Parkhurst Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1962

136 N.L.R.B. 872 (N.L.R.B. 1962)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from and by reason of the labor dispute at the Company's Daly City store , and the
parties represented by the persons signatory hereto are hereby released , one from
the other , from all sums of money , actions, accounts , claims and demands up to the
date and execution of the above stipulation.
------------------------------------------------
(CARL C0HEN0UR)
------------------------------------------------
(ROBERT W. NORTON)
Parkhurst Manufacturing Company, Inc. and General Drivers,
Warehousemen & Helpers Local Union 534, affiliated with the
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Cases Nos. 17-CA-1781 and
17-IBC-3469. April 6, 1962
DECISION AND ORDER
On November 15, 1961, Trial Examiner John C, Fischer issued his
Intermediate Report, finding that the Respondent engaged in certain
unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal as to them. Thereafter, the Re-
spondent and the General Counsel each filed exceptions with a
supporting brief.'
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.
ORDER
The Board adopts, with the addition set forth below, the Recom-
mended Order of the Trial Examiner as its Order?
'Respondent 's request for oral argument is denied because in our opinion the record,
exceptions , and briefs adequately set forth the position of the parties
2 Paragraph 2 of the Recommendations is supplemented by adding the following para-
graph between paragraphs ( a) and (b):
(aa) Upon request, bargain collectively with General Drivers, Warehousemen & Help-
ers Local Union 534 , affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America as the exclusive bargaining representative of
employees it is certified to represent.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by General Drivers , Warehousemen & Helpers Local
Union 534, affiliated with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, herein called the Union , the General Counsel
;136 NLRB No. 81.
PARKHURST MANUFACTURING COMPANY, INC. 873
of the National Labor Relations Board, by the Regional Director for the Seventeenth
Region, issued a complaint against Parkhurst Manufacturing Company, Inc., herein
called Respondent, alleging that it had violated Section 8(a) (1), (3), (4) and (5)
of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein
called the Act. With respect to the unfair labor practices, the complaint as amended
specifically alleges that Respondent interrogated applicants for employment about
their union membership, threatened employees if they selected the Union as their
bargaining representative, and posted a notice to all employees that only those who
voted against the Union in a Board-conducted election were to work the following
day. The amended complaint further alleges that Respondent refused to permit
employee Glenn Miller to work the day following the election because he had voted
for the Union, and threatened and physically assaulted said employee because of
his union activity, and because said employee filed charges or gave testimony under
the Act, thereby constructively discharging him. The amended complaint further
alleges that Respondent has refused to bargain with the certified bargaining repre-
sentative of its employees.
Respondent, by way of answer, as amended at the hearing, admits the filing and
service of the charge, the commerce allegations of the amended complaint, and the
fact that General Drivers, Warehousemen & Helpers Local Union 534, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the meaning of the Act. Further answer-
ing, Respondent admits that it posted a notice to all employees on its bulletin boards
that only those employees who voted against the Union in the election were to work
the day following. Respondent further admits in its answer, as amended, that a
secret ballot election was conducted under the direction and supervision of the
Regional Director for the Seventeenth Region of the National Labor Relations
Board on April 7, 1961, among the Respondent's employees in a production and
maintenance unit. Respondent also admits that of the approximately 30 eligible
voters 14 ballots were cast for the Union, 12 ballots were cast against the Union, and
4 ballots were challenged, and that the Regional Director conducted an investigation
of the challenged ballots pursuant to an agreement for consent election entered
into by the parties. Respondent further admits that the Regional Director issued
a report and determination on challenged ballots and certified the Union on May 22,
1961, as the exclusive collective-bargaining representative of all the employees of
the Respondent in a production and maintenance unit. The Respondent admits
that since said certification the Union has requested, and is requesting, the Respond-
ent to meet and bargain collectively with it with respect to rates of pay, wages,
hours, and other conditions of employment as the exclusive collective-bargaining-
representative of all the employees of the Respondent in said unit Finally, by
its answer, Respondent denied the commission of any unfair labor practice and
pleaded affirmative defenses.
At the hearing held before John C. Fischer, the duly designated Trial Examiner,
at Sedalia, Missouri, on July 26 and 27, 1961, the General Counsel, Respondent, and
the Union were represented by counsel. All parties were afforded full opportunity
to be heard, examine and cross-examine witnesses, and to file briefs. Since the
close of the hearing, briefs were received on September 11 from the General Counsel
and the Respondent which have been duly considered.
Upon the entire record in the case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, a Missouri corporation, with its principal place of business at
Sedalia, Missouri is engaged in the manufacture and sale of trailers and truck
bodies. In the course and conduct of its business the Respondent annually ships
products valued in excess of $50,000 to points outside the State of Missouri.
Respondent is now, and at all times material herein has been, an employer en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen & Helpers Local Union 534, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America is, and at all times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
.874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
Respondent's attorneys submitted to the Trial Examiner a comprehensive brief,
elaborately documented, consisting of 71 pages. At the risk of unduly lengthening
this report, but in view of legal principles and facts involved for decision by the
Board and/or the courts, the Trial Examiner will set forth verbatim cogent portions
of the briefs of the parties, testimonial and documentary portions of the evidence of
record, together with arguments of counsel, which are evidentiary in nature.
The Respondent carries on its manufacturing operations at two locations. One is
known as the main plant in Sedalia, Missouri, and the other, known as the farm
plant is located 4 or 5 miles west of Sedalia on a farm where Respondent President
William R. Parkhurst lives. The Company was founded in 1946 and conducted as a
proprietorship until January 1, 1961, when it was incorporated. The proprietorship
had carried on the manufacture of truck bodies, wagon boxes, and trailers, as well
-as operating an implement sales and distributorship and a rental service for equip-
ment and trailers. Subsequent to January 1, 1961, the corporation has engaged
-solely in the manufacture and sale of truck bodies, wagon boxes, and trailers. Even
though the sales and rental business is now operated separately from the manu-
facturing company, its operations are carried on in the main plant side by side and,
in some instances, integrated with that of the manufacturing company. Several of
the employees are common to all three companies. The employees of the sales
and rental operation spend approximately 50 percent of their time working for the
manufacturing company and are carried solely on the payroll of the manufacturing
"company.
Background and Respondent 's contentions as recited in its brief are:
A consent-election agreement was entered into the parties, under circumstances
related hereinafter, and approved by the Regional Director on March 6, 1961. On
April 7, 1961, a secret election was conducted at the plant of the Parkhurst Manu-
facturing Company under the direction of the Regional Director and the supervision
of a Board agent.
The bargaining unit agreed upon by the parties was to be composed of "All pro-
duction and maintenance employees, excluding office clerical employees, guards, pro-
fessional and supervisory employees as defined in the Act."
