Mechanical Specialties Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 154 (N.L.R.B. 1967)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mechanical Specialties Company, Inc. and
International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America , UAW-AFL-CIO and Grievance
Committee
Mechanical Specialties Company, Inc. and
International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America , UAW-AFL-CIO, Petitioner. Cases
31-CA-97 (Formerly 21-CA-6817) and
31-RC-14 (Formerly 21-RC-9528)
June 28, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On February 23, 1967, Trial Examiner Wallace
E. Royster issued his Decision in the above-entitled
case, 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 attached Trial Examiner's Decision.
Thereafter, the Charging Party and Respondent
each filed exceptions to the Trial Examiner's Deci-
sion with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions 2 of the Trial Examiner.
In agreeing with the Trial Examiner's finding that
the discharge of Cantrell was motivated by union
animus, and violative of Section 8(a)(3) of the Act,
we note the following. Cantrell was a known active
adherent of the Union from its inception, attending
meetings, soliciting authorization cards, and ad-
vocating its acceptance among employees. Early in
In support of the Trial Examiner's finding that Respondent had
knowledge of Klein's union activity, the following testimony on direct ex-
amination of Superintendent Howland appears in the record:
Q. Then after that period of time, do you recall any conversation
that you had with [Klein] concerning the union or union organizing
activities?
A. Well, on March 12th, I had talked to him at the third Tree Mill
by the grinding room and had already asked him .. .
Q. Now, tell us what was said'
A. This had led up to the fact that previously on the 10th I had
asked him to hold his excessive conversation down I was just having
a general conversation with him. One thing led to another, and I said,
"Irving, you don't look like an organizer to me." He then went on,
the campaign Cantrell became a specific target of
Respondent's active hostility toward the Union.
This occurred when Vice President-General
Manager Fink unlawfully interrogated him in early
March 1965 concerning the recent February 28
union meeting and the names of those in at-
tendance.
Respondent claims it discharged Cantrell for lack
of work. We find that Respondent's asserted
economic reasons for discharging Cantrell are un-
convincing and pretextual in nature for the_ follow-
ing reasons: For the period of his employment Can-
trell worked a 54-hour week, having worked 10 and
8 hours, respectively, during the last 2 days of his
employment. After Cantrell's discharge on May 11,
1965, Respondent distributed his work to em-
ployees on the day shift, who were already being af-
forded substantial overtime along with other
night-shift employees. It is unreasonable to con-
clude that an employee who had been working a
54-hour week suddenly and abruptly became un-
needed without any advance notice or warning and
at a time when substantial overtime was being af-
forded by the plant to all employees. This claimed
abrupt decrease in work is wholly inconsistent with
the Respondent's contention that the business was
going through a gradual change in operation, with
a deemphasis of the milling machine function and a
commensurate increase in the need for jig boring. In
this respect it appears that several months before,
in January 1965, Superintendent Howland and Su-
pervisor Payton offered Cantrell a transfer to the jig
bore operation because of his good workmanship.
At that time he expressed a preference for the
milling machine work, and declined the offer.
Thereafter, when Cantrell was discharged, this
same opportunity was not reoffered to him, despite
the fact that Respondent was in need of skilled
machinists as evidenced by newspaper advertise-
ments seeking jig bore machinists and the standing
custom of paying a $50 bonus to any employee who
is responsible for recruiting a suitably skilled appli-
cant. Respondent's failure at least to inquire of Can-
trell if he would fill the jig bore vacancy at the time
of his discharge, when viewed in the light of the
previous offer made to him several months earlier
and the constant search for good machinists,
creates a strong inference that Cantrell was maneu-
vered out of his job.
and, apparently, he thought that I was accusing of him of being a paid
organizer. I said, "That is not so, Irving " And I said all the em-
ployees who are campaigning in the company for the union are or-
ganizers in my opinion
2 The Charging Party has filed exceptions to the Trial Examiner's rejec-
tion of its request for a monetary remedy to make the employees whole for
losses they may have suffered as a result of the Respondent's unlawful
refusal to bargain. We deem it inappropriate in this case to depart from our
existing policy with respect to remedial orders in cases involving viola-
tions of Sec. 8(a)(5), and therefore deny the said request However, in
adopting the Trial Examiner's disposition of this matter, we do not pass on
or adopt his rationale for rejecting the Charging Party's contentions See
Monroe Auto Equipment Company, 164 NLRB 1051.
166 NLRB No. 31
MECHANICAL SPECIALTIES CO.
In these circumstances, considered against the
background of Respondent's opposition to em-
ployee organization, we find the conclusion in-
escapable that Respondent sought to remove an ac-
tive and vocal supporter of the Union by realign-
ment of duties. Accordingly, we find Respondent
discharged Cantrell in violation of Section 8(a)(3)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Mechanical Specialties
Company, Inc., Los Angeles, California, its of-
ficers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
155
industry components in Los Angeles, California. In the
conduct of its business operations the Respondent an-
nually purchases goods and materials valued at more than
$50,000 which are received at its plant directly from
sources outside the State of California. The Respondent
annually produces, sells, and ships from its Los Angeles
plant products valued at more than $50,000 to customers
located outside the State of California. The Respondent
admits that it is and I find it to be an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
It is conceded, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Upon the basis of the evidence set forth below, I find,
contrary to the position of the Respondent, that the
Grievance Committee is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WALLACE E. ROYSTER, Trial Examiner: This con-
solidated proceeding was tried before me in Los Angeles,
California, on various dates from April 25 through May
26, 1966. The complaint as amended at the hearing al-
leges that Mechanical Specialties Company, Inc., herein
the Respondent, by granting wage increases and other
benefits, by interrogating employees concerning member-
ship activity and sympathy with International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW-AFL-CIO, herein the
Union, by engaging in surveillance or creating an impres-
sion of surveillance of a union meeting, by assisting and
encouraging the circulation of an antiunion petition, by
threatening discharge and loss of employment if the
Union succeeded in its organizational attempt, by dis-
criminatorily enforcing a no-solicitation rule, by dominat-
ing and interfering with the formation and administration
of a grievance committee, and by discharging its em-
ployees, Alfred A. Cantrell and Irving Klein, has engaged
in unfair labor practices within the meaning of Section
8(a)(1),(2),(3), and (5) of the National Labor Relations
Act, as amended, herein the Act. Objections to an elec-
tion are also presented for disposition.
Following the close of the hearing a motion to correct
the record was filed by counsel for the General Counsel.
In the absence of opposition the motion is granted and is
hereby made a part of the exhibit file.
