Howard-Cooper Corp.

National Labor Relations Board - Board Decisions

Jun 25, 1952

99 N.L.R.B. 891 (N.L.R.B. 1952)

HOWARD-COOPER CORPORATION
Appendix A
NOTICE TO ALL EMPLOYEES
891
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership of our employees in FEDERAL LABOR
UNION No. 19981, AFL, or in any other labor organization, by discriminating
in regard to their hire and tenure of employment, or in any other manner
discriminating in regard to any other terms or conditions of employment.
WE WILL offer Fred W. Hartswick immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any senior-
ity or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of the discrimination against him.
WE WILL NOT because of their union membership, affiliation, and activities,
or in any 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 FEDERAL LABOR UNION No. 19981, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such
activities except to the extent that such right may be permitted by the pro-
visions of Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named union or any other labor organization
except to the Extent permitted by the provisions of Section 8 (a) (3) of the Act.
We will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employees because of membership in or
activity on behalf of any such labor organization.
TITAN METAL MANUFACTURING COMPANY,
Employer.
By --------------------------------------------
Dated -------------------- ( 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.
HOWARD-COOPER CORPORATION and INTERNATIONAL ASSOCIATION OF
MACHINISTS , LOCAL LODGE 1468 , AFL. Case No. 36-CA.-017.
June 25,1552
Decision and Order
On December 19, 1951, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a brief.
99 NLRB No. 141.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Mur-
dock, and Styles].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds 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 findings, the conclusions, and recom-
mendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Howard-Cooper Corpora-
tion, and its agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Local Lodge 1468, AFL, as the exclusive represen-
tative of all its employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
(b) In any other manner interfering with the efforts of Interna-
tional Association of Machinists, Local Lodge 1468, AFL, to negotiate
for or represent the employees in the aforesaid unit as their exclusive
bargaining agent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associa-
tion of Machinists, Local Lodge 1468, AFL, as the exclusive repre-
sentative of the employees in the aforesaid unit and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(b) Post in conspicuous places at its plant in Central Point, Oregon,
including all places where notices to employees are customarily
posted, copies of the notice attached hereto as Appendix AI Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof and
maintained by it for at least sixty ( 60) consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
i In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
HOWARD-COOPER CORPORATION 893
(c) Notify said Regional Director, in writing, within ten (10) days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 1468, AFL, as
the exclusive representative of all employees in the following bar-
gaining unit with respect to rates of pay, hours of employment,
and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement:
All employees employed at our Central Point, Oregon,
plant to service, repair, and maintain tractors and heavy ma-
chinery, including the parts man and maintenance man, but
excluding supervisors, guards, and professional employees
as provided in the Act, and office, clerical, and technical em-
ployees.
WE WILL NOT in any manner interfere with the efforts Of IN-
TERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL LODGE 1468,
AFL, to negotiate for or represent the empolyees in the aforesaid
unit as their exclusive bargaining agent.
HOWARD-COOPER CORPORATION,
Employer.
By ----------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges and amended charges having been duly filed , a complaint and notice
of hearing thereon having been issued and served by the General Counsel, and
an answer having been filed by the above-named corporation , a hearing involv-
ing allegations of unfair labor practices in violation of the National Labor Re-
lations Act, 61 Stat. 136, herein called the Act, by said corporation , herein called
the "Respondent, was held upon due notice at Medford, Oregon , on September 6,
1951, before the undersigned Trial Examiner. The allegations , in substance,
are that on or about March 12, 1951, the Respondent refused, and has since con-
tinued to refuse, to bargain collectively with the Union as the exclusive repre-
894 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its employees in an appropriate unit, although a majority of said
employees had designated the Union as their representative for such purposes, in
violation of Section 8 (a) (1) and (5) of the Act. The General Counsel and
the Respondent were represented by counsel, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence perti-
nent to the issues, to argue orally upon the record, and to file briefs and proposed
findings and conclusions. A brief was received from the Respondent, and has
been considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Oregon corporation, has its principal office and place of
business in Portland, Oregon. It is engaged in selling, servicing, and repairing
new and used tractors, caterpillars, and other industrial and farm machinery,
and has plants in Seattle, Washington, and Portland, Albany, Eugene, Roseburg,
Coquille, and Central Point, Oregon. The last-named plant is the only one
directly involved in this proceeding.
During the Respondent's last fiscal year, it made purchases of supplies and
equipment exceeding $1,000,000 in value, of which approximately 95 percent was
shipped to the Respondent from points outside the State of Oregon. During the
same period, the Respondent's sales exceeded $1,000,000, of which one-third in
value represented shipments by the Respondent directly to points outside the
State of Oregon. The Respondent concedes, and I find, that it is engaged in
commerce within the meaning of the Act and that jurisdiction should be
asserted herein.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, Local Lodge 1468, AFL, herein called
the Union, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
During February 1951, organizational activity occurred among the mechanics
at the Respondent's plant in Central Point, Oregon. On February 19, five em-
ployees, a majority of the number in the appropriate unit described below, signed
cards authorizing the Union to represent them in collective bargaining.