Following the election, the Regional Director caused to be furnished a tally of
ballots which showed that of the approximately 30 eligible voters, 14 ballots were
cast for Local Union 534, 12 ballots cast against the Union, and 4 ballots were
challenged. Since the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director purported to conduct an investigation
of the challenged ballots and issued a report and determination on challenged ballots
and objections to election on May 22, 1961.
The four challenged ballots were those of Harold Williams, Byron Oswald, H. E.
'Logan, and Larry Mahnken. The Union challenged Harold Williams on the grounds
that he was an "office worker," Byron Oswald as a "supervisor," H. E Logan as a
"salesman," and Larry Mahnken on the grounds that he had been "laid off "
The Regional Director in his determination dated May 22, 1961, found that (1)
Williams was a supervisor; (2) Oswald was more nearly identified with management
(whatever that means); and (3) Logan was a salesman for the farm implement
dealership and therefore not properly within the bargaining unit He upheld the
challenge to these three ballots-principally on grounds different from those given
-for challenge He stated that since the fourth ballot, namely, that of Larry Mahnken,
could not affect the results of the election, he would not pass on that challenge.
Accordingly, he then certified the Union as the collective-bargaining agent under
the Act.
Thereafter, on May 26, 1961, the Company sent the following telegraphic request
for reconsideration and for a hearing to the Regional Director:
Employer in matter of Parkhurst Manufacturing Company (Case No 17-RC-
3469) excepts to the report and determination on challenged ballots and ob-
jections to the election and moves the Regional Director for reconsideration
and in connection therewith asks for a hearing as the determination is c-ntrarv
to the actual facts as set forth below There are substantial and material factual
issues involved and in dispute which can only be resolved by a hearing Em-
plover will establish at a hearing that (1) Williams is a truck driver who cannot
effectively recommend wage increases or hiring or firing. His salary is remon-
ably low for a truck driver with his seniority. (2) Oswald works in the plant
daily with repeated regularity when farm work is finished and has a community
Of interest with production employees. (3) Logan has direct and regular contact
PARKHURST MANUFACTURING COMPANY, INC. 875
and works with production employees and his duties are identical to Jerry
Nicholson who was included in unit and not challenged. Larry Mahnken is a
production employee whose duties are identical to Ziegelpein whose ballot was
not challenged . Obvious these two challenges made on basis of union mem-
bership. (4) Employer was affirmatively misled by representations of Board
Agent into executing a consent election agreement which purported to take
away his rights under the Act. Union and employer agreed upon the 30
employees to be included in the unit and agreed there would be no challenges.
Union affirmatively and with design misled employer into not challenging any-
one on agreed list and then union challenged on basis of union membership.
Such conduct vitiates consent election agreement.
On June 14, 1961, the Regional Director issued his ruling on employer's excep-
tions to and motion for reconsideration of report on challenged ballots and objec-
tions to election. Although he did not refer to employer's request for a hearing, he
denied employer's exceptions and request for reconsideration. (In so ruling, he
stated that, "The undersigned having considered the Employer's exceptions and
Motion for Reconsideration, and having carefully reviewed the evidence obtained
during the previously conducted investigation of challenged ballots and objections
to the election, and having found the Employer's exceptions do not present substan-
tial additional facts not previously considered or that would warrant changing the
previous determination."
On June 21, 1961, the Employer appealed from the Regional Director's ruling
of June 14, 1961, on the ground that the Regional Director's action was arbitrary
in that (1) it is contrary to the actual record and not supported by it; and (2) there
are substantial and material factual issues involved in dispute which could only be
resolved by a hearing; and (3) employer was induced by the representations of Board
agents to enter into a consent-election agreement which purported to take away many
of its substantive rights, contrary to the provisions of the National Labor Relations
Act, as amended.
This appeal was not allowed to go to the Board. By letter dated July 6, 1961,
Associate Executive Secretary George A. Leet stated that, "It is the firm policy of
the Board that where parties have entered into a consent election agreement, it will
not interfere when any of the parties indicate disapproval of the judgment exercised
by the Regional Director in ruling upon certain challenged ballots and objections
to the conduct of election." The letter stated this despite the fact that the appeal
(a four-page legal-sized document) pointed out wherein the Regional Director had
acted in an arbitrary and capricious manner.
As to the charge of misrepresentations on the part of the Board agent, Mr. Leet
dismissed them in cavalier fashion, stating that, "The only basis for alleging that
the Employer was misled by a Board agent into signing an agreement for a Consent
Election appears to be based on after thought."
JULY 19, 1961.
Re: Parkhurst Manufacturing Company, Case No. 17-RC-3469.
WILLIAM T. STEPHENS, ESQ.,
700 Washington Building,
Washington 5, D.C.
DEAR MR. STEPHENS: This is in reply to your telegram requesting reconsidera-
tion of the appeal filed in the above case.
As was stated in my previous letter to you, it is the long established policy
of the Board that it will not interfere with the Regional Director's action in
cases involving an Agreement for Consent Election. The terms of the agree-
ment specifically provide that the determination of the Regional Director shall
be final and binding on all parties. It is for this reason that the Board refused
to intervene or entertain appeals from the Regional Director's disposition of
objections or challenges in elections absent arbitrary or capricious conduct.
Sumner Sand t Gravel Company, 128 NLRB 1368; Riviera Mines Company,
108 NLRB 112. This policy has been consistently affirmed by the Federal
Courts of Appeal. N L.R B. v. Volney Felt Mills, Inc., 210 F 2d 559 (C A 6);
Buffalo Arms, Inc. v. N L R.B, 224 F. 2d 105 (C.A. 2); Semi-Steel Casting
Co. of St. Louis v. N L R.B, 106 F. 2d 388 (C.A. 8). Nor does the mere
alleeation of misrenresentation by a Board agent constitute reviewable grounds
of the Regional Director's determination nor establish that there has been
arbitrary and capricious conduct Elm City Broadcasting Corporation, 111
NLRB 980; 228 F. 2d 483 (C.A. 1). [Sic.]
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am sure you can understand that any other procedure would vitiate and
undermine the whole consent agreement process by which so many Board
elections are successfully held. If the Board intervenes , despite the parties'
agreement that the Director 's determination shall be final , it must do so without
benefit of a record of hearing. By charging arbitrariness , every party could
thus, having failed to win on the first round under the consent agreement, have
a second chance, through the Board, which in effect would nullify his earlier
consent. See Capitol Greyhound Lines, et al., 49 NLRB 156, enfd. 140 F. 2d
754 (C.A. 6). The Second Circuit Court of Appeals in the Buffalo Arms case,
supra, was quite critical of the Board in substituting its judgment for that of
the Regional Director.
In the absence of a clear or even close showing of arbitrariness , the Execu-
tive Secretary 's office has been authorized by the Board not to entertain an
appeal. In this case , it is noted that it was not until after the election was held
and the investigation of objections and challenges had commenced that the
charge of being misled was made.
I have cleared the application of these rules to your appeal and Motion for
Reconsideration and the Board supports the action previously taken.
