2d 148
(C. A. 2) ; N. L. R. B v. Highland Park Manufacturing Company, 110 F. 2d 632
(C A. 4) ; Wilson & Company v N L R B, 115 F. 2d 759 (C. A. 8) ; Inland Steel
Company v. N. L. R. B., 109 F. 2d 9 (C. A. 7) ; Fort Wayne Corrugated Paper Com-
pany v. N. L. R. B., 111 F. 2d 869 (C. A. 7).]
L. D. MCFARLAND COMPANY 577
CONCLUSIONS OF LAW
1. Operating Engineers Local Union No. 3 of International Union of Operating
Engineers , AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. All Respondents ' parts and service department employees , excluding Clyde
Hensley's sons , office and clerical employees , salesmen, guards, and supervisors as
defined by the Act, constitute , and during all times material herein constituted, a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. Operating Engineers Local Union No. 3 of International Union of Operating
Engineers , AFL-CIO, was on October 11, 1956, and at all times thereafter has
been , and now is, the exclusive representative of all the employees in the above-
described appropriate unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By failing and refusing to sign the collective -bargaining agreement , the terms
of which having been agreed upon on October 12, 1956, Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(5) of the Act.. 5. By discriminatorily laying off Arthur Atkinson, Kenneth Owens, and Thurman
Fortner on October 15, 1956, and thereafter refusing to reinstate them , Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
6. By changing the employees ' working conditions without prior consultation,
negotiation , or discussion with the Union , the duly designated collective -bargaining
representative of the employees here involved, by interrogating their employees and
applicants for employment regarding their union affiliations and sympathies, by
threatening their employees with reprisals because of their union adherence, by
threatening the employees with discharge if they refused to cross the picket line
established by the Union at Respondents ' plant, thereby interfering with, restrain-
ing, and coercing their employees in the exercise 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.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
L. D. McFarland Company and Local Union 5-246, International
Woodworkers of America , AFL-CIO , Petitioner. Case No. 36-
RC-1312. August 15,1958
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to the Board's Decision and Direction of Election
dated April 10, 1958, an election was conducted herein on June 11,
1958, under the direction and supervision of the Regional Director
for the Nineteenth Region. The election was conducted by secret
ballot among the production and maintenance employees. Upon the
conclusion of the balloting, a tally of ballots was issued and served
upon the parties in accordance with the Board's Rules and Regula-
tions. The tally shows that of the approximately 9 eligible voters,
i Not published
121 NLRB No. 68.
487926-59-vol. 121-38