In consideration of the briefs filed, from my observa-
tion of the witnesses, and upon the basis of the entire
record, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation engaged in the fabri-
cation of tools, gauges, special machinery, and aerospace
In the fall of 1964 the Union began an organizational
campaign among employees working for tool and die
shops in the Southern California area. In December of
that year the Respondent became aware of the Union's
purpose and consulted counsel. In the same month,
Robert S. Howland, Respondent's superintendent, re-
ported to Michael J. Fink, vice president and general
manager of the operation, that some competitors were
paying higher wages than those in effect in Respondent's
shop. Fink said that a wage survey would be made. Fink
mentioned this circumstance to Respondent's president,
L. M. Weitzel, with the result that in mid-February 1965,
Weitzel gave Fink wage data reflecting the rates in effect
in competitive shops. Within a few days, according to
Fink, in consultation with Superintendent Howland, a
number of wage increases were decided upon and made
effective March 8. In all, 65 or 70 wage raises were given.
The Respondent then had about 115 shop employees.
Before the increases were announced or even finally
decided upon, the Union, on February 28, held a meeting
of employees coming from a number of shops similar to
that of the Respondent and including some of Respond-
ent's employees. Vincent Sloane, the Union's represent-
ative in charge of the campaign, told the gathering, he
testified, that the Union was attempting to obtain status
as bargaining representative throughout the entire indus-
try in Southern California, and that this would come
about through elections conducted by the National Labor
Relations Board. At this meeting employees were soli-
cited to sign cards designating the Union as bargaining
representative.
On March 9, 1 day after the wage increases had
become effective, Weitzel spoke to the employees on the
day shift in the plant. Weitzel said that he had heard ru-
mors of union talk and dissatisfaction but that he felt the
Respondent could solve its own problems. He suggested
that the employees select representatives to serve on a
grievance committee and commented that the Union
could drive the Respondent out of business. Such a com-
mittee was selected by the employees I and later met with
Representatives of the Respondent.
I On the night shift, Supervisor Walter Payton acted as chairman of the
meeting in which representatives were chosen
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Berno, who until March 232 was a timekeeper
and assistant security officer, learned that a union or-
ganizing meeting was to be held on March 14. Desirous
of learning, he testified, if the Union could be of benefit
to him, he determined to attend despite the fact that two
employees questioned the propriety of his presence at
such a gathering on the ground that Berno was part of
management. Although he came to the meeting with an
open mind, Berno testified, he observed that some em-
ployees in attendance seemed to find the question of
whether to support the Union to be a disturbing one.
Berno concluded from this that the Union would disrupt
the harmonious relations then existing in the shop and de-
cided that he would oppose it.
The next morning, March 15, Berno reported to
General Manager Fink about his attendance at the
meeting,3 saying that 25 or 30 were present from the
Respondent's shop. Fink relayed this intelligence to Su-
perintendent Howland who expressed surprise at the
number of Respondent's employees attending and said
that he would "check into" it. With the assistance of
Berno a list comprising the employees who would
probably comprise the bargaining unit was compiled.
Berno, upon his own initiative, he testified, indicated on
this list those whom he had observed in attendance at the
meeting. Within a few days, Howland and Fink came to
conclusions about which of the employees would support
the Union, which of them would not, and which were un-
decided.
On March 16, the Respondent received a letter from
the Union dated March 12 asserting that a majority of the
employees had designated the Union as collective-bar-
gaining representative. The Union asserted that it was
ready to demonstrate its majority status by submitting
authorization cards to an impartial person for examina-
tion and said that it desired to institute negotiations look-
ing toward a collective-bargaining agreement. After con-
sulting with counsel and after Fink and Howland had con-
cluded, they testified that they were quite certain that the
Union did not command the support it asserted. The
Respondent announced that it had a good-faith doubt
concerning the majority status of the Union; that it did
not believe that its employees had authorized the Union
to represent them freely, voluntarily, and without coer-
cion; and declined to extend recognition. The Respond-
ent suggested that an election under the procedures of
the Board would be appropriate.
Frank Isak, the general foreman on the day shift,
testified that on February 19 he learned that the Union
was soliciting signatures to designation cards. Isak asked
his informer, employee Kirk Riegler, how he felt about
the Union. Riegler answered that he opposed it. A few
days later, according to the credited and undenied
testimony of Foreman Isak, and several leadmen, among
them Ronald Lawler, Robert Woods, and Vernon Zeman,
Howland told them to keep their eyes and ears open for
union activity or talk and to report to him about it. Isak
testified that he made no inquiry of employees about their
union sympathies but that some volunteered their feelings
to him. Leadman Salvador Negrete testified to the same
effect. Leadman Zeman testified that he had conversa-
tions with employees about the Union and that he re-
ported to Howland what he believed various employees
thought about the Union. Revealingly, I find, Zeman
testified at one point that he made a report to Howland
based upon "what he could get out of Osdale." Zeman
rather quickly said that what he really meant, was that he
reported to Howland what Osdale had "voluntarily told
me." It was upon the basis in part of these reports from
leadmen and others that Fink and Howland came to the
conclusion they did about the strength of the Union in the
shop.
On March 9 Weitzel met with the Grievance Commit-
tee. On March 13, in a letter addressed to all employees,
he mentioned the fact of this meeting and that he then
learned of some dissatisfaction with the group
hospitalization program. Weitzel told the employees in
this communication that he was "looking into other
plants, and [would] be contacting the shop representa-
tives to work out a program that will more nearly
represent your wants." On Tuesday, March 16, a group
of employees, constituting the Grievance Committee,
met with President Weitzel. Matters discussed were the
Respondent's profit-sharing plan, vacation pay, hours of
the day shift, insurance, job classifaction schedules, and
sick pay. At the meeting of the same group on April 5, it
was suggested that the Respondent should purchase a
larger green grinding wheel. Other questions raised by the
members of the Grievance Committee related to over-
time pay, insurance, and a suggestion that the Respond-
ent supply certain tools and more adequate ventilation.
President Weitzel wrote a report of this meeting which
was distributed among the employees and, after listing the
items which had been subjects of discussion, said:
We have been studying changes in the group in-
surance program with the guidance of expert in-
surance consulation. We recognize that changes are
necessary; however, we car-not give any increased
benefits because of labor law regulations while the
labor board proceedings are pending.
This same problem prevents improved benefits re-
garding holidays, vacation pay, and other items
discussed with your representatives. However, those
of you that have been with us for any length of time
know that we have increased wages and benefits in
the past consistent with our continuous desire to
make our shop the best in which to work anywhere.
We will continue this policy in the future. We know
that to get the best people, we should have the best
working conditions.
There have been subsequent meetings of the Grievance
Committee with President Weitzel with similar items on
the agenda.
On March 22, the Union filed a petition with the Board
seeking certification as bargaining representative of
Respondent's employees. A hearing was held, a bargain-
ing unit described, and an election directed. The tally of
ballots resulting from the election on June 11 showed that
of 115 eligible voters, 40 cast ballots for and 59 against
the Union. Thereafter the Union filed objections to the
election which were consolidated for hearing in this
proceeding.
