Waltham Lime & Cement Co.

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 523 (N.L.R.B. 1968)

WALTHAM LIME & CEMENT CO. 523
Waltham Lime & Cement Co. and International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local
379. Case 1-CA-5804
March 19, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
aminer's credibility findings are not contrary to the clear preponderance of
all relevant evidence Accordingly, we find no basis for disturbing those
findings Standard Dry Wall Products, 91 NLRB 544, cnfd 188 F 2d 362
(CA 3)
3 Delete from paragraph 2(b) of the Trial Examiner 's Recommended
Order that part thereof which reads "to be furnished" and substitute
therefor "on forms provided "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On November 27, 1967, Trial Examiner A. Nor-
man Somers issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged 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, The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor prac-
tices and- recommended dismissal of those allega-
tions of the complaint. Thereafter, the Respondent
and the General Counsel filed exceptions and sup-
porting 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 Respondent's excep-
tions and supporting brief, the General Counsel's
exceptions and supporting brief, and the entire
record in the case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Ex-
aminer.
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, Waltham Lime & Ce-
ment Co., Waltham, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.'
° The Respondent's request for oral argument is denied , as the record, in-
cluding the exceptions and supporting brief, adequately presents the issues
and the positions of the parties
3 These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner to which the Respondent has ex-
cepted After a careful review of the record, we conclude that the Trial Ex-
A. NORMAN SOMERS, Trial Examiner: This case
was heard before me in Boston, Massachusetts, on
July 12, 1967, on complaint of the General Counsel
issued on March 22, 1967.' The complaint alleges
(and answer denies) that Respondent invades the
rights of the employees in violation of Section
8(a)(1), and, in violation of Section 8(a)(5), failed
and refused to bargain collectively with the-Union
as the representative of Respondent's employees.
The presentation consists solely of the case-in-chief
presented by the-General Counsel, with each side
resting upon it in support of its opposing position.
Respondent and the General Counsel presented
oral argument and have filed briefs, all of which
have been duly considered.
On the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Waltham Lime & Cement Co., is a
Massachusetts corporation, located in Waltham,
Massachusetts, where it is engaged in the wholesale
sale and distribution of cement, lime, building sup-
plies, and related products. Respondent in the
course and conduct of its business annually
purchases from sellers or suppliers within the Com-
monwealth of Massachusetts goods and materials
valued in excess of $50,000, which originate from
outside the Commonwealth of Massachusetts. It is
hereby found that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
IL THE LABOR ORGANIZATION INVOLVED
The Charging Union, through Frederick J.
Donovan, its secretary-treasurer and business
agent , testified that the Union permits employees to
participate in its organization, and that it has con-
tracts with employers covering wages, hours, and
working conditions. This was not disputed. It is
found that the Union is a labor organization within
the meaning of the Act.
' On charges filed by the Charging Union on January 27, 1967
170 NLRB No. 64
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE UNFAIR LABOR PRACTICES tends that 8 of these 10 were in fact signed January
A. The Issues
The General Counsel claims that Respondent
violated Section 8(a)(5) of the Act by refusing to
bargain collectively with the Union, on request,
though a majority of its employees in an ap-
propriate bargaining unit signed cards designating,
the Union as collective-bargaining representative.
The authenticity of the cards was not challenged
The Union first filed with the Board a petition for
representation under Section 9, and the next day
sent the Respondent a letter stating a majority of its
employees had signed cards designating the Union
as their bargaining representative and asking
Respondent to bargain collectively with it. While
Respondent now insists that it will only bargain if
the Union demonstrates its majority in a Board
election, it had no communication with the Union
concerning any basis for its refusal to bargain with
the Union. The General Counsel contends that
Respondent engaged in conduct which invaded the
employees' rights as guaranteed by Section 7
(promises of benefits, interrogation, threats), thus
violating Section 8(a)(1) of the Act. These viola-
tions, the General Counsel contends, in any event
impair the holding of a free election under the peti-
tion for representation, and Respondent's refusal to
bargain with the Union on the basis of the majority
shown by the cards was thus in bad faith and a
violation of Section 8(a)(5) of the Act.