In view of the foregoing , it is the position of the Board that it will not
entertain an appeal from the Regional Director 's decision.
Very truly yours,
(S) George A. Leet,
Associate Executive Secretary.
On July 7, 1961, in a telegram , the Employer protested the refusal -of the Execu-
tive Secretary 's office to submit the appeal to the Board . The telegram was as
follows:
Notwithstanding the contents of your letter of July 6, 1961 , it is a funda-
mental concept of administrative law that a party has a right to appeal from
inferior agency action where it is alleged that substantial and material issues
are involved and that the agent has acted arbitrarily . It is respectfully re-
quested that this appeal be submitted to the Board for its determination.
By letter dated July 19, 1961, Chairman McCulloch of the National Labor
Relations Board upheld Mr. Leet's position.
JULY 19, 1961.
Re: Parkhurst Manufacturing Company, Case No. 17-RC-3469.
WILLIAM T. STEPHENS, Esq.,
700 Washington Building,
Washington 5, D.C.
DEAR MR. STEPHENS: This is with reference to your telegram of July 11,
1961, concerning your appeal from the Regional Director's action in refusing to
bold a hearing in the above case and the letter you previously received from
Associate Executive Secretary Leet stating that the Board would not entertain
your appeal.
I have reviewed your telegram and discussed the matter with Mr. Leet and
he is writing you a separate letter stating the Board's position and the reasons
therefor. This letter is consonant with the well-established policy of the Board
and the courts involving Agreements for Consent Election.
Sincerely yours,
(S) Frank W. McCulloch,
Chairman.
In the meantime and subsequent to May 22, 1961, the Union had made at least
one request for the Employer to enter into bargaining negotiations with it. The
Employer had not consented as it contended that the certification was involved in an
appeal before the Regional Director and/or Board at all times material thereto
On or about April 13, 1961, the Union filed 8(a)(1) and (3) charges against the
Employer alleging that the Employer had violated the Act (a) by interrogating
applicants for employment concerning their union membership, threatening its em-
ployees with reprisal if the Union won the election, and posting a notice telling
only those who voted against the Union to report for work on Saturday, and (b) by
refusing to allow employee Glenn Miller to work overtime on Saturday because of
union activity.
On April 17, 1961, the Union filed amended 8(a)(3) charges alleging that Glenn
Miller had been threatened by the Employer and constructively discharged on
PARKHURST MANUFACTURING COMPANY, INC. 877
April 14, 1961. On June 7, 1961, a further amended charge was filed by the Union
contending that the alleged constructive discharge of Glenn Miller was also a viola-
tion of Section 8 (a) (4) of the Act.
On June 27, 1961, the Union charged the employer with violating Section 8(a) (5)
because it had refused to bargain with the Union.
On June 2, 1961, the Acting Regional Director issued a complaint against the
employer charging it with violations of Section 8(a)(1), (3), and (4) of the Act.
On July 13, 1961, the Regional Director issued an amended complaint in which he
added allegations that the Employer had also violated Section 8(a)(5) of the Act.
Hearing was held on the amended complaint before John Fischer, Trial Examiner,
Sedalia, Missouri, on July 26 and 27, 1961. All parties were represented by counsel.
Previously the Employer had filed an answer by telegram to the amended com-
plaint. The telegram was as follows:
Comes now the employer by his counsel and (1) objects to gross im-
propriety of the Regional Attorney, knowing that employer was represented by
counsel, in contacting the respondent employer personally without the presence
of counsel, and purporting to obtain respondent's answer to the amended com-
plaint orally and (2) files the following answer to the amended complaint.
Paragraphs VII, VIII, XIV, XV, XVI, and XVII are denied.
Paragraphs X, XI, XII and XIII are admitted, however, (a) the consent
.election agreement is invalid as it was obtained by misrepresentations of a
Board Agent and (b) respondent did not violate Section 8(a) (5) of the Act as
(1) Regional Director's decision on challenged ballots was arbitrary
and 'capricious as he refused to consider material evidence , is contrary to
fact and as respondent was denied a hearing to resolve dispute on substantial
and material issues.
(2) The certification of the union as a bargaining agent was not in
conformity with the policies of the Board, the Act, or due process under
the Constitution.
(3) The bargaining unit as determined by the Regional Director is not
an appropriate unit under the Act in that it excludes employees with iden-
tical responsibilities and duties to those of employees included in the unit.
(4) No duty to bargain as the question regarding the challenged ballots
was still pending at all material times before the Regional Director and/or
the Board.
Execution of the Consent-Election Agreement
If Mr. Parkhurst were allowed to testify, he would testify that Mrs. Maher, a
field examiner of the Board attached to the Seventeenth Region, told him that
there was no difference as far as his rights were concerned between entering into a
consent-election agreement or proceeding to hearing before a hearing examiner on
the question of the appropriate unit and any other questions. He would also testify
that after he had informed her that for business reasons it was difficult for him to
agree to a date in March, she also told him if he signed a consent-election agreement
that he would have more time before the election was held and that the election
would be held at a later date. She further informed him that if he signed the
consent-election agreement the election would be held in April as he desired. She
did not inform him that there were two types of consent-election agreements. She
did not inform him that he was waiving his rights to a hearing on the question of
challenged ballots or objections to the election. She did not inform him that the
Regional Director's decision would be final in this matter. She indicated to him that
his relations with the Seventeenth Region would be much better if he did sign this
consent-election agreement. Had she told Mr. Parkhurst the truth and disclosed the
fact that he would be deprived of a hearing, and that the Regional Director's deter-
mination in all of these matters would be final, but that he could obtain a bearing
in the matter if he did not sign a consent-election agreement, he would testify he
would not have signed the consent-election agreement, which is General Counsel's
Exhibit No. 19.
The conduct of representatives of the Board and of the General Counsel's repre-
sentatives throughout the entire case has been somewhat less than called for by the
canons of professional ethics.
At the opening of the hearing, counsel for General Counsel moved to strike the
answer to the amended complaint filed by the Employer. After argument, the Trial
Examiner granted the motion to strike. General Counsel then called as his witnesses
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glenn Miller , Fred Keane, George Estes , Earl Lawson, and William Wallace during
his case-in -chief.
Thereafter, the Employer called as witnesses on its behalf William R. Parkhurst,
L. G. Colyne, Charles Ziegelbein, Byron Oswald, Otto Rosebrock, Mary Merritt, and
Harold Williams. Proffers of proof to establish that the Regional Direetor acted
in an arbitrary and capricious manner and that the consent -election agreement had
been induced by misrepresentations of a Board agent were made through these wit-
nesses and Supervisor George Curran and employee Gerald Nicholson.