About 1 week later, Melvin R. Aitken, manager of the plant, called a meeting
of the mechanics and a parts man and maintenance man. Also present were
Ray O. Worden, officer manager, and one Thrash, shop superintendent. Aitken
told the employees, among other things, that they should discard any intent "of
the union coming into the shop," that the Respondent had one union shop and did
not want another, and that, if necessary, the repair shop would be operated
with the supervisory personnel alone.' Following this meeting, Alfred L. Patten,
a mechanic, was detained by Aitken, who said that he understood Patten to be
1 The findings concerning Aitken's remarks are based upon the credible testimony of
Claude G Owsley, Alfred L. Patten, and Cecil A. Halstead, employees who were witnesses
for the General Counsel The Respondent's version is set out in the next footnote.
HOWARD-COOPER CORPORATION 895
the "ringleader" in the union activity. Patten denied having a leading part.
Aitken inquired if the employees were going to join the Union, and Patten
answered that he did not know. Aitken said that if he thought that Patten was
"leading the boys into joining the union," he would discharge Patten! .
On March 12, C. H Pence, a representative of the Union, wrote to Aitken,
asserting that the Union represented "the majority of the employees," and asking
that Aitken designate a time and place for collective bargaining. On March 15,
the day Aitken received the letter, or the following day, Aitken distributed
pieces of paper among the employees in the repair shop and asked that they
signify thereon whether they wished the Union to represent them. After the
employees had done so, Aitken collected the papers, and announced that the vote
was unanimously in favor of representation by the Union.' On or after March
15, Aitken forwarded the Union's letter to the Respondent's office in Portland.
The Respondent did not reply.
On or about March 27, the Union filed with the Board's Regional Office a
petition for certification, copy of which was received at the Central Point plant
on April 2. According to the testimony of Office Manager Worden, during the
week of March 25 he received at the plant a "station to station" telephone call
from a man in Eugene, Oregon, who identified himself as a representative of the
Union. Worden testified that the caller said that he was telephoning "regarding
our case" and referred to a "letter" or "petition," or "paper" which had been
sent to the Respondent. At this point in the conversation, according to Worden,
he "had a chance to break in" and inform the caller that the persons in charge
of the plant had no authority in connection with the matter and that the caller
should contact the Respondent's president in Portland, whose name and telephone
number were then furnished by Worden. The brief conversation ended. Pence,
the writer of the Union's letter to the Respondent, testified that he did not make
the telephone call. Worden testified that he had been under the "assumption and
belief" that the caller had been Pence, but that perhaps he had been mistaken.
I find that the identity of the caller and his capacity, if any, with the Union are
not established by the record.
At an undisclosed date, apparently during April, the Union withdrew the
petition. On April 9, it filed the initial charge in this proceeding.
B. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that an appropriate unit consists of "all employees
employed to service, repair, and maintain tractors and heavy machinery ; exclud-
2 The findings concerning the conversation between Patten and Aitken are based upon
the testimony of Patten. Although Thrash was present at the conversation, as well as at
the meeting which preceded it, he was not a witness. Worden, who also was present at
the meeting, testified for the Respondent, but was not interrogated concerning Aitken's
remarks According to Aitken, the basic reason for the meeting was that customers had
complained concerning repair work, particularly a job performed by Patten during the
preceding September, on which occasion Patten had given erroneous advice to a customer.
The reason for detaining Patten at the meeting's end, Aitken testified, was to warn Patten
not to advise customers erroneously again. It is clear from Aitken's testimony, however,
that unionization was a subject matter of discussion. He testified that, although he could
not recall the circumstances, "the union matter was brought up," that he asked the em-
ployees whether they were satisfied, and that he explained the advantages of working for
the Respondent. In view of the credible testimony by witnesses for the General Counsel,
coupled with the admissions of Aitken, I find that he made the remarks attributed to him.
IIn its brief, the Respondent concedes that Aitken "held an Informal election" in
which the "votes were apparently" in favor of representation by the Union.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing supervisors, guards, and professional employees as provided in the Act, and
office, clerical, and technical employees." Within such unit at times material,
there. were five employees, all of whom performed mechanical operations." In
addition, the Respondent asserts that the unit should include the parts man,
G. L. Hallett, and the maintenance man or janitor, R. S. Latham. The General
Counsel does not urge their exclusion.