B. The Facts
1. Preliminary elements
Respondent's officers in the operation of the
plant are Robert V. Derderian, who is the pre-
sident, and Robert M. Derderian, son of the pre-
sident, who is the supervisor and clerk. The parties
agree that the appropriate bargaining unit consists
of: All truckdrivers, warehousemen and yardmen of
the Respondent employed at its Waltham, Mas-
sachusetts, plant but excluding office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(11) of the Act. The pasties also agree that
the unit is comprised of 14 employees.
During the week beginning Monday, January 23,
1967 (the year in all instances is 1967, except as
otherwise stated), employee George Brugger
procured the signatures of 10 of the employees in
the unit.2 The signers were Brugger and nine others
who signed in his presence 3 The cards are all dated
January 24. (However, the General Counsel con-
The cards, in relevant aspect, read
I, the undersigned , apply for membership in the above Union of the
International Brotherhood of Teamsters [etc] and voluntarily choose
and designate it as my representative for purposes of collective bar-
gaining
The 10 cards are in evidence as G C Exh 5(a)-5(j), in the following
alphabetical designations of G C Exh 5 (a) George E Brugger, (b) Rene
Hebert , (c) Joseph F Livingston, (d) Duncan A MacKinnon , (e) John D
23-a matter later discussed.)
Brugger turned all 10 cards over to the Union the
morning of January 25, and later that same day, the
Union filed with the Board a petition for represen-
tation under Section 9(c), as earlier mentioned.
The Union the next day wrote the Respondent the
previously mentioned letter stating that a majority
of the employees have "signed cards requesting
[the Union as their representatives [sic ]," and ask-
ing Respondent to meet with it "for the purpose of
negotiating a contract covering the wages, hours
and conditions of the employees." Respondent
received the letter on January 27. Respondent
never replied to this letter. The Union's actions
would indicate that it anticipated Respondent
would not reply. For on that same day, January 27,
the Union filed with the Board its charge in this
proceeding (supra, fn. 1) that Respondent had
refused to bargain collectively with the Union in
good faith and had otherwise invaded the rights of
its employees under Section 7. Union Secretary-
Treasurer Donovan testified that before he filed the
charge, he received intervening information from
the employees concerning certain conduct on the
part of Respondent to be hereafter considered. At
all events, so far as the issues raised by the General
Counsel are concerned, we are involved with
Respondent's activities on January 24 and 25, as
well as activities occurring about March 1, which
the General Counsel claims violated Section
8(a)(1). As also stated, the General Counsel claims
that these violations also indicate that Respondent
acted in bad faith in refusing to bargain with the
Union on the basis of the majority designation in-
hering in the cards, thereby violating Section
8(a)(5).
2. The dates and the violations as claimed
a. January 24: promise of benefits
R. M. Derderian , the son , called as an adverse
witness by the General Counsel , testified that the
morning of January 24, Joseph Guisti , an employee
in the unit, spoke to R. V., the father , whereupon
the father that same morning , called the employees
to a meeting , which was held shortly after 4:30
p.m., the end of the workday. The General Coun-
sel, in questioning R. M., suggested that Guisti
(who is not among the 10 who signed union cards,
supra, fn. 3), informed the father that "the Union
was asking out cards ." R. M. denied this. He
testified that although he was not there when Guisti
spoke to his father , the father immediately told him
MacKinnon , (f) Paul T Pitts, (g) John E Wessell, (h) Frederick S
Wittington, Jr , (i) John A Farrell, and (j) Michael Macintyre
It is well recognized that authorization cards may be introduced in
evidence and authenticated by one in whose presence the cards were
signed See N L R B v Economy Food Center, Inc , 333 F 2d 468, 471
(C A 7), Colson Corporation v NLRB , 347 F 2d 128, 134 (C A 8), cert
denied 382 U S 904, N L R B v Howard-Cooper Corporation, 259 F 2d
558,560 (C A 9)
WALTHAM LIME & CEMENT CO.
of what Guisti had said.' The son testified his father
told him that Guisti had merely asked the father to
hold the meeting, and thereupon father and son un-
derstood that the employees wanted to discuss a
raise . R. M. testified that when the employees
wanted a raise it would be Guisti who asked for it,
and that this was "usually once or twice a year."