Offers of Proof Relating to the Arbitrary Action of the Regional Director
(on Challenged Ballots ) and Consent-Election Agreement
The Trial Examiner refused to receive testimony showing, among other things,
the status of employees Williams, Logan , Oswald, and Mahnken and the arbitrary
and capricious conduct of the Regional Director for the Seventeenth Region. This
testimony , together with the record taken as a whole, shows that the Regional
Director relied on statements substantially identical to the incredible testimony of
Glenn Miller and refused to consider other evidence ( in the form of affidavits)
which indicated that the statements made in his determination were so wholly
erroneous as to imply bad faith.
If counsel for the Company had been allowed to examine the witnesses he pre-
sented , and if these witnesses had been allowed to testify , they would have testified
contrariwise.
The Violation of Section 8(a)(5) of the Act
The foregoing recitation of Respondent counsel 's contentions and argument was
properly subject to General Counsel's motion to strike, and the Trial Examiner's
granting of such motion , not only under the liberal rules obtaining in administra-
tive law, but also under the classic rules of common law pleading and practice as
modified by Federal and State code practice under which this case was tried, fol-
lowed of necessity . General Counsel Thornell definitively treated the 8(a)(5)
violation in his brief . Respondent Counsel Pickens likewise extensively dealt with
this phase of the case in his brief and cited a plethora of Board and court decisions
purporting to establish his argument . The Trial Examiner has carefully studied
these cases and the arguments made by respective counsel and finds himself in accord
with the rationale of the General Counsel. Accordingly, the Trial Examiner adopts
the rationale of the General Counsel and finds Respondent to have violated Section
8(a) (5) of the Act For the convenience of the Trial Examiner and any reviewing
authorities, this portion of General Counsel 's brief is incorporated herein and reads
as follows:
As stated, the Respondent admits that the Union has been certified as the exclusive
collective-bargaining representative of all the employees of Respondent in a pro-
duction and maintenance unit, as a result of a secret ballot National Labor Relations
Board election held pursuant to a consent-election agreement General Counsel's
(Exhibit No. 10), entered into the parties
Respondent in its answer denies the allegation of the complaint that the unit herein
is a unit appropriate for purposes of collective bargaining . However , the Respondent
agreed to the unit in the agreement for consent election , and for the first time in its
answer herein raised the question of the appropriateness of the bargaining unit. The
Board has held that an employer cannot agree to the unit in a consent -election
agreement , and then in a subsequent unfair labor practice case contest the appropri-
ateness of the bargaining unit.'
The Respondent urges in its answer that the Regional Director acted in an arbitrary
and capricious manner in ruling on the challenged ballots which resulted in the certi-
fication of the Union, and further that the consent-election agreement is invalid as it
was obtained by the misrepresentation of a Board agent. On motion of counsel for
the General Counsel the Trial Examiner properly struck such affirmative allegations
from the answer.
It is the loner established policy of the Board that it will not interfere with the
Regional Director's action in cases involving an agreement for consent election The
terms of the agreement specifically provide that the determination of the Regional
Director shall be final and binding on all parties . It is for this reason that the Board
refuses to intervene or entertain appeals from the Regional Director 's disposition of
I Baker and Taylor Co , 109 NLRB 245; International Idle¢oild Catering Corporation,
124 NLRB 513.
PARKFIURST MANUFACTURING COMPANY, INC. 879
objections or challenges in elections absent arbitrary or capricious conduct. See
Sumner Sand & Gravel Company , 128 NLRB 1368 ; Riviera Mines Company, 108
NLRB 112. This policy has been consistently affirmed by the Federal courts of
appeals. N.L.R.B. v. Volney Felt Mills, Inc., 210 F. 2d 559 (C.A. 6); Buffalo Arms,
Inc., v. N.L.R.B., 224 F. 2d 105 (C.A. 2); Semi-Steel Casting Co. of St. Louis v.
N.L.R.B ., 106 F. 2d 388 (C.A . 8). Nor does the mere allegation of misrepresenta-
tion by a Board agent constitute reviewable grounds of the egional Director 's determi-
nation nor establish that there has been arbitrary and capricious conduct. Elm City
Broadcasting Corporation, 111 NLRB 980, 228 F. 2d 483 (C.A. 2).
Any other procedure would violate and undermine the whole consent-agreement
process by which so many Board elections are successfully held. If the Board inter-
venes, despite the parties' agreement that the Director 's determination shall be final,
it must do so without benefit of a record of hearing. By charging arbitrariness, every
party could thus, having failed to win on the first round under the consent agreement,
have a second chance, through the Board , which in effect would nullify his earlier
consent. See Capitol Greyhound Lines, et al., 49 NLRB 156, enfd. 140 F. 2d 754
(C.A. 6) The Second Circuit Court of Appeals in the Buffalo Arms case, supra, was
quite critical of the Board in substituting its judgment for that of the Regional
Director.
The Respondent , through offers of proof, has attempted to show that the Regional
Director has acted in an arbitrary and capricious manner in his ruling on the chal-
lenged ballots. However , the offers of proof at most could only show that the Re-
gional Director may or may not have been in error in his decision, and such evidence,
even giving it full weight, falls far short of showing that the Regional Director
acted in an arbitrary and capricious manner. The Supreme Court has said that to
overturn determinations of the present character it is necessary to show such gross
mistakes as to imply fraud .2
Courts have generally held that an arbitrary or capricious action is one "done
without adequate determining principle , irrational , whimsical, despotic, . . See
King v. Falls County, Texas, 42 S.W. 2d 481, 482. An action is not arbitrary or
capricious merely because in a particular case it causes an inequitable result. See
U.S. v. Central Packing Corp., 51 F. Supp. 813 (D.C.N.Y.). The Board has held
that the denial of a formal hearing in this situation is not arbitrary and capricious .3
The Respondent came forth with no evidence that the consent-election agreement
was obtained by misrepresentations of a Board agent , and this contention by Re-
spondent was not raised until after the election , and after the lapse of more than a
month after its execution
Respondent further urges that it was under no duty to bargain with the certified
Union because it had asked for reconsideration of, and had appealed, the Regional
Director's decision on challenged ballots. It is well established that the duty to
bargain with the certified representative cannot be postponed by appeals for
reconsideration .4
The evidence is plain and distinct that the Union was properly certified as the
collective-bargaining representative of all the employees of Respondent in an appro-
priate unit . Further, and Respondent admits, after the certification , and continuing
to date, the Union has requested , and is requesting , Respondent to meet and bargain
collectively with it, with respect to rates of pay, wages, hours, and other conditions
of employment for the employees it is certified to represent . This the Respondent has
refused to do, and such refusal is in violation of Section 8(a)(5) and ( 1) of the
Act.