The mechanics are engaged in servicing and repairing tractors and other
equipment. The parts man operates the parts department, and receives and
stores parts, machinery , and equipment . He furnishes parts to the mechanics
as needed, and to customers who make direct purchases. His regular hours
of work coincide with those of the mechanics and he generally works overtime
when the mechanics are required to do so. He is paid an hourly rate, with time
and a half for overtime, as are the mechanics. I find that there is a community
of interest between the mechanics and the parts man, and that the latter should
be included within the appropriate unit. Harry Brown Motor Company, at al.,
86 NLRB 652.
The maintenance man performs miscellaneous tasks , such as making minor
repairs to the plant, and janitorial work. He is paid at an hourly rate and has
the same regular working hours as the mechanics. He rarely works overtime,
however. While his work is not as closely related to the work of the mechanics as
is that of the parts man, his inclusion within the unit is warranted by precedent.
Jack Taylor and Paul Bullard, d/b/a Butte Motors, 85 NLRB 1336. In par-
ticular, his conditions of employment appear to be more closely related to those
of the employees within the unit than to those outside the unit, and since all
other employees who have duties within the repair shop are included within the
unit, I believe that the maintenance man should be included also.
I find that all employees employed at the Respondent's Central Point, Oregon,
plant to service, repair, and maintain tractors and heavy machinery, including
the parts man and maintenance man, but excluding supervisors, guards, and
professional employees as provided in the Act, and office, clerical, and technical
employees, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. The Union's majority status
As found above, at times material there were seven employees within the ap-
propriate unit and, on February 19, 1951, the five mechanics designated the
Union to represent them. Accordingly, I find that on February 19, 1951, and
at all times thereafter, the Union was the duly designated representatives of a
majority of the employees in the appropriate unit and, pursuant to Section
9 (a) of the Act, has been and is now the exclusive representative of all the
employees in such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of employment.
* These five employees, all mechanics, are : Halstead, Owsley, Patten, W. F. Hocking,
and C. E. Shafer. A sixth mechanic at the time of the refusal to bargain, one Aischelman,
had been employed in a temporary capacity and worked less than 3 weeks. There is no
dispute that Aischelman was a temporary employee , and he shall not be considered in
a determination of the Union's majority status. With respect to Owsley, the Respondent
asserts, contrary to the contention of the General Counsel , that he also was a temporary
employee. Owsley testified , however, that he had been employed in a permanent capacity,
and the Respondent did not produce evidence to disprove that testimony . I find that
Owsley was a permanent employee.
HOWARD-COOPER CORPORATION 897
3. The refusal to bargain
We have seen that the Respondent did not reply to the Union's letter of
March 126 In defense, the Respondent raises several contentions. It asserts
that the Union did not make a clear and unequivocal demand for bargaining.
Such a demand, absent special circumstances, is a prerequisite to a finding of
a refusal to bargain. John Watford d/b/a Watford Cabinet Company, 95 NLRB
1407, and cases cited therein. According to the Respondent, the writer of the
letter, Pence, was unknown to Aitken and its other representatives. Moreover,
says the Respondent, since it did not know "whom he [Pence] was claiming to
represent, nor what he proposed to do," the "ordinarily, prudent person's reac-
tion" to Pence's letter would be to await "further contact from Pence." Aitken
forwarded the letter to the Respondent's office in Portland because, so he testi-
fied, he had "no authority whatsoever to act on it." The Respondent also argues
that the Union should have addressed a demand to a person authorized to rep-
resent the Respondent in collective bargaining, and that in not doing so the
Union "failed to press any demand diligently." The contentions are not persua-
sive. Manifestly, the Union's demand was clear and unequivocal. It was made
upon Aitken as manager of the plant. He did not respond to it and notify the
Union that he was without authority in the matter and that he had referred the
letter to an appropriate person. Instead, he went among the employees and
conducted a poll to ascertain whether "they were in favor of the union." While
the record does not disclose the identities of all the employees who voted, it does
disclose that each vote was in the affirmative. I find that the Respondent's
failure to reply to Pence's letter was motivated by its hostility to the bargaining
process, as shown by (1) Aiken's remarks to the employees that they should
discard any intent to organize and that the repair shop might be operated by
the supervisory personnel alone; (2) Aitken's characterization of Patten as the
"ringleader" in the organizational activity, and his threat to discharge Patten if
such were the fact; and (3) Aitken's poll of the employees.6 I find also that
the Respondent's failure to reply is not excused by the advice of Office Manager
Worden to an unidentified person over the telephone, nearly 2 weeks after receipt
of the Union's letter, that contact should be made with the Respondent's presi-
dent in Portland. Nor is it excused by the Union's filing a petition for certifica-
tion, later withdrawn. Seven Up Bottling Company of Miami, Inc., 92 NLRB
1622. As pointed out in the next paragraph, in view of the Respondent's conduct,
there was no obligation upon the Union to establish its majority status by means
of an election.