R. M. testified (as did later also employee
Brugger) that in the early part of 1966, R. V., the
father, had promised the employees a pay raise
every spring and fall. Respondent gave them a raise
in April 1966, but when October 1966 came
around, Respondent did not give a raise and offered
no explanation. R. M. testified that the father, at
the meeting to which he called the employees on
January 24, told the employees that business was
bad and that the employees knew it and so no ex-
planation for the failure to keep the promise had
been necessary.
Nevertheless at the meeting on January 24, as R.
M. testified, his father now promised the employees
a raise of $5, and he also promised two other
benefits not theretofore promised. These were a full
allowance of $1.20 on uniforms (in contrast with
the allowance of only one-half then prevailing) and
a contribution toward health and welfare benefits.
(The employees were then paying the full premium
on the Blue Cross-Blue Shield plan, with no con-
tribution by their Employer.) R. M. testified that
the father at that meeting stated that all three
benefits would go into effect about March 1 (which
in fact they did).
The General Counsel contends that the father
called that meeting of January.24 because he must
have known the employees had signed cards in the
Union.. To support this, the General Counsel urges
that we credit Brugger's testimony that though the
cards are all dated January 24, Brugger now re-
members that eight of these were signed on Mon-
day, which would be January 23, and that the 24th
was merely a mistake in date. In stating how he
came to invoke union aid, Brugger testified (as had
R. M. Derderian) that the raise which the em-
ployees had been.promised for October 1966 had
not been given them. However, in contrast with the
testimony of R. M., that no explanation had been
thought "necessary," Brugger testified he and his
fellows were quite incensed over the denial of the
raise and the failure to explain it. (Brugger, in_ the
explanation he gave the Derderians on January 25,
when Respondent asked him why he was trying to
get, the .Uniorl ^ in, explained that "the boys were
pretty head' up about this.") That resentment did
not. take,-the, form of turning to the Union for aid
until' after January 16. -On- that day Brugger
sustained a disability which kept him off the job
until - his return to work about March 1. Brugger
testified that.a;few, days before he was disabled on
a Neither the father nor Guisti testified The six witnesses in the case
were all called by the General Counsel (As stated; all parties in the case
rested on the General Counsel 's case-in-chief.) In that order , the six who
525
January 16, in speaking with the fellow employees
they "had decided we should either get a better
deal from the Company or go union." But it was
after his injury that he was in contact with the
Union and obtained the cards to procure the signa-
tures to the Union. He could not specify when he
got these cards other than that it was between
January 16 and the 23rd. As the cards show, all 10
were dated January 24. As stated, Brugger testified
eight were signed Monday, which was the 23rd, but
mistakenly dated January 24th, and. the remaining
two (G.C. Exh. 5(i) and (j), supra, fn. 3) were
signed January 25, but he testified they were dated
the 24th because the other eight were so dated.
Since Brugger, because of his injury, was not at
work on the 24th, he had not been at, Respondent's
meeting of that date. However, -he testified he
learned about it within minutes after it was held,
because fellow employees called him about it, said
they were not satisfied, and told him "to go ahead
with the union deal and turn the cards in" (which,
as stated, he did on the morning of January 25).
The three other employees who testified in this case
(supra, fn. 4) corroborated Brugger's version of
having signed on the 23rd. Jack MacKinnon, the
only one in that three who was at that meeting of
the 24th, testified that that meeting occurred on the
day after he signed his card. And Pitts and Duncan
MacKinnon, who had been on road duty on the
24th, testified that the following morning, the 25th,
a conversation that the father had with the em-
ployees (to be later described) occurred 2 days
after they signed their cards.
At any rate, whether the eight cards were signed
the 24th, as they are dated, or the 23rd as is now
testified, there is no specific testimony in the case
that at the time Respondent met. with its employees
on January 24, Respondent either had been told or
knew that the employees had signed union cards.
The General Counsel merely contends that such
knowledge on Respondent's part is the only valid
inference to be derived from the timing of the
meeting the father called on' the 24th and the
promises he gave on that 'day. Whether the in-
ference is to be sustained 'will be considered in the
conclusionary discussion.