The Independent 8 (a) (1) Violations
One of the allegations in the complaint involving threatening of employees with
reprisals , including loss of overtime , discharge , and closing down the plant if they
selected the Union as their collective-bargaining representative, is encompassed in a
speech which President Parkhurst made the day before the election, April 6. The
employees at both the main plant and the farm plant had been assembled for this
preelection talk. According to Parkhurst , he had written out his speech and prefaced
his statements "in his opinion ." The cogent portion of his speech as accepted by the
2 See David Dankner, d/b/a Dankner Motor Sales , 107 NLRB 1277, and cases cited
therein at pages 1292, 1293
8Houston Chronicle Publishing Company, 130 NLRB 1243; Lord Baltimore Press, Inc,
331 NLRB 710
* Lucas County Farm Bureau Co-operative Assn., 128 NLRB 458 ; Washington Aluminum
Company, The, 128 NLRB 643.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner , was recited by Miller and corroborated in the main by employees.
Keane, Estes, and Lawson. Millers version reads as follows:
I am satisfied with you men just as you are. I was at a meeting in Atlanta,
Georgia, and I tried to get them to postpone the election , but he [the union
organizer ] could not give me any consideration . That is the kind of a union
you are dealing with . If you want a union, why the Teamsters Union of all,
unions? Everybody knows they have a bad reputation . The union can't do any-
thing for you that I can't do. If you got troubles, you bring them to me to
discuss or take them to Mr . Williams or Curran and we will try to iron them out.
Most of you men have got your training here with the exception of Mr . Miller.-
I have loaned you money . I have helped you in every way that I can. I got_
my training in the Navy. In the Navy the Captain takes care of his men, he
tells them what to do and when to do it. If you disobey the Captain it is-
mutiny, and the same thing applies here. I have other means of livelihood and if
the union comes in here, I will just have to get another ship. We have been
working considerable overtime lately, and if the union comes in there will be-
more overtime.
Estes credibly elaborated "He said if we voted yes tomorrow we signed our death
warrant ." ( Before the election , Parkhurst threatened Estes that he would not work
the next day nor following the election .) Wallace stated "He said if the Union did
come in he would have to take his business elsewhere ." Lawson 's testimony was in the
same vein . Respondent contended that Parkhurst pitched his speech on the basis of
economics . The Trial Examiner finds himself not in accord with Respondent's con-
tention that the speech was not violative of the Act. On the contrary , he finds that
the speech threatened loss of overtime , discharge , and closing down of the plant. The
Board has held in cases too numerous to mention that such a speech is coercive and-
does not fall within the protective "free speech" provision , 8 (c), of the Act.
Posting of the Notice
Respondent admits, and the record shows, that on the afternoon of April 7, after
the election was over, Respondent posted a notice on the bulletin board at both of its-
plants that "Anyone who voted for the Company could work Saturday ." Respondent
counsel contended that Parkhurst , by this means , was showing his disappointment at
the loss of the election in a somewhat humorous way. It was contended that neither
Parkhurst nor any of his supervisors attempted to stop anyone from working on
Saturday through the posting of this notice, and that, to employees who having voted
secretly, "It seemed to be a big joke ." ( However , Parkhurst met Miller at the time--
clock at quitting time and told him not to come in on Saturday .) The Trial Examiner,
contrary to the contention of Respondent 's counsel , finds that such a notice under the
facts of this case is calculated to interfere with, restrain , or coerce employees in the
exercise of their rights guaranteed under Section 7 of the Act . Accordingly, this is
found to be a violation of 8(a)(1).
Interrogation
The charge of interrogation of an applicant for employment about his union affilia-
tion concerns applicant Bob Estes . General Counsel contended that Parkhurst in-
terrogated Bob Estes , an applicant for employment , about his union affiliation. It
appeared that George Estes took his brother out to Parkhurst 's house around 8 o'clock
in the evening to apply for a job. His testimony in this connection was:
Well, I took my brother out to see about a job and we started down off the porch
and Mr. Parkhurst asked my brother if he was a union man and my brother kind'
of stuttered a minute and said he wasn't too much on it. Mr . Parkhurst said this
wasn't going to be a union place, that he would close it down.
Respondent counsel contended that Parkhurst thought this visit was a setup by the,
Union and as Parkhurst put it, he made no bones about it. Counsel cited Blue Flash
Express, Inc., 109 NLRB 591, as his authority that Parkhurst 's interrogation was not a
violation of the Act, saying that derogatory statements about the Union or union
adherents do not violate the Act. The Trial Examiner finds, however, that the
accepted testimony under the circumstances and in the context was calculated to,
interfere , restrain , and coerce an employee in the exercise of rights guaranteed under
Section 7 and accordingly constitutes a violation of Section 8(a)(1).
Another phase of interrogation charged in the complaint arises out of Estes.'
application . Respondent has customarily required new hires to fill out an applica--
PARKHURST MANUFACTURING COMPANY, INC. 881
tion blank, which form inquired into the applicant's union membership. This ques-
tionnaire listed five questions-(1) Do you belong to a union? (2) Have you ever
belonged to a union? (3) What union? (4) When were you a member? (5) Did
you hold office? Respondent contended that the questions pertaining to union affilia-
tion were copied from standard employment forms Parkhurst explained that he
had formerly belonged to the UAW-CIO and stated that the reason he used these
questions was that he wanted to know more about the qualifications of the applicant:
"If he claimed to be a tradesman of some kind it would be evident that he would
belong to a trade union." He testified that he had hired many people who indicated
on the application form that they belonged to a union. He cited Glenn Miller as
an example of one who, to his knowledge, had belonged to the Boilermakers and
remained in his employ for 8 years. Respondent argued that General Counsel
offered no evidence whatsoever that this application form had been used in a dis-
criminatory manner and therefore there was no violation. With this concept of
Respondent's counsel the Trial Examiner is in accord. The Trial Examiner does not
find this type of interrogation to be per se violative of the Act. In the context
of the present alleged and litigated unfair labor practices, the Trial Examiner finds
no connection between such practices and an employment questionnaire containing
questions concerning union affiliation which were designed to elicit information about
the employment qualifications of an applicant and never had been used for any
antiunion purposes. The issue is a collateral one not requiring resolution.
Violation of Section 8(a)(3)
The 8(a)(3) allegation charging that Respondent discriminated in regard to hire
or tenure of employment arose from Parkhurst's refusal to permit Miller to work
overtime on Saturday after the election. The Trial Examiner finds that Parkhurst
specifically forbade Miller to work because of Miller's activity in the Union's cam-
paign and his challenging of the four ballots. Parkhurst knew that Miller had voted
for the Union when he directed the posting of the notice that "Anyone who voted
for the Company could work Saturday." Miller's accepted testimony in this connec-
tion was:
Mr. Curran came through where I was working about 4:00 o'clock and I asked
him if we were going to work Saturday, and he said, "Yes." I said, "I don't
know if Mr. Parkhurst wants me around tomorrow or not. I thought he may
not want to have me around for one thing." George Curran laughed and went
on. I never thought any more about it and went over to check out and Mr.
Parkhurst met me at the clock and informed me he didn't want me to work
tomorrow, Saturday, he just wanted his friends around and wanted to reward his
friends and he might have something too diversified for me to do on Saturday,
and I walked off.