The first written communication from the Union
directed to employees of Respondent and to employees
of other similar employers in Southern California is dated
March 3. In it the Union said that its organizing campaign
On this date he became personnel director
The allegations of surveillance are bottomed on Berno 's presence at
the March 14 meeting I find that he was not a supervisor on that date and
there is not sufficient evidence to establish that he attended at Respond-
ent's direction. I find that Berno went to the meeting and reported what
he saw and heard in an effort to enhance his standing with his Employer.
MECHANICAL SPECIALTIES CO. 157
was proceeding at a rapid pace in 34 plants . Mention was
made of gains achieved elsewhere by union organization
and readers were urged to make every effort to have
designation cards signed . A week later , in a similar com-
munication, the Union said that it was nearly ready to file
petitions for elections . At some other time in March, the
Union distributed a mimeographed sheet which was
devoted in substantial part to questions concerning a
representation election.
Following the talk by President Weitzel to Respond-
ent's employees on March 9, in which he arranged for
the creation of the Grievance Committee, the Respond-
ent sent occasional communications to its employees
urging them to reject the Union . One bearing no date, but
obviously distributed during the preelection period, posed
questions and gave answers . Responding to one of its
questions , the Respondent said a union contract:
Is no better than the ability of the company to con-
tinue to remain in business . Look what happened to
Falco Tool & Die. It had a contract with this Union
but where is it now? Without a contract the promises
of the company to the employee can certainly be as
good as can be negotiated with any union . Both de-
pend on the ability of the company to continue in
business and make a profit. Without a Union the
company will not have to face the threat of strikes or
secondary boycotts. (where the employees of this
company are used to organize the employees of any
company). Without a Union we can guarantee unin-
terrupted production and delivery to our customers.
The security of employees in the promises and
benefits that a company without a contract is every
bit as good as with a labor contract.
On May 12, General Manager Fink wrote to individual
employees saying in part:
If you have not heard or are a newcomer to the trade,
Falco, Mars and Alba Engineering were large and
successful job shops in the area and some years back
their employees were promised the Pie-in-the-Sky
and went union. As the story goes, the Pie-in-the-Sky
hit the sky blue yonder. Alba Engineering lasted six
months; Mars and Falco did not last much longer
when they too hit the blue because these shops could
no longer operate with the shop stewards or the boys
from Detroit.
A day later a letter from W. Lee Campbell, Respondent's
regional sales manager , was similarly distributed. Camp-
bell wrote that he traveled widely from the Respondent
in his saleswork and said that he heard much talk from
customers about the Union's attempt to organize the
Respondent. Campbell said that he felt that these
customers were concerned about the consequences
should the Union succeed. He speculated that the
customers were wondering how deliveries could be made
if a strike was threatened or took place; if the customer
could rely upon the Respondent to produce efficiently
and meet delivery schedules; if the Respondent would not
be forced to raise its charges above those of its competi-
tors; Whether quality would be maintained ; and whether
the Respondent could hope to compete and grow with the
burden of "union inefficiencies of operations." Campbell
concluded his letter by saying that he did not want the
Respondent to lose its place at the head of the industry
after so much effort had been expended in order to attain
that preeminence, and that there was only one way to
keep sales and business at a high level "by a vote of con-
fidence for management." On June 8 a letter was dis-
tributed to all employees bearing the signature of Alex
Skulsky, president of Central Tool & Engineering Co.
The letter said that he had heard of the Union's attempt
to organize Respondent 's shop and that although the
Respondent was his competitor he would not like to see
a misfortune befall it. Skulsky said that he had once been
an organizer for a union and a shop steward in another die
plant . Later he became the owner of Falco Machine and
Tool in Los Angeles and was prospering until "a union
was introduced into our plant." Skulsky then went on to
say that a union would not benefit the employees and that
Respondent' s management was doing all that it could to
better wages and working conditions . Near the close of
this communication , Skulsky said:
You have the alternative to accept or reject a union
as protected by law and country, but the employees
of Falco chose a union and found themselves heading
down the road to self-destruction . Petty grievances
and gossip will be expanded , all out of proportion to
their intent, thus resulting in constant bickering and
inefficient use of time . Todays' market is no different
than it found us in 1958 and inefficiency is a killer
and that is what caused Falco to die.
On June 8, Fink again wrote to individual employees
and, noting that this was his last opportunity to commu-
nicate with them before the election , said that the
Respondent need not agree to any union proposal; that
when a union demand was rejected the Union's only al-
ternative was to call a strike. Urging the employees to
disbelieve union claims that a strike could not happen, he
asserted , "It could happen especially when that union is
the U.A.W. They have called many strikes- some of
them long, brutal and bloody ." Enclosed with the letter
was a copy of a publication issued in April 1955 by the
Kohler Company of Kohler, Wisconsin , describing in
detail and portraying in photographs Kohler's view of the
violent strike which began there in 1954.
On June 10 , the day before the election, President
Weitzel , then being in Rhode Island, telephoned the plant
in Los Angeles and spoke to the employees through some
sort of public address system. In this talk Weitzel
described Respondent' s history and steady growth and
said that a union would not be helpful . Weitzel pleaded:
Fellows -if we have problems, let's solve them our-
selves. That is why we have our shop committee . . .
that is why we have appointed Howard Berno as
our personnel manager . We can communicate. We
can talk together. We can resolve our problems.
What do we need a union for. Maybe they need a
union at Ford or General Motors where the men can
never talk to top management because the company
is so big ... it is tougher to communicate under those
circumstances , but I know everyone of you by your
first name and I always have and so does Mike Fink.
Later in his talk, Weitzel said , " In the event the union
should win the very life of this company- my job- your
job - all our jobs - would depend upon our resistance to
any economically unsound demand ." The talk ended
when Weitzel said , "If you vote for the union, you are
saying that I don't deserve to keep my business. A vote
for the union is a vote against me personally . . . there
is no other way to look at it."
Beginning in late February and continuing thereafter
until the election, union supporters sought to have em-
ployees sign cards designating the Union as bargaining
representative . The cards were simple and clear in form
and purported to be nothing more or less than an
authorization to the Union to represent the employees in
collective bargaining . At the time that the Union
158 DECISIONS OF NATIONAL
requested recognition and invited the Respondent to test
its majority status by having designation cards checked
by an impartial agency the Union had 68 signed cards. At
most there were 115 employees in the bargaining unit.