The testimony contains only two references at
that meeting to unionism in whatever connotation.
The first was by R. M. The General Counsel asked
him whether at the meeting on January 24, "there
was a comparison made-with, wage, rates paid at
companies that were unionized," to which R., M.
replied, "I think the subject came up;" but casually
and during a discussion of what Respondent's com-
petitors were paying: The other- was by John
MacKinnon. He:testifled that "as far as I can re'
call,"- R. V., the ,father, after promising the-em-
testified were. R M Derderian, of the Company, Donovan, secretary-trea-
surer of the Union, and the following four employees. George E Bragger,
John D MacKinnon , Paul T Pitts, and Duncan A MacKinnon
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees a raise of $5, said that he "didn't want no
such thing as a union in the Company."
b. January 25
Respondent 's Conversation with the Employees
Other than Brugger
At the start of the workday on the 25th, - the
father asked the employees if they were satisfied
with the meeting he held yesterday , and they said
they were . Pitts and D. MacKinnon , although they
had missed the previous day's meeting , had ap-
parently gotten the drift of that meeting of the
previous day. R . V., elaborating on the reason for
the "bad business " now prevailing , spoke about the
war in Vietnam as explaining why building con-
struction had fallen off , and, Pitts and D . MacKin-
non testified that the father also told the em-
ployees , in substance , that at this time "he didn't
think he was ready to have the union come into his
company."
Respondent 's Conversations with Employee
Brugger First in Town and then in Respondent's
Office
On that same morning of the 25th , Brugger about
an hour or so after turning over the 10 signed cards
to the Union , encountered the Derderians. Brugger
was then in the car of a fellow employee and had
stopped for a while at a dealer 's (International Mo-
tors ) to look at some trucks that Respondent had
recently bought ( because the fellow employee an-
ticipated being assigned to drive one of them).
While the two employees were there , the Derderi-
ans came by . They asked that Brugger ride instead
in their car , and they would take him to where he
was going. Brugger then joined them.
Brugger's account of his conversation with the
Derderians both at the car and later at Respon-
dent 's quarters was not denied . Brugger testified
that while they were driving:
Mr. Derderian asked-Robert V. asked me
what was bothering me and I said nothing and
he said , "Oh, get off it you know what I mean,
you have been passing out union cards" and I
said yes I was.
They then drove on to the plant ( instead of to
where Brugger had been headed ). There they took
Brugger to the downstairs office , and had a conver-
sation with him that'lasted about 3 hours . R. V., the
father , asked Brugger if he was "trying to get the
union in." Brugger confirmed this, and , R. V. asked
"why."-Brugger , as earlier stated , replied that the
employees had not been given the raise expected
since last October with no explanation being given,
and "the boys were pretty head up about this." The
father , substantially in the manner he had told the
employees at the plant the day before, told Brugger
"business was slow." He added he was incurring
heavy expenses, and that Respondent "didn't think
they were quite ready for the Union yet." The
father reminded Brugger that-during a layoff he had
kept Brugger on -while he had laid off "fellows ...
that were there before [Brugger]."5 The father said
that if such a layoff occurred again, "and we were
union , he (Brugger) would be one of the first to
go." Brugger replied he realized this, and:
... then the son said that if we were union, if
the shop did go union'that they would cut the
hours and they, would lay off any chance they
had to lay the help off.
Toward the end of the talk (while the son was an-
swering a call in the office above) Brugger told the
father that he "wanted to lay [his] cards on the ta-
ble, that the union cards had been signed by ten out
of twelve drivers and they had been turned into the
union office about a couple of hours- before."
Brugger testified that the father sighed deeply
without replying, and when the son returned, he
asked Brugger to repeat what he had said, and
Brugger did so. The 'two then informed Brugger
that they had had a meeting with the men the previ-
ous afternoon. Brugger, as previously related,
replied that he had been told about it by the men
not long after that meeting, and that they "told me
to go ahead with the union deal and `turn the card
in," because they were not satisfied.-
The father then asked Brugger what he wanted.