Respondent counsel argued that Miller did not read the notice and therefore the
posting of the notice did not in fact coerce anyone in the exercise of their rights.
Counsel argued that the Act does not proscribe unsuccessful attempts or other activity
falling short of interference, restraint, or coercion. However, even though Miller
may not have been affected by the notice, he was singled out and penalized for
his union activities by not being allowed to work on Saturday. The Trial Examiner
finds this to be a violation of Section 8(a) (3) of the Act.
Violation of Section 8(a)(4)
Miller returned to work on Monday, April 10. On Tuesday afternoon of the 11th,
Miller was engaged in making a 24-foot steel truck platform when Parkhurst came up,
to him and asked him when he would have it completed. The next day Parkhurst,
in company with his father, came to where Miller was working and again jibed Miller
for taking so long to complete the job. They had an argument and Parkhurst charged:
"Why are you trying to put us out of business?" Miller was nettled and upset by
Parkhurst's criticism that he was still working on a truck body which Parkhurst con-
tended should have been finished in 6 to 8 hours.5 Miller took his complaint up with
the Union in the interim and the Union filed a charge with the Board on April 13
alleging that Miller had been discriminatorily laid off on Saturday, the day following
8 Respondent counsel contended that this discussion occurred on April 13 but the Trial
Examiner finds that the incident occurred on April 12.
.882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election. The Respondent received this charge on April 14. Although denied
by Parkhurst, the Trial Examiner finds that Parkhurst, around 8:30 a.m., went to
where Miller was working, accosted Miller, and rebuked him for complaining to the
Union about his layoff on Saturday which resulted in the filing by the Union of a
charge with the Board. Parkhurst accused him of lying to the Labor Board official
about his layoff of April 8. This triggered a bitter altercation.
Keane's Version of the Episode
Fred R. Keane, a witness called by the General Counsel, works as a painter for
the Company. He credibly testified that on the morning of April 14, while working
in the hardware shop, which is adjacent to Miller's place of work and separated by a
wall partition, that he heard a conversation between Parkhurst and Miller. His testi-
mony in this connection was:
Well, it all started when I heard loud voices and I got up next to the wall to
see what I could see. Of course, I couldn't see anything but just a short distance
either side and all I overheard them talking and I heard Mr. Parkhurst speaking
to Miller. He said, "Why did you tell the Labor Board I fired you," and Miller
said, "I did no such thing. . Something else was said, I don't recall just
what it was, and I heard Mr. Parkhurst say, "I will see you six feet under the sod
first before I will let you threaten me again." Miller said, "I have never threat-
ened you," and something else was said and eventually Parkhurst said, "One
more peep out of you and you have had it." And that is about all I heard that
morning.
Q. All right, was this in the early part of the morning?
A. It was, I'd say, 8:30, 9:00 o'clock, a little after, one way or the other.
On the stand Miller gave a disjointed account of this altercation. His version
was that between 9 and 9:30 a.m., while he was picking up a 20-foot channel iron
with the electric hoist, Parkhurst opened the door, glowered at him, and asked why
he had told the Labor Board a damn lie. Miller replied: "I just told them what you
told me at the clock, you told me not to report for work tomorrow." He quoted
Parkhurst as saying "You are a dirty, low-down, lying son-of-a-bitchen liar. I will
put you 6 feet under sod." Miller then described that Parkhurst grabbed him by
the throat "with both hands and choked" him for 10 seconds. Another version of
Miller was that Parkhurst picked up a piece of iron bar some 14 to 16 inches long
and threatened him if be did not retract. Miller testified that within 10 minutes
after Parkhurst left that he went to employee Colyne and told Colyne that Parkhurst
had threatened to kill him. Colyne, however, testified that he did not see Miller
until just before the 12 o'clock bell and that Miller only said that he had "a little
trouble with Parkhurst."
Miller Quits
Miller worked until noon and then punched the timeclock, left the employment
of the Company, and went downtown to report the incident to Cowger, the union
representative. His alleged reason for leaving was that he was nervous over Park-
burst's threats and was fearful for his safety. Miller "accidentally" contacted the
sheriff of Pettis County (to whom he is related by marriage) an drelated the incident
to him. The sheriff advised Miller to go to the prosecuting attorney and the prose-
cuting attorney advised him to handle the matter through the Union. Obviously
neither took Miller's alleged assault seriously.6
Respondent's counsel contended that Miller's testimony concerning what be al-
leged took place on April 14 is incredulous and unworthy of belief. (This will be
dealt with hereinafter.)
The Referee's Version
On April 30, Miller filed a claim for unemployment compensation. His claim
was denied by the deputy and he appealed to the appeals tribunal. Appeals referee
,C. D. Balmer denied the appeal in the following opinion:
9 From his observation and study of Miller , the Trial Examiner was convinced that
Miller was an emotional and highly excitable elderly man who would not only embellish
or balloon an event, but also would not hesitate to invent incidents and actions to make
a story suiting his convenience . Miller was irascible and irritable on the stand , and the
record shows that he complained about fellow workers and his supervisors In conflicts,
his testimony needs corroboration.
PARKHURST MANUFACTURING COMPANY, INC. 883
State of Missouri VL-515.8
DIVISION OF EMPLOYMENT SECURITY
Jefferson City
Appeal No . A-2134-61
DECISION OF APPEALS TRIBUNAL
In the Matter of the Claim of:
Glen E. Miller
710-12-1350
Parkhurst Manufacturing Company
Employer
Appeal Filed By:
Glen E. Miller On 5-29-61
Deputy's Determination Dated 5-24-61
M
1. The claimant filed an initial claim under the Missouri Employment Se-
curity Law effective April 30, 1961 and thereafter claimed benefits through
the week ending June 17, 1961. A deputy disqualified the claimant for benefits
based on a finding that he had left his work voluntarily on April 14, 1961 with-
out good cause attributable to his work or to his employer. The claimant
appealed on May 29, 1961.
2. After due notice to the interested parties the appeal was heard by the
Referee in Sedalia , Missouri, on June 23, 1961. The claimant appeared; the
employer was represented.
FINDINGS:
3. The claimant worked for the employer for eight years, until April 14,
1961, as a welder at a wage of $1.45 an hour.
4. On April 7, 1961 the claimant was observer, for a union of which he
was a member, at an election which was held at the employer's plant to deter-
mine whether the union would become the bargaining agent for all workers
at the employer's plant. The claimant challenged some of the voters. For
some time prior to the election the employer had been working overtime on
Saturday. On the afternoon of April 7 the claimant's supervisor told the
claimant that he need not report for work on Saturday, April 8, 1961. The
claimant reported to his union that he was not permitted to work on April 8
when all of the other workers worked that day. The union filed charges before
the NLRB contending that the employer was engaging in unfair labor practices
because of its treatment of the claimant. The claimant stated that about
9:30 a.m. on April 14, 1961, the employer's president came into the area
where he was working, grabbed him by the throat and asked him why he had
told the labor board a lie. He said the president cussed him and told him
he would "put him six feet under." The president then grabbed a piece
of iron and waved it threateningly at him and said "one more peep out of you
and you have had it." The president then left the claimant's work area The
claimant worked until noon. He then reported the incident to the sheriff and
prosecuting attorney of Pettis County. He said he did not report for work
thereafter because he feared bodily harm from the employer's president. The
sheriff, who is a relative of the claimant, went with him to obtain his final
pay check.