Clearly, the Union had obtained signed designation cards
from a majority of the employees. The Respondent con-
tends that in many cases card signers believed that they
were doing no more than enabling the Union to bring
about an election. In support of this position, the Re-
spondent adduced testimony from a number of super-
visors, from General Manager Fink and from Superin-
tendent Howland in which employees who already had
signed cards were quoted as saying that they did not want
a union in the plant. Some of the employees attending the
union meetings testified that they recalled nothing of what
was said except that an election would eventuate. A few
employees testified that they signed the card without
reading the language authorizing the Union to represent
them. I think it unnecessary to set forth in any detail the
testimony offered by the Respondent thus to attack the
efficacy of the designation cards, but I have considered
all of it. For the most part, as Superintendent Howland
asserted, these employees were intelligent and, even if
they lacked sophistication in the field of labor-manage-
ment relations, I am not persuaded that any employee in
signing a designation card was unaware that by doing so
he was choosing a bargaining representative. There was
much talk about an election at the organizing meetings
and at the plant. The record reflects some testimony to
the effect that some employees were told that the sole
purpose of signing cards was to bring about an election.
I do not credit this testimony. The plain language on the
cards makes no reference to an election and I find that
there is no substantial evidence to support a conclusion
that the card signers were misled or misinformed in con-
nection with signing cards. I think that the only reasona-
ble and rational conclusion to reach about a person who,
in the absence of fraudulent misrepresentations , signs a
card which clearly authorizes a union to represent him is
that he intended by that act to get that representation. He
may be aware that he is unlikely to get it without an elec-
tion but that is merely a step toward a goal. One who
preferred not to have a union would probably prefer also
not to have to have an election and would not sign a card.
Putting the matter to the test of balloting might bring in
what he does not want- a union.
I find that on March 12, 1965, the Union was
designated as bargaining representative by a clear majori-
ty of Respondent's employees in the appropriate unit.4
The Respondent argues further, however, that even if
a majority of the employees had knowingly designated the
Union to represent them, the Respondent had good
reason to doubt that the Union had attained such a mea-
sure of success. This assertion of good-faith doubt is
premised in substantial measure upon the appraisal of em-
ployee sentiment made by General Manager Fink and Su-
perintendent Howland about March 15 or 16 after hear-
ing unsolicited comments from employees about their
4In his Decision and Direction of Election after hearing upon the
representation petition filed by the Union on March 22, the Regional
Director found the appropriate unit to be
All production and maintenance employees employed by the Em-
ployer at its Los Angeles, California , plant, including the production
liaison employees, inspectors, inspector trainee, and draftsmen tool;
but excluding all office clerical employees, professional employees,
guards, watchmen and supervisors as defined by the Act.
LABOR RELATIONS BOARD
feeling toward the Union and listening to the reports
relaying such employee comments from lower super-
visors. Based upon this information, Fink concluded,
about March 15, that 40 employees were opposed to the
Union, 27 favored it, and 27 were undecided. Although
I do not credit the testimony of Respondent's witnesses
that employees were not questioned about their feelings
toward the Union and later in this decision will set out
specific instances of interrogation in this field, I think that
the lack of good faith on the part of Respondent was
demonstrated even before the Union made any demand
upon it. It will be recalled that on March 8, most of the
employees were given a wage increase. Of course it was
the Respondent's right to review its wage structure at any
time it chose to do so and to take whatever action that it
thought best. Fink testified that he had reason to believe
in December 1964 that Respondent's wage rates might
require adjustment, but action to bring this matter to deci-
sion was desultory. Not until late February were com-
parative wage data gathered and not until early March
was decision reached about the wage changes. Consider-
ing Respondent's knowledge of the efforts by the Union
to organize its employees, I think it to be no coincidence
that the wage rates were made effective on March 8. I
find that the Respondent used the device of the wage
raise to dilute whatever interest in the Union had been en-
gendered among its employees.
I think that any doubt concerning the purpose and in-
tended effect of the wage raise is resolved by the action
of President Weitzel on March 9 in directing the em-
ployees to form a grievance committee to deal with him
and suggesting that in this fashion employee problems
could be solved within the plant without outside inter-
ference. The wage raise and the formation of the
Grievance Committee took place of course before any de-
mand for recognition had been made upon the Respond-
ent. These actions were taken, I am convinced and find,
for the purpose of persuading the employees that a union
was not needed and bespeaks a fear that the Union was
achieving some measure of success in its organizing
goals.
Perhaps not wholly assured by the mathematical com-
putations the Respondent undertook in connection with
its appraisal of union sentiment, it persisted in telling
them that the selection of a union was the road to disaster.
On May 12, as has been stated in a letter to individual
employees, General Manager Fink said, in effect, that
three employers, Falco, Mars, and Alba Engineering had
gone out of business because the Union had organized
their employees. On the witness stand in this proceeding,
Fink confessed that he had no knowledge of what cause
these enterprises to cease existence. The letter from Alex
Skulsky distributed to employees a day or two before the
election, describing the fate of Falco, was solicited by
President Weitzel. There is no evidence in this record to
establish that the assertions in that letter concerning the
reasons for Falco's discontinuance are valid. Weitzel did
not testify nor did Skulsky. Fink, as has been said, had no
This finding constituted a rejection of the contention of the Respondent
voiced at the representation hearing and again before me that employees
of all similar employers in Southern California should be within the unit's
reach. However, no appeal was taken from the Regional Director's unit
finding and the question may not now be relitigated In any event, the unit
described is clearly appropriate for purposes of collective bargaining. I so
find it to be.
MECHANICAL SPECIALTIES CO. 159
knowledge about the matter. So the Respondent
deliberately sought to plant fears in the hearts of its em-
ployees based upon alleged business disasters which it
could not substantiate. I find that the Respondent at no
time took an introspective view to discover whether it
had a good-faith doubt or a doubt of any sort concerning
the majority status of the Union. The Respondent saw the
Union as a threat to its way of dealing with its employees.
The thought that the employees might desire to have
union representation was not acceptable.
Alfred Cantrell, a machinist on the night shift, testified
that in early March General Manager Fink asked him if
he would divulge the names of other employees who had
attended the February 28 organizing meeting. Fink added
that he would like to have a "little kickback" on the union
campaign. Cantrell answered that the Union was trying
to learn if the employees wanted to have representation
and, in answer to Fink's question, said that he favored it.
Cantrell declined to say who had attended the meeting.
Fink testified that he knew of the Union's campaign but
that Superintendent Howland had reported to him that
the intensity of union activity was not "alarming." On
March 12, Fink conceded, he asked Cantrell if there was
truth in the rumor afloat about a union. Cantrell answered
that he had attended union meetings and that he believed
unions to be beneficial but that none was needed in the
Respondent's shop. Fink denied making any inquiry on
this occasion about who attended meetings or asking for
any "kickback" on union activity. I credit Cantrell.
Respondent's officials, Fink prominent among them,
were eager to learn of the Union's progress. The proba-
bility is that Fink questioned Cantrell as the latter
testified.