Brugger, as he testified, said that from' what he un-
derstood President Derderian had said atthat'meet-
ing they would be raised $5 a week and would=also
be paid the full allowance of $1.20 on the uniforms.
Brugger further testified that he "asked- him [the
father] for at least three dollars of Blue-Crossif not
all of it," and the father replied "that he would look
into a health and welfare as soon as possible."
c. The conversation in March the day after
Brugger's return to work
Brugger, now recovered, returned to the job the
first week in March. On the next day, as Brugger
testified, and as was not denied, R. N. brought him
down to the office, and had a conversation with
him at which the son was not present. R. V. asked
Brugger to be seated, and then` exhibited some
graphs. He showed Brugger the terms that were
going into, effect-the wage raise of $5, the full al-
lowance of $1.20 for uniforms, and a contribution
of $3 a week toward the premiums of Blue Cross-
Blue Shield. He added that the employees would
also have 5 hours "average overtime" by the end of
the year. He asked Brugger whether he thought it
was "all right" and, "looked good on paper."
Brugger replied he thought it did. R. V. shook
Brugger's hand, and said, "I want every' man to be
with me 100 percent." He then- asked`Brugger-if he
5 Brugger 's current employment began March 1966. But he had worked
for Respondent twice before this, once `for 5 -years, and the other for 3
years
WALTHAM LIME & CEMENT CO.
had "talked to anybody or signed any statement."
Brugger replied, "no," although he had in fact
signed a statement with a Board agent about a little
over a week before this. R. V. then told Brugger
"they did not want the Union in, they didn't wany
any more union talk in the yard," and that "if there
was any complaint on the part of the men in re-
gards to the general working conditions that
(Brugger) would or could be their spokesman and
if there were any complaints to come up, and see
Mr. Derderian the father or son and they could be
ironed out that way."
C. Conclusions
1. The violations of Section 8(a)(1)
a. Claim regarding Respondent's promises of benefits
made on January 24
On careful consideration, I conclude that the
claim that the promises made by Respondent on
January 24 were- antiunion motivated is not
established by a preponderance of the evidence.
Respondent's actions in assembling the employees
on that day and promising them not only the raise
theretofore denied them in October but also
benefits not theretofore promised, to be sure, had
an extraordinary timing. That, however, is as far as
the evidence carries us. There is no direct evidence
that on the 24th, Respondent was told that the em-
ployees had joined the Union or that Respondent
otherwise knew -it. Indeed, the assertion that that
kind of union affiliation even existed hinges on the
testimony, previously mentioned, that although the
cards were dated January 24, eight of these were
really signed on the preceding day. I have con-
sidered the testimony of Brugger to that effect and
also of the three employees that when they signed,
it was before the, day that. Respondent made the
promises, so as to bring the date they actually
signed to January 23. On balance, it does not out-
weigh the evidence that inheres in the date written
on the cards themselves. The record shows that
Brugger's first,indication to anyone that the cards
were signed on Monday, January 23, came on July
10. This was 2 days before the hearing in this case,
during preparation with counsel for General Coun-
" And Pitts, one of the three witnesses (supra, fn 4) who had testified to
a date they signed in relation to the time Respondent 's president spoke to
the employees, admitted that as recently as a few days before the hearing in
this case, he told counsel for the General Counsel "that the day that I had
marked down was the date that I signed it "This would make it the 24th At
the hearing ( after counsel had completed their respective examinations of
Pitts ) the Trial Examiner asked Pitts to look at his card The witness now
recalled that he had signed his card and filled out all of it except the date
He recalled that he had been part of a group of four employees in a car,
outside the plant after the working shift, and that although they all signed
and filled out their cards, only one among them filled in the date for all, of
them One of those four was Brugger Pitts remembered that Brugger had
brought the cards But he recalled the one who wrote the date for all of
them to have been an occupant other than Brugger He was confused about
who that occupant was, and there is no further evidence regarding who
527
sel.Brugger testified before us that he realized his
error over the date "quite a while ago and it was
just bothering me." Yet, the complaint of the
General Counsel states the date to be January 24,
even though, as appears from Brugger's testimony,
he had been interviewed by a Board agent and had
signed a statement about a little over a week before
the first of March. It thus appears that as late as
over a month after" January 24, Brugger did not feel
there was an error over the dates on the cards.6
One may assume that when Respondent met with
the employees on January 24, it felt that something
was in the air. But it need not necessarily have been
over the existence of union activity as contrasted
merely with the employees' resentment over the
failure to grant the raise. Brugger himself admitted
that there had been a long period when "the boys
were pretty head up about this" before any over-
tures to the Union. If so, employee Guisti, in ap-
proaching the father on the morning of the 24th,
could well have acted in the same spirit in which a
year earlier, when no union had been in the picture,
he asked Respondent for a meeting, which cul-
minated in the employees being promised a raise
every half year. In any event, the assumption-that
the meeting of January 24 had no different motiva-
tion from the one of the year before is as tenable as
the one which the General Counsel urges, which is
that Respondent called the meeting of January 24
because it was informed or it knew that union cards
had been passed out. The General Counsel seeks to
fortify this conclusion on the "small plant" theory.