5. The employer's president stated that he did not see or talk to the claimant
on April 14, 1961. He did see the claimant on April 13, and he asked him
why he was attempting to put the employer out of business. The claimant
replied that because he had been laid off on April 8, he was going "to fix
the president's plow and George's too " (George was the claimant's immediate
supervisor). The president told the claimant that he had worked his regular
40 hours during the week ending April 8, 1961 and that the employer had the
right to determine who, if anyone, was permitted to work overtime. He denied
grabbing the claimant or picking up a piece of iron and threatening him. The
claimant worked one-half day on April 14, 1961, and he could have returned
to work thereafter if he had so desired. The employer's president contends that
the claimant was a troublemaker and would have been discharged previously
if it had not been for his union activities.
641795-63-' vol. 136-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. A union representative stated that the claimant called him at Moberly,
Missouri on April 14, and related the incident with respect to the alleged
assault. He advised the claimant to return to work. However , the claimant
did not return to work.
7. The claimant resides on a farm near Sedalia, Missouri . He stated that he
cam to town once or twice a week and when he came to town he asked for
work. He made one or two applications for work each week. He further
stated that he would take any kind of work he could find which he could per-
form. He did not ask his union to assist him in finding work.
8. The Missouri Employment Security Law provides that a claimant shall
be disqualified for waiting week credit or benefits until after he has earned
wages equal to ten times his weekly benefit amount if it is found that he has left
his work voluntarily without good cause attributable to his work or to his em-
ployer. To be eligible for benefits a claimant must be able to work and avail-
able for work, and to be considered available for work he must be actively and
earnestly seeking work.
9. The Referee believes that an argument occurred between the claimant and
the employer' s president , and that during the argument both individuals be-
came angry . He further believes the statements of the employer's president that
he did not grab the claimant or threaten him with bodily harm . The claimant
worked from approximately 9:30 a.m. to noon on the day of the argument and
no further incidents occurred . It is reasonable to believe he could have re-
turned to work thereafter without danger of injury to his person . There was
work for him if he had desired to return to work. He left his work voluntarily
when he failed to return to work. He was not discharged . Under all the
circumstances the Referee finds the claimant left his work voluntarily without
good cause attributable to his work or to his employer.
10. Since the claimant has been disqualified for benefits it is not necessary W
consider his availability for work. However, if it was necessary to consider hi'
availability for work the Referee would find the claimant was ineligible fo
benefits. His efforts to relieve his unemployment do not constitute a reasonably
active and earnest search for work under his circumstances.
DECISION:
The determination of the deputy is affirmed . The claimant is disqualified
for benefits until he has earned wages after April 14, 1961 equal to ten, times his
weekly benefit amount.
Dated at Jefferson City, Missouri , this 13th day of July, 1961.
C. D. BALMER,
Appeals Referee.re
7-12-61
Trial Examiner 's Concurrence With Referee 's Findings
From a study of the whole case the Trial Examiner finds that the record of this
case and the referee's findings are generally in consonance. The referee 's findings,
however, only corroborate facts of this record , testimonial and evidentiary . Never-
the less, the Trial Examiner is in entire accord with the last two paragraphs, 9 and
10, of the referee 's findings wherein he concluded that an argument occurred be-
tween Miller and Parkhurst , that Parkhurst did not grab him or threaten him with
bodily harm , and that Miller left his work without good cause attributable to his
work or to his employer . Accordingly , the 8 ( a)(3) and (4) counts in the com-
plaint dealing with a discriminatory constructive discharge predicated on an assault
which caused Miller, fearful for his safety , to quit his employment , fail for being
contrary to the established facts. Thus, it will be recommended that these allega-
tions be dismissed.
Concluding With Respondent's Argument
The Respondent 's counsel in their comprehensive 70-page brief, particularly be-
tween pages 37 and 43, detailed discrepancies in Miller's version of this altercation
and attacked Miller's credibility in other phases of his testimony . Mr. W. R. Park-
burst, president of the Manufacturing Company, was called to testify by Respond-
ent. He stated that the last time he saw Glenn Miller was on Thursday, April 13,
when he and his father were going through the lumber shed. Miller was working
on a truck platform at the time. It was the same 24 -foot platform that he was
working on Tuesday when Parkhurst had seen him before . Parkhurst asked Miller,
PARKHURST MANUFACTURING COMPANY, INC. 885
"Is this the same truck body that you were working on on Tuesday ?" Miller said it
was. Parkhurst then said , "Well, it seems that you are taking exceptionally long to
build this body since it only requires six or eight hours to build a bed of this size.
What have you been doing?" Parkhurst asked him if he were trying to put him out
of business . Miller replied that , "I am not putting you out of business , and I just
want the union in here to straighten out George [ George Curran, plant
superintendent]."
Parkhurst further testified that on the 14th of April , he was at the farm plant
working with Eli Sanders, the foreman, at 8:30 or 8:45 when his secretary called
from the main plant and told him that the International Harvester people from
Chicago and Columbia, Missouri , were there to see him . These representatives
were supposed to have come to Sedalia the day before , but had wired that they
would be delayed a day. Parkhurst said he drove directly to the main plant and
met with them 5 or 10 minutes later or whatever it takes to drive the 5 miles to the
main plant . Parkhurst and Miss Merritt, the office manager, met with these people
all morning until about 12:45 p.m., when Parkhurst took them to lunch at LeRoy's
Steak House. They were at the steak house for approximately one hour. From
there they drove in a new International carryall vehicle to the farm plant. They
were at the farm plant until 3:30 p .m. Parkhurst then came back to his office at
the main plant and stayed until about 5 p.m. He did not see Miller that day. When
Parkhurst returned to his office in the main plant after 3 p.m., he looked over his
mail for that day. He saw the charge filed by the Union in Kansas City on April 13
for the first time , which alleged that he had committed an unfair labor practice in
not letting Miller work overtime the Saturday before. Parkhurst denied that he had
an argument or that he even saw Miller on Friday the 14th. He denied that he ever
grabbed him by the throat or that he picked up an iron bar at any time and swung
it menacingly near him. His testimony that an iron bar such as Miller described
would weight approximately 28 pounds and would be found only at the farm plant
was undenied and uncontradicted . Parkhurst testified that some weeks Miller would
come in his office once a week and sometimes twice a week . Miller would come
in "excited and wild-eyed " and his opening sentence each time would be if Park-
hurst didn 't get George Curran off his back, "he 'd pick up a club and knock him in
the head." Everytime George Curran would correct Miller for making a mistake
or criticize him for being extremely slow, Miller would fly into an uncontrollable
rage and want to take it out on someone . Miller was very excitable . Parkhurst
would try to calm him down and tell him he would take it up with George Curran.