Also in early March, according to Cantrell, Berno
brought a stranger to his work station and introduced
Cantrell as the strongest union man in the plant. Cantrell
then had a conversation with the stranger who questioned
him about his attitude toward the Union. Berno testified
that the "stranger" was his friend, Howard Schwartz, a
university professor, who asked Cantrell something about
the work that Cantrell was performing on the milling
machine. While Schwartz and Cantrell were conversing
Berno left. Later he learned that Cantrell had told
Schwartz that the shop was a good place to work but that
a union was needed in the area. Berno denied that be
mentioned the Union when he introduced Cantrell and
testified that he was unaware at the time what Cantrell's
attitude toward a union might be. I credit Cantrell. This
rather slight incident is not one which would probably
result from inventive imagination. From Cantrell's stand-
point he had really nothing to gain by the acceptance of
his testimony. The record is clear that he was a union sup-
porter and that his attitude was well known to the
Respondent. It does, however, affect Berno's credibility.
I was convinced as I heard him testify as I am now that
what he told from the witness stand was what he thought
might serve to absolve the Respondent of unfair labor
practices.
Irving Klein, a toolmaker who was an active supporter
of the Union during the campaign, testified that in
mid-March Superintendent Howland asked him what he
thought the Union could do for the Respondent. Klein an-
swered that the function of the Union would be to help
the employees rather than the Employer. Howland then
commented, according to Klein, that the Respondent was
faced with three choices: (1) To bargain with the Union,
(2) to fight, or (3) to close. Later in the month, Klein
testified, Howland told him that there must be no cam-
paigning during working hours and commented, "You
don't look like a professional organizer." Early in April,
Klein recalled, Howland said that a union would make it
impossible for the Respondent to compete and would
thus drive it out of business. Furthermore, Howland con-
tinued, the Respondent would not be permitted to give
compassionate treatment to aging employees; could not
assign them to less arduous or demanding duties.
Howland testified that he criticized Klein in March for
talking too much on the job and did say that Klein did not
have the appearance of a professional organizer.
Howland denied saying anything about a possibility that
the Union would not permit the Respondent to assign
work as it had in the past. He made no mention of the
three choices open to the Respondent about which Klein
testified. The only portion of Klein's testimony directly
denied by Howland is that relating to job assignment. In
testifying about this Klein was able to remember the
names of the three employees which Howland chose as
examples. I think that Klein's recollection is both accu-
rate and complete. I credit his testimony. Perhaps it is ap-
propriate to comment at this point that I thought
Howland to be in many respects a credible witness. Only
when the rub was strongly against the grain of Respond-
ent's interests did his testimony appear to me to be
somewhat less than truthful.
All of the supervisors who were called to the stands
testified that they were instructed not to question em-
ployees about their union attitudes or activities and that
this instruction was followed. Robert N. Woods, the chief
;nspector, testified that in late February Howland told
him that there was a lot of union activity in the shop and
asked Woods to keep his eyes and ears open as Howland
would like to know what was going on. Other supervisors
testified to the same effect. The testimony of the super-
visors is that employees volunteered their feelings about
the Union and that this intelligence was passed up
through channels to General Manager Fink. However, a
number of employees, Cantrell, Klein, Kirk Reigler,
Jackie Virgil, Anders Ahlstrom, and Thomas Booze
testified that either Fink or Howland or a lesser super-
visor asked them if they had signed a card or attended a
meeting or favored the Union. I credit this testimony to
the effect that at least some of the employees were sub-
jected to questioning about the Union. Knowing that
Howland desired such information it is highly likely that
the supervisors sought it out for him in the simplest and
most direct way- by questioning those under their super-
vision.
I find that in late February and in March the Respond-
ent questioned some of its employees concerning their
interest in the Union and that, because some of this
questioning was in a context of threats that a union might
force the Respondent out of business, it constituted inter-
ference with, and restraint and coercion of, employees in
violation of Section 8(a)(1) of the Act.
Throughout the period preceding the election, as has
been detailed above, the Respondent sought to implant
5 With the exception of Franz Isak , general foreman He testified that
he asked employee Kirk Reigler how he felt about the Union Another ex-
ception is Leadman Zeman. His testimony that he reported to Howland
what he could get out of an employee named Osdale indicates interroga-
tion. I do not credit the lame amendment immediately mouthed by Zeman
that what he meant to say was that Osdale volunteered information to him.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fear that the success of the Union might well mean the
destruction of Respondent's business. Obviously the
result would be the loss of employment. At the same time
the Respondent tried to blunt the appeal of the Union by
tactically timed wage increases. Finally it attempted to
satisfy whatever desire for representation was being
manifested among the employees by prescribing a
placebo -the Grievance Committee. That this organiza-
tion was wholly the creation of the Respondent is obvi-
ous. That its purpose was to divert the interest of the em-
ployees away from the Union and to give them an illusion
that the Respondent was indeed willing to grant them
representation is no less so. Meetings of the committee
were called by Fink. Its membership met only in the
presence of management. The Respondent created,
dominated, and controlled the Grievance Committee.
The Respondent thus engaged in unfair labor practices
within the meaning of Section 8(a)(2) of the Act. By the
creation and use of the Grievance Committee, by at-
tempting to induce the fear that the selection of the Union
would result in the closing of the business and the loss of
employment, and by using the device of wage increases
the Respondent tried to frighten, cozen, and allure the
employees away from chosing the Union as bargaining
representative. The Respondent thus interfered with,
restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
Given this complex of circumstances, counsel for the
General Counsel argues, the Respondent should be
required to extend recognition to and to bargain with the
Union even though the election on June I 1 resulted in a
vote unfavorable to it. I have found that a good-faith
doubt that the Union represented a majority was not a fac-
tor in Respondent's rejection of the union bargaining re-
quest; the Respondent was determined to avoid bargain-
ing and deliberately and consciously committed unfair
labor practices so that such a duty would not devolve
upon it. The General Counsel's contention could be ac-
cepted and implemented summarily if the Act had as its
purpose the punishment of those who engaged in unfair
labor practices. But what is at stake, of course, is the right
of employees to be represented by a bargaining represen-
tative of their choice or if they prefer, to deal as in-
dividuals with their employer. If the Respondent is or-
dered to bargain then the arithmetical result of the elec-
tion must be held not to have been a reliable expression
of employee choice. If no such order issues, then the
designation cards which a majority of the employees
signed must be held to be unpersuasive evidence of em-
ployee sentiment. Decision must be predicated upon an
assessment of what most reliably indicates the desires of
a majority of the employees. It is a truism that there is no
satisfying substitute for secret balloting conducted under
what are sometimes termed laboratory conditions. But
such conditions did not prevail and likelihood approaches
certainty that the voters carried with them to the polls the
uneasy awareness that if they voted for the Union they
would not only be saying that President Weitzel did not
deserve to keep his business (as he had stated just the day
before) but perhaps more importantly would be risking
the survival of the business which gave them employ-
ment. The latter was the argument around which Re-
spondent's campaign against the Union centered. I am
convinced and find that the election on June 11 did not
reliably reflect the free and uncoerced desires of Re-
spondent's employees and I will recommend that it be
set aside.