But even the tiniest plant cannot convey to an em-
ployer information concerning an event that has
not yet occurred. As stated, I do not feel that there
is the requisite preponderance of the evidence that
the cards were signed earlier than the date written
on them. Such evidence as exists on the point is to
the effect that the time of day on-which Brugger ap-
peared at the parking area of the plant ' and signed
up the bulk of cards was in the afternoon following
the end of the shift.' Brugger' testified that shortly
after Respondent held that meeting on the 24th,
some of the employees complained to him on the
telephone that they were unhappy and wanted to
turn over the cards to the Union. Such a call would
have been one to have normally impelled Brugger
at that time to have hurried over to the plant in
filled in the dates Nor is there any evidence regarding who filled in the
dates for the remainder of the eight who are supposed to have signed on the
23rd instead of the 24th that appears on every card This widens the arc of
coincidence in respect to the number of persons who should have been in-
dependently mistaken about the date of the 24th appearing on all of the
cards
' Brugger testified that it was near the plant after the shift ended that he
signed up the bulk of the eight employees who he testified signed on Janu-
ary 23. (Brugger testified the first three , i.e., his , which is marked (a) of
G C Exh 5 and the next two, marked (b) and (c), supra, fn 3, were signed
at their respective homes ,) He testified the remaining five of those eight,
whose cards are marked (d) through (h) of G.C Exh 5 (supra, fn 3), were
signed in the late afternoon near the plant see also the testimony,of Pitts,
supra, fn 6
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to have the cards signed for the purpose of
turning them over to the Union. The very "small
plant doctrine," which the General Counsel ad-
vances to support the theory that if the employees
affiliated with the Union, Respondent would know
it, would also suggest that if Respondent thus knew
of such an affiliation on the 24th, some testimony
would have emerged affirmatively showing such
knowledge to have existed." An example appears in
respect to Respondent's conduct on the next day,
the 25th. As indicated in the prior portion of this
Decision and as further discussed in the ensuing
portion of the conclusionary section, Brugger
testified to Respondent's lengthy discussion with
him on the 25th, which on its face shows an aware-
ness by Respondent on that day of union activity.
Had the cards in fact been signed on January 23,
the very knowledge of union activity which the
General Counsel imputes to Respondent as a
matter only of inference would expectably have had
some affirmative manifestation comparable to the
disclosure concerning the knowledge on the 25th.
At all events, as I view the evidence as a whole, the
testimony of Brugger and his companions that they
signed on the 23rd does not outweigh the evidence
inhering in the date stated on the cards and the
silence concerning any error in it until the last
minute preparation for the hearing held in July.' It
being my conclusion that the cards were in fact
signed on the date stated on them, it would follow
that on January 24, when Respondent met with the
employees and promised the benefits as described,
there was no motivation on its part to cause the em-
ployees to abandon any affiliation with the Union,
since that affiliation had not as yet occurred. Ac-
cordingly, the promises made on January 24 were
not in violation of Section 8(a)(1).
b. The activities of January 25 and the first part of
March in violation of Section 8(a)(1)
Respondent 's actions on the later days here
described , January 25 and the day after Brugger's
return to work in March, are in a different catego-
ry.