5 The letter, bearing a return address in Eugene, Oregon, is as follows :
MR. MELVIN It. ACHEN, [sic] Manager,
Howard-Cooper Corporation,
Box 86, Central Point, Oregon.
DEAR SIR : This is to advise your Compdny that as of the above date [March 12,
1951] the majority of the employees employed by your Company at the Central Point
branch have authorized Lodge No. 1468, International Association of Machinists,
Medford, Oregon, to represent them for purposes of collective bargaining, to negotiate
and conclude all agreements as to hours of work, wages, and other conditions of
employment.
We are at liberty to meet with you at any time or place you may designate for
the purpose of collective bargaining
Looking forward to a meeting with you on the above subject soon, I remain,
Sincerely,
C. H. PENCE,
Grand Lodge Representative.
In the absence of allegations in the complaint that Aitken's conduct constituted inde-
pendent violations of Section 8 (a) (1) of the Act, no such findings are made.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the Respondent -argues that it was entitled to proof that the Union
was in fact the duly designated representative of its employees, and that the
Union "only claimed," but did not "demonstrate," a representative status. The
fact, however, is that the Respondent knew that the Union possessed majority
status. If doubt existed, Aitken's poll of the employees erased it. In any event,
the Respondent did not ask the Union to prove its majority status, nor did it
decline to meet with the Union because of a professed doubt. It is well estab-
lished that the Respondent may not now successfully raise this issue. N. L. R. B.
v. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2) ; N. L. R. B. v. Chicago Appa-
ratus Company, 116 F. 2d 753 (C. A. 7).
I find that on March 15, 1951, and thereafter, the Respondent refused to bar-
gain collectively with the Union, in violation of 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
connection with the operations of the Respondent 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act. I have
found that the Union represented a majority of the employees in an appropriate
unit and that the Respondent refused to bargain collectively with it. Accord-
ingly, I shall recommend that the Respondent, upon request, bargain collec-
tively with the Union as the exclusive representative of the employees in the
appropriate unit.
Upon the basis of the above findings of fact and the entire record in the case,
I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All employees employed at the Respondent's Central Point, Oregon, plant
to service, repair, and maintain tractors and heavy machinery, including the
parts man and maintenance man, but excluding supervisors, guards, and pro-
fessional employees as provided in the Act, and office, clerical, and technical
employees, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (.b) of the Act.
3. The Union, on February 19, 1951, was, and at times thereafter has been,
the exclusive representative of all employees in such unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentatives of its employees in an appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
STANDARD COIL PRODUCTS, INC . 899
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6)$and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
STANDARD COIL PRODUCTS, INC. and UNITED AUTOMOBILE WORKERS OF
AMERICA, AFL. Case No. 7-CA-536. June °5,1952
Decision and Order
On August 30, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the Act, 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. The Trial Examiner
also found that the Respondent had not engaged in certain other al-
leged unfair labor practices, and recommended dismissal of these al-
legations of the complaint. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs, and the Respondent filed a reply brief.
The Respondent also filed a motion to reopen the record in this
proceeding to require a representative of the Board, Field Examiner
Porterfield, to produce all written documents and notes given to him
by witnesses for the General Counsel and to testify with respect to
,conversations with such witnesses, for the purpose of showing that
those witnesses who testified with respect to an incident of alleged sur-
veillance by Personnel Manager Howard on October 26, 1950, had
never informed Porterfield of these facts and that they therefore must
have fabricated their testimony with respect to this incident J The
General Counsel filed objections to this motion. The granting of the
Respondent's motion lies solely within the discretion of the Board, as
the documents requested by the Respondent are confidential and are
not available for public inspection 2 Moreover, representatives of the
' The documents and evidence requested by the Respondent were obtained by Field
Examiner Porterfield during his investigation of the Union ' s objections to the election
held on October 27, 1950, in Case No. 7-RC-1144, and not during the investigation of the
instant proceeding . The Union 's objections were sustained and, on December 12, 1950,
the Regional Director ordered this election set aside.
2 Section 102.89 ( b) of the Board ' s Rules and Regulations , Series 6, as amended, pro-
vides that "all files, documents , reports, memoranda , and records pertaining to . . . the
investigation or disposition of charges or petitions during the nonpublic investigative
stages of proceedings . . . and all matters of evidence obtained by the Board or any of
its agents in the course of investigation , which have not been offered in evidence at a
hearing before a trial examiner . . . or have not been made part of an official record by
stipulation . . . . are . . . confidential and are not matters of official record or available
to public inspection , unless permitted by the Board, its chairman , the general counsel,
or any regional director."
99 NLRB No. 131.