I have found that the designation cards signed by
Respondent's employees were not obtained by fraud, arti-
fice, or misrepresentation. Lacking a reliable alternative
gauge of employee sentiment and will, I find that the
designation cards signed by a majority of Respondent's
employees in the appropriate unit establish the Union as
the exclusive bargaining representative of such em-
ployees. It follows and I find that Respondent's refusal on
March 19, 1965, to recognize and bargain with the Union
was a denial of employee rights guaranteed in Section 7
of the Act and that the Respondent thereby has engaged
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
Alfred N. Cantrell, a milling machinist on the night
shift, was hired in April 1964 and terminated slightly
more than a year later on May 11. All of the work that
came to Cantrell for milling resulted from the needs of the
toolmakers on the day shift. Cantrell was an early and
stout supporter of the Union and the Respondent was
well aware of this.
Superintendent Howland testified that it was his deci-
sion to end Cantrell's employment and that he did so sole-
ly because the amount of work coming to the milling
machine on the night shift was insufficient to justify his
continuance. Howland explained that in the spring of
1965 fewer toolmakers were employed than in the com-
parable seasons of 1964 and 1963 with the result that the
need for a milling machinist on the night shift lessened.
Howland conceded Cantrell's competency and testified
that the minor criticisms he had voiced to Cantrell on oc-
casion were not operative factors in the decision to
discharge him. Both Howland and Cantrell testified that
in January 1965 Howland offered to transfer Cantrell to
the jig bore operation and that Cantrell, expressing his
preference for the milling machine, declined the opportu-
nity. Cantrell testified that he possessed the requisite
competency to do the jig bore work; Howland testified
that he was unaware of this, assumed that Cantrell did not
have any appreciable experience in jig bore work, and
supposed that Cantrell would have to be trained for about
2 years or even longer to acquire the skills of a jig bore
man.
Near the end of his shift in the early hours of May 11
Cantrell received his notice of layoff from Paul Mansfield,
a jig bore operator who was substituting for the absent
foreman, Walter Payton. According to Cantrell, Mans-
field said something to the effect that Cantrell was not
being treated fairly and that the layoff served to convince
Mansfield of the need for a union. Mansfield denied that
he said anything of the sort. I credit Cantrell. Mansfield
signed a union designation card in early March and
mailed it to the Union about a month later. It was
probably soon after he signed the card, Mansfield
testified, that he told his foreman, Walter Payton, that he
did not want a union in the plant. No doubt that is what he
wanted Payton to think, but his subsequent act of mailing
the card to the Union more reliably indicates that until
that time, at least, he favored having a bargaining
representative. It seems probable to me that Mansfield
denied making the remarks attributed to him by Cantrell
because he was embarrassed that the Respondent should
learn now what his true attitude had been. This resolution
does not, however, aid the General Counsel in establish-
ing that Cantrell's discharge was discriminatory. The
words used by Mansfield do not amount to a concession
MECHANICAL SPECIALTIES CO.
that Cantrell's union activity contributed to his discharge
and even if they are so construed there is nothing to sup-
port a conclusion that Mansfield had any part in this deci-
sion. From all that appears, he did no more than hand
Cantrell a notice issued upon the authority of Howland.
In the late afternoon of May 11, Cantrell returned to
the plant and spoke to Fink and Berno. He was told that
his discharge was occasioned by the necessity to reduce
the working force. Cantrell asked how that could be when
the Respondent was contemporaneously advertising for
machinists. Fink denied that there was any such advertis-
ing but Berno corrected him. The Respondent for a
period of several days surrounding May l 1 was advertis-
ing in the Los Angeles newspapers for "MACHINIST-
Jig bore." Fink told Cantrell to take the matter up with
Howland. Cantrell left the plant and took no further steps
to persuade the Respondent to keep him on. Howland
conceded that a jig bore machinist was hired later in May,
explaining that he hired an experienced man and that this
was a qualification he did not know Cantrell to possess.
That the Respondent was actively hostile to the at-
tempt of the Union to establish itself as bargaining
representative is crystal clear. Given that circumstance,
the dishcarge of a competent employee known to be one
of those strongly supporting the Union invites scrutiny of
motivation. Respondent's need for employees possessing
machinist skills no doubt fluctuated and it is a practical
certainty that at times it found itself overstaffed. Skilled
employees, however, are not always easily recruited and
in recognition of this the Respondent pays a bonus of $50
to any employee who is responsible for bringing in a
suitably skilled applicant for employment who proves
after a probationary period to be acceptable. At the time
of Cantrell's discharge the plant was affording substantial
overtime to both the daytime and nighttime workers. This
arrangement may have developed in part to keep em-
ployees content by enhancing their earnings but it is
reasonable to believe also that it reflected Respondent's
production needs. Howland testified that the flow of work
into the plant had lessened in late April and early May
with the result that total hours had been reduced by 190
in one week and by 269 in the week following. This would
appear to be due at least partially to a lack of sufficient
help in the jig bore department. In early May the Re-
spondent was advertising for more jig bore machinists.
Howland testified that Cantrell was not replaced and that
the work he had been doing on the milling machine on the
night shift was thereafter accomplished by workers on the
day shift.
When Howland decided to terminate Cantrell, he knew
that Cantrell had performed competently as a milling
machinist and that Cantrell preferred such work. At one
point in his testimony Howland said, candidly, that he did
not know whether Cantrell had jig bore experience.
Whether Cantrell in fact possessed the skill and ex-
perience to make him acceptable to the Respondent in the
capacity of a jig bore operator remains an unanswered
question. That in January Howland was eager to have
him do jig bore work is evidenced by the fact that after
Cantrell had declined the opportunity presented by
Foreman Payton, Howland himself questioned Cantrell
in an attempt to get him to reconsider. So there is reason
to believe that Howland appraised Cantrell as one who
6 Victor Stone, a lathe machinist, who was hired in early April, was laid
off on the same date as Cantrell and assertedly for the same reason I have
considered this circumstance in reaching my conclusion about Cantrell's
161
had the capacity to do jig bore work. This leaves un-
resolved the question of whether Cantrell could take over
such work without a substantial period of training. The
sum of Howland's testimony is that he just did not know.
But he did know that he needed help in the jig bore opera
tions, he did know, he said, that he no longer needed a
milling machinist on the night shift, he did know that Can-
trell was a competent machinist, and he did know that
qualified men were hard to find. Cantrell was not a long-
time employee but he had worked more than a year for
the Respondent and had performed satisfactorily.
Howland testified that he had heard earlier that Cantrell
had a purpose to return to Tennessee and that he took
some comfort from this as it made the task of termination
less distasteful. He made no attempt to verify this infor-
mation by asking Cantrell about it.