The very knowledge of union activity and affilia-
tion which is shown to have been lacking on Janu-
ary 24 is well shown to have existed on January 25
and also the first part of March . Whether Respon-
dent 's statements on those days were or were not
protected by Section 8(c) (which in any event is
the main thrust of Respondent 's argument) are
another matter. But Respondent's failure to deny
the explicit testimony concerning what was said
between Respondent and Brugger, as previously
suggested, supra, fn. 9, calls for the finding that
these conversations occurred as Brugger described.
Brugger's testimony, concerning Respondent's
discussions with Respondent on January 25 and on
his return to work the first part of March, had a
particularity and definitiveness which carried per-
suasion that the testimony concerning the claimed
earlier date of the signing of the cards did not. As
Judge Learned Hand put it:
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 decisions than to believe some and
not all.10
This applies even if the portions here discussed
were denied. If that had been denied "that would
be a matter to be weighed in resolving a conflict in
testimony. Such weight as it might in such case
have had is rather dissipated in the face of the
failure of the person implicated to put his own
sworn version of what took place between them on
the line against that given by [the witness]." Preci-
sion Fittings, Inc., 141 NLRB 1034, 1040. The
testimony of the witness thus not denied by the
Respondent is entitled to be credited unless it can
be said that the testimony, as Judge Hutcheson put
it, "carries its own death wound." N.L.R.B. v. Rob-
bins Tire & Rubber Co., 161 F.2d 798, 800 (C.A.
5). This can hardly be said of Brugger's description
of the conversations between Respondent and him-
self from the time Respondent initiated with him
the prolonged discussion of January 25 and later
the conversation initiated with him on the first part
of March. The testimony given by Brugger on those
days is credited.
Respondent in its brief writes off its statements as
mere expressions of "views, argument or opinion"
immune under Section 8(c). This is hardly so. Re-
garding January 25, Respondent's statement when
Brugger entered the car at its request, "Oh, get off
it, you know what I mean , you have been passing
out union cards," was no casual inquiry concerning
an isolated employee's interest in the Union. The
reverse appears from the 3-hour session which
Respondent initiated with Brugger. After asking
him if he was "trying to get the union in," and
receiving an affirmative answer, the father then
stressed that he had kept Brugger on during a layoff
as against older employees but that "if we had a
'The "small plant doctrine" is less than persuasive where there is no
other basis for inferring knowledge See e g N L R B v Joseph Antell, Inc ,
358 F 2d 880, 882 (C A I), and cases cited
9 The brief of the General Counsel suggests that Respondent's failure to
testify or give other evidence concerning when the cards were signed forti-
fies the testimony of Brugger and his three companions that they were
signed on January 23 But Respondent was hardly in a position to testify
about it either way unless it can be said that Respondent was a participant
with Brugger in procuring the cards or should have been-which I am sure
neither the Union nor the General Counsel would urge
A ditterent situation exists, however, in respect to Respondent's failure
to deny the testimony regarding its conversations with Brugger on January
25 and the first part of March Brugger, in his testimony, specifically im-
plicated Respondent in these conversations and, as pointed out in the ensu-
ing section, Respondent's failure to deny that testimony has a direct bear-
ing on the finding to be found concerning what Respondent knew since
January 25
10 N L R B v Universal Camera Corporation, 179 F 2d 749, 750 (C A
2), remanded on another point 340 U S 474
WALTHAM LIME & CEMENT CO. 529
layoff I would ... and we were union, I (Brugger)
would be one of the first to go." Brugger's state-
ment that he realized this was met with the explicit
warning by the son that "if the shop did go union
that they would cut the hours and they would lay
off any chance they had to lay the help off."
Respondent argues that these were mere state-
ments of* opinion connoting no threat. Citing
authorities, it contends that "efforts of the em-
ployer to convey the impression that union was not
beneficial to the employees is not prohibited unless
coercive." It claims that "threats to employees
must be expressed." It was unequivocally expressed
by the son. But even if not unequivocal the state-
ment can still be coercive where it conveys that if
the employees select a union, management will sub-
ject the employees to economic detriment. As
stated in Hendrix Manufacturing Company v.