Credibility Rule
Having carefully observed the demeanor of all the witnesses, intently listened to
their recitals on direct and cross-examination , and weighed their various testimonies,
I have come to the conclusion that these particular events transpired substantially
as given by Referee Balmer . The altercation occurred about 8:30 on April 14-
therefore I reject Parkhurst 's denial. Nevertheless, it does not follow that simply
because one does not believe a particular thing to which a witness testified that every-
thing he says must then be rejected and so it is with Parkhurst . Judge Learned
Hand states the rule thus in N.L.R .B. v. Universal Camera Corporation, 179 F. 2d
749 (C A. 2) :
It is no reason for refusing to accept everything that a witness says because you
do not believe all of it; nothing is more common in all kinds of judicial de-
cisions than to believe some and not all.
Miss Mary Merritt, the office manager of the Company for the past 3 years, was
called and testified credibly. She testified that an examination of Glenn Miller's
timecards from January 1 to April 14 , 1961 , showed that Miller had checked in every
Friday during that period. On the witness stand she went through every timecard
for this period and examined them . (Counsel for General Counsel was given the
cards for inspection and cross -examination . Miller had admitted that he had not
signed in on Friday , April 14. However , he said this was not unusual , as it was the
day he paid for his clothes. He stated that there were a number of times on Friday
when he had not checked in .) She testified that on April 14, she called Mr. Park-
hurst from the office around 8:30 a.m. and told him that there were some repre-
sentatives from International Harvester Company there to see him . She also stated
that he came to the office and went into conference with them until 12 or 12 : 30 p.m.
She also stated that she was in the conference.
L. G. Colyne, who had worked for the Company 9 years, was called to testify.
He stated that on the morning when Miller informed him he had had an argument
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Parkhurst , he (Colyne ) was not working in the same building as Miller.
Colyne did not see Parkhurst that day. He saw Miller just before the 12 o'clock
whistle blew, 11:30 or 11:45. Miller came to Colyne in the lumber shed and told
him he had had some trouble with Parkhurst. He told him if Parkhurst came in he
would like for Colyne to come in there because he was welding and had his hood
down over his head. He stated that he could not see what he was doing and anything
could happen. That is all Miller said, and the 12 o'clock bell range shortly after that.
Miller, on the other hand, testified that he talked to Colyne 10 minutes after Park-
hurst left and he placed Parkhurst in the area 8:30-9 a.m.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent, set forth in section III, above, occur-
ring 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent make whole Glenn Miller for any
loss of earnings he may have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which he normally would have
earned as wages on Saturday, April 8, 1961.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. General Drivers, Warehousemen & Helpers Local Union 534, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employee
Glenn Miller thereby discouraging membership in the above-named labor organiza-
tion, the Respondent has engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
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.
4. By refusing to bargain with the Union with respect to rates of pay, wages,
hours, and other conditions of employment for the employees it is certified to
represent, Respondent is violating and has violated Section 8(a)(5) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that Parkhurst Manu-
facturing Company, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers, Warehousemen & Helpers
Local Union 534, affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or in any other labor organization, by
discharging, laying off, refusing to reinstate, or in any other manner discriminating
in regard to hire or tenure of employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
or to refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a condi-
PARKHURST MANUFACTURING COMPANY, INC. 887
•
tion of employment as authorized by Section 8(a)(3) of the, Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(c) Refusing to bargain with the Union as the properly certified collective-
bargaining representative of all the employees of Respondent in an appropriate unit.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act:
(a) Make whole Glenn Miller for any loss of earnings he may have suffered by
reason of the discrimination in the manner set forth in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all records necessary for the
determination of the amount of backpay due under terms of these recommendations.
(c) Post at its office in Sedalia, Missouri, copies of the notice attached hereto
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Direc-
tor for the Seventeenth Region, shall, after being duly signed by the Respondent,
be posted immediately upon receipt thereof, in conspicuous places, and be maintained
for a period of 60 consecutive days thereafter. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps it has
taken to comply with the foregoing recommendations .8
It is further recommended that (1) unless within the prescribed period the Re-
spondent notifies the said Regional Director that it will comply, the National Labor
Relations Board issue its order requiring compliance with the foregoing recommenda-
tions; (2) the allegation in the complaint that Respondent William R. Parkhurst
threatened and assaulted employee Glenn Miller because said employee filed charges
or gave testimony under the Act thereby constructively discharged Miller (who fear-
ful for his safety, quit his job) all in violation of Section 8(a)(3) and (4) of the
Act, be dismissed.
7In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
In the event that these Recommendations 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 Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in General Drivers, Warehousemen &
Helpers Local Union 534, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any other
labor organization of our employees, by discharging, laying off, refusing to
reinstate, or in any other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized by
Section 8(a) (3) of the Act, as amended.
WE WILL bargain in good faith with General Drivers, Warehousemen &
Helpers Local Union 534, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America with respect to
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay , wages, hours, and other conditions of employment for the em-
ployees it is certified to represent.
WE WILL make whole Glenn Miller for any loss of earnings he may have
suffered by reason of the discrimination against him.
PARKHURST MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City 6, Missouri , Telephone Number
Baltimore 1-7000 , Extension 731, if they have any question concerning this notice
or compliance with its provisions.
Philadelphia Sheraton Corporation 1 and Miguel de Jesus
Sanchez
Hotel , Motel and Club Employees ' Union , Local 568, AFL-CIO
and Anibal Vazquez , Elliott Mcllwain , and Miguel de Jesus
Sanchez. Cases Nos.. -CA-2310, 4-CB-669-1, 1-CB-669-2, and
4-CB-669-3. April 6, 1962
DECISION AND ORDER
On October 17, 1961, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter the General Counsel and the Re-
spondents filed exceptions to the Intermediate Report and supporting
briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases,2 and hereby adopts the findings,' conclusions, and recom-
dations of the Trial Examiner to the extent consistent with the
following :
1 The Employer's name appears as amended at the hearing.
2 As the record and the briefs adequately present the issues and the positions of the
parties, the Employer's request for oral argument is hereby denied.
3 The General Counsel excepted to the Trial Examiner's failure to find that the Union's
refusal to refer Vazquez, after he had paid all his back dues and a penalty fee, was unlaw-
ful. In view of our decision herein finding that the Union violated Section 8(b) (1) (A)
and (2 ) of the Act by causing the Employer to discharge Vazquez, and as the order
provided therefor will adequately remedy the violations found, including full relief
to Vazquez, we find It unnecessary to pass upon the merits of the General Counsel's
exception.
136 NLRB No. 75.