For the period of his employment Cantrell worked a
54-hour week and was occupied 90 percent of these hours
in milling machine work. On his last 2 days at work he put
in 10 and 8 hours, respectively. Although Howland
testified that he no longer needed a milling machinist on
the night shift, he attributed this development to a grad-
ual change in the character of the work Respondent was
performing. There is just nothing in this record beyond
this to support a conclusion that on May 11 an employee
who had been working 54 hours a week abruptly became
unneeded. I do not believe that the amount of milling
machine work being performed in the plant decreased so
suddenly. If it was absorbed by day-shift workers some
realignment of duties must have been entailed. Accepting
Howland's testimony that no new milling machinist was
hired, nonetheless someone had to perform the work
which was no longer assigned to Cantrell.
I believe that Cantrell was maneuvered out of his job
in order to remove a vocal advocate of the Union from
the plant and thus to lessen the Union's chance for suc-
cess in the election. The reason given for Cantrell's ter-
mination, especially with the attendant circumstance that
Howland did not attempt to learn if Cantrell could fill the
jig bore vacancy, does not ring true. Viewing this
discharge in the light cast upon it by Respondent's con-
temporaneous campaign against the Union, marked as it
was by a variety of threats and allurements intermixed
with the establishment of the Grievance Committee, I
find that by the discharge of Cantrell the Respondent
sought to discourage membership in and activity on be-
half of the Union, and that the Respondent thereby en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.6
Irving Klein, a toolmaker, was hired in August 1964
and was discharged on June 25 in the following year.
Klein was an active supporter of the Union and solicited
other employees to sign designation cards. Effective
March 8 he was given a wage increase of 15 centsan hour
and when Superintendent Howland told him about this he
also commented, according to Klein's uncontradicted and
credited testimony, that he considered Klein to be a "top
man."
On June 21, Klein testified credibly and without con-
tradiction that General Foreman Isak said he was not
planning his jobs properly with the result that too many
hours were being expended on them. Klein replied that he
could not be held responsible for the hours used by other
discharge . It may well have been that the Respondent had no need for a
lathe machinist for a period beginning May 11 (Stone was rehired in
July).
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. On June 25 Isak told him that he had been
"following him around" and that Klein was too slow.
Klein was then discharged.
Isak was not questioned about the discharge or the
warning of June 21. Isak testified that some time in
March he told Klein that he was talking too much on the
job. It is fairly inferable from Isak's testimony that he told
Klein his work was suffering on that account.
In the Respondent's shop when a complicated gauge is
to be manufactured, a toolmaker is given a blueprint of
what is desired and told to get it done. Usually, if not al-
ways, the toolmaker is told of the number of man hours
estimated to be sufficient for completion. The toolmaker
attempts to keep within his estimate or to better it. After
determining how the gauge should be built, the toolmaker
orders the necessary materials and indicates the work to
be done away from his bench. He may do some of the
milling or send it to a milling machinist. If jig bore work
is entailed, this will be done by someone assigned by the
jig bore leadman. When the job is complete the estimated
hours become actual hours for which men are paid. If the
actual hours exceed the estimate there is a "loss" on the
job; otherwise there is a "profit." Obviously, the estimate
can be met, lessened, or exceeded depending upon a
variety of factors. If the toolmaker working at his bench,
the lathe machinist, the milling machinist scraps material
or in some other fashion uses excessive hours, waste
results. If the estimate is unreasonably low, in all
likelihood it will not be met. Under Respondent's system
of classifying jobs as profitable or not, only the final result
is considered in labeling the work of the toolmaker. If a
maladroit jig bore machinist ruins a part on which many
hours of work have been expended, the hours are wasted
and the job is well on its way to becoming a loser. If,
through some brilliant improvisation, a lathe machinist
finds a way to save many hours on a job, the probability
of showing a profit is enhanced. In neither of the exam-
ples postulated does any action or inaction on the part of
the toolmaker influence the result. Over a period of years
I suppose that it may be possible through this system to
find a reflection of a sort of rough justice. The miscalcu-
lated estimates and the misfortune of others' mistakes will
average out. The more competent toolmakers will show
a more consistent pattern of profitable job performance.
Superintendent Howland testified that in December
1964 he told Klein that he was losing money on the jobs
assigned to him. Respondent's records show that in early
December there was an indicated loss of $1,238 on one
of Klein's jobs. Thereafter, for a few months, Klein's
profit statement was on the credit side. This encouraged
Howland, he testified, to give Klein a wage increase in
March. In April the loss on a job then completed by Klein
was set at more than $3,700. Klein spoke with Howland
about this complaining that the estimate was too low.
Howland conceded that it was without saying what per-
centage of the loss might be attributable to that circum-
stance. Klein's profit-and-loss statement thereafter shows
an almost unbroken string of losses ranging from $179 to
$839. Howland concluded, he testified, that, despite the
fact that Klein was a good mechanic and did work of good
quality, he did not have the potential to be a valuable em-
7 Counsel for the Union has filed a morally persuasive brief urging that,
because the Respondent by resort to unfair labor practices has prevented
its employees from having representation for a period now approaching 2
years, a genuine remedy would force the Respondent to give to employees
what bargaining would by now have gained for them in the area of wages.
I agree that the direction to bargain which is part of this Decision does not
turn back the calendar and that the employees are not by virtue of my
findings and recommendations compensated for the denial of statutory
ployee in Respondent's plant. Klein's discharge followed.
I am quite unconvinced that the Respondent used the
profit-and-loss calculations to appraise the competency
or performance of the toolmakers. The record, in my
view, demonstrates their unsuitability for that purpose.
My conclusion in this respect is strengthened by the cir-
cumstance that when one of Klein's jobs in April showed
what surely was a substantial loss, $3,767, Howland
voiced no criticism to Klein and, indeed, told him not to
worry about it. Howland is a knowing person, wholly
familiar, I am sure, with the problems arising in such a
plant as the Respondent operates. He no doubt knew why
the job showed a loss and he did not lay the responsibility
at Klein's door. The small losses which followed in May
and June did not move Howland to raise any questions
with Klein about his competency. Surely Howland knew
who the good toolmakers were, and it is significant that in
March, after Klein had been in Respondent's employ for
more than 7 months, Howland told him that he was a top
man. Howland said that because he believed it, and he
was in a position to know.
Although the Union lost the election on June 11 by a
margin which impelled President Weitzel to write to the
employees "to express how thrilled" he was, the Re-
spondent could have reasoned that it was not yet finally
free of the Union's presence. Objections to the election
were filed on June 17. The Respondent had counsel and
must quickly have learned that if the objections were
sustained another election might be held. Howland had
indirectly suggested in March that Klein might be a pro-
fessional organizer and, even if he did not believe that
Klein was on the Union's payroll (he testified that he
did not), he clearly regarded Klein as one who was
attempting to establish the Union as the bargaining
agent of Respondent's employees. The Respondent had
reason to believe that, if the election were to be set
aside, Klein would again be among those urging the
employees to vote for the Union.
Disbelieving Respondent's proffered reason for Klein's
discharge, considering Respondent's continuing search
for skilled employees, and appraising the discharge in the
light of Respondent's unlawful conduct in opposition to
the attempts by its employees to obtain representation, I
conclude that Klein was discharged to discourage such
activity. I find that by the discharge of Klein the Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) 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 its operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY7
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that it
rights which they have suffered However, Section 8(d) of the Act forbids
me to tell the Respondent that it must retroactively pay the wage rates that
would likely have resulted from good-faith bargaining in 1965 and since
The Supreme Court has held in words too clear to permit speculation
about them that "the Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the substantive terms of
collective bargaining agreements." N.L R B v American National In-
surance Co, 343 U S 396.
MECHANICAL SPECIALTIES CO.
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies and purposes of
the Act.
Having found that the Respondent has unlawfully
refused to bargain with the Union as the majority
representative of its employees in the appropriate unit, it
will be recommended that the Respondent , upon request
of the Union, engage in collective bargaining with the or-
ganization and that any agreement reached be reduced to
writing and signed.
Having found that the Respondent has dominated and_
interfered with the formation and administration of the
Grievance Committee , it will be recommended that the
Respondent disestablish the Grievance Committee
completely as any sort of bargaining representative of its
employees.
Having found that the Respondent has discriminated
against Alfred Cantrell and Irving Klein by discharging
them, it will be recommended that the Respondent offer
to each of them immediate and full reinstatement to the
positions held before discharge , and that each be made
whole for any loss of earnings attributable to discharge.
Backpay shall be computed in the manner established by
the Board in F. W. Woolworth Co., 90 NLRB 289, and
shall bear interest calculated upon the formula adopted in
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Mechanical Specialties Company, Inc., Los An-
geles, California, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW-AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening the close of the business in the event
of union victory in the representation election and by
questioning employees concerning their union
preferences in the context of coercion, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
4. All production and maintenance employees em-
ployed at the Los Angeles plant, including the production
liaison employees , inspectors , inspector trainee, and
draftsmen tool, but excluding all office clerical em-
ployees, professional employees, guards, watchmen, and
supervisors as defined in the Act, constitute a unit ap-
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. On and since March 16, 1965, the Union has been
and now is the exclusive bargaining representative of
Respondent's employees in the appropriate unit and is en-
titled to bargain with the Respondent in respect to wages,
hours, and other terms and conditions of employment.
6. By refusing on March 19 , 1965, and thereafter to
recognize the Union and to bargain with it, the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8 (a)(5) of the Act.
7. By dominating and interfering with the formation
and administration of the Grievance Committee, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(2) of the Act.
8 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
163
8. By discriminating in regard to the tenure of employ-
ment of Alfred Cantrell and Irving Klein , the Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law that Respondent,
Mechanical Specialties Company, Inc., Los Angeles,
California, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees within a curtailment or
cessation of operations in the event of a union election
victory, questioning employees in a coercive context con-
cerning the Union or activities on behalf of the Union,
discharging employees because of union membership,
preference , or activity, granting wage increases to dilute
union interest , or in any other manner interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization , to form labor organizations, to
join or assist International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW-AFL-CIO, or in any other labor or-
ganization , to bargain collectively through representa-
tives of their own choosing , and to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
or all such activities , except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
(b) Refusing upon request to bargain with the Union
as the exclusive representative of employees in the ap-
propriate unit.
(c) Giving the Grievance Committee any status as
bargaining representative of employees.
2. Take the following affirmative action , which I find
will effectuate the policies of the Act:
(a) Upon request, bargain with the Union in respect to
wages, hours, and other terms and conditions of employ-
ment and, if an agreement is reached , reduce it to writing
and sign it.
(b) Withdraw recognition from and completely dis-
establish the Grievance Committee as the representative
of employees for any bargaining purpose.
(c) Offer to Alfred Cantrell and Irving Klein im-
mediate and full reinstatement each to his former or sub-
stantially equivalent position , without prejudice to
seniority or other rights and privileges previously en-
joyed , and make each of them whole for any loss of
earnings suffered in the manner set forth in that portion
of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary for determining the amount of backpay
due under the terms of this Recommended Order.
(e) Post at its plant in Los Angeles, California , copies
of the attached notice marked "Appendix."$ Copies of
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
164 DECISIONS OF NATIONAL
said notice, to be furnished by the Regional Director for
Region 31, Los Angeles, Calfornia, after being signed by
an authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to en-
sure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Recommended
Order what steps Respondent has taken to comply
herewith.9
IT IS FURTHER RECOMMENDED that the Board dismiss
the petition in Case 31-RC-14 and vacate all
proceedings in connection therewith.
9 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT attempt to discourage membership
in or activity on behalf of International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of, America , UAW-AFL-CIO, or
any other labor organization of our employees, by
granting wage increases , threatening a lessening of
work opportunity , or closing of our business, or by
discharges , or by any other sort of discrimination
relating to hire or tenure of employment or any term
or condition of employment.
WE WILL NOT impose upon our employees any
bargaining representative or unlawful substitute
therefor and will immediately disestablish the
Grievance Committee.
WE WILL, upon request , bargain collectively with
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America,
UAW-AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described
below concerning rates of pay , wages, hours of em-
ployment, and other conditions of employment, and,
LABOR RELATIONS BOARD
if an understanding is reached , embody it in a signed
agreement . The bargaining unit is:
All production and maintenance employees em-
ployed at the Los Angeles plant , including the
production liaison employees , inspectors, in-
spector trainee , and draftsmen tool, but exclud-
ing all office clerical employees , professional
employees , guards, watchmen , and supervisors
as defined in the National Labor Relations Act.
WE WILL offer to Alfred Cantrell and Irving Klein
immediate and full reinstatement each to his former
or substantially equivalent position and pay each of
them with interest for any loss of earnings suffered
because of discharge.
WE WILL NOT by discharging employees, by grant-
ing wage increases , by threatening or predicting loss
of work opportunity or plant closure , by dealing with
the Grievance Committee , or in any other manner in-
terfere with , restrain , or coerce our employees in the
exercise of their right to self-organization , to form
labor organizations , to form , join , or assist Interna-
tional Union, United Automobile , Aerospace and
Agricultural Implement Workers of America,
UAW-AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all of such activity , except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as permitted by Section 8(a)(3) of the
Act.
MECHANICAL SPECIALTIES
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify any of the above-named employ-
ees presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 215 West
Seventh Street, Los Angeles, California, Telephone
688-5840.