N.L.R.B., 321 F.2d 100, 104 (C.A. 5):
It is a question of whether under the circum-
stances existing, the employees could
reasonably conclude that the employer is
threatening economic reprisals if they support
the Union. Here, of course, statements that
bonuses, pension plans and similar financial
benefits would be cut off carried their own
seeds of coercive threat.ll
As has also been stated, where "management .. .
has the power to change `prophecies into-realities
such statements [referring to economic detriments
if employees support the Union] whether couched
in language of probability or certainty, tend to im-
pede and coerce employees in their right to self-or-
ganization, and therefore constitute unfair labor
practices. 1112
In the fact of the threats thus conveyed, the inter-
roation of Brugger regarding his efforts to "get the
union in," beginning with the "get off it" statement
to Brugger when he was in Respondent's car was
hardly a casual inquiry. If not inherently coercive in
the very manner of its approach, it was clearly such
in the context of the threats that followed. Respon-
dent's interrogation of Brugger and the threats of
what Respondent would do if the Union came in
were acts of interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act.
Respondent suggests the discussion concerned
but one employee and had no extensive sig-
nificance. That contention would not prevail even if
it concerned an employee with a lesser significance
than Brugger. As stated, "any expression of com-
pany-' attitude even- to small groups of individuals
were likely to be rapidly disseminated around a
plant during the struggle of organization," Irving
° See also Eduard Fields „ Inc. v N L .R B:, 325 F 2d 754, 760 (C A 2),
N L R B . v Elias Brothers Big Boy, Inc , 327 F 2d 421, 422-423 (C A 6),
Santangelo & Co v N L R.B , 364 F 2d 979, 981 (C A 10), NLRB v.
Moore Dry Kiln Co , 320 F.2d 30,32 (C A 5)
11 N L R B. v. W. C Nabors Company, 196 F 2d 272, 276 (C.A 5) cert.
denied 344 U.S. 865, cited with approval in N L R.B v Geigy Company,
211 F.2d 553, 557 (C A 9) cert denied 348 U S 821
Air Chute Co., Inc. v. N.L.R.B., 350- F.2d 176, 179
(C.A. 2), and cases cited, enforcing 149 NLRB
627. The statement to Brugger would affect the
other employees, and the 'character and length of
the efforts Respondent exerted with Brugger would
indicate that was its purpose. In the conversation,
Respondent showed it was aware that Brugger was
signing up the employees and trying to get the
Union in. During that same conversation, when
Brugger told Respondent he had signed up 10 cards
and turned them over to the Union, Respondent's
further discussion of Brugger regarding what he
wanted would indicate that Respondent was now
viewing Brugger as the spokesman of its small
force. This is more apparent in the discussion in
March.
As previously related, when Brugger returned to
the job about the first of March, the father singled
him out again for discussion. The granting in March
of the promises made on January 24, 1 find not to
have been a violation, since this was effectuating a
promise which, as I have found, was itself legally
made.13 This, however, is not the- whole story. The
father impressed upon Brugger that from here on
Brugger should be the spokesman when there were
any complaints. Respondent stressed that he "did
not want the Union in ... or any more-union talk in
the yard," and that they were to be with, him "100
percent." This was notification to the employees,
through Brugger whom Respondent singled out as
the intermediary, regarding future complaints, that
all discussion concerning wages, conditions, or
grievances were to be handled without recourse to
the Union. This too was an interference with their
freedom of choice as guaranteed by Section 7 and
likewise in violation of Section 8(a)(1). Further, it
was a repudiation of the principle of collective bar-
gaining, and this brings us to the issue of whether
Respondent's refusal to bargain was a violation of
Section 8(a)(5).
2. The refusal to bargain with the Union in
violation of Section 8(a)(5)
Where a majority of employees in an appropriate
bargaining unit have signed- cards designating a
union as their bargaining agent, there is an obliga-
tion on the part of the employer to bargain collec-
tively with the union on request, unless this refusal
to do so is motivated by a good-faith doubt of the
union's majority.14 It is well established that a
union's filing a representation petition- does not of
itself dispense with an employer's duty to bargain
on the strength of the majority inhering in the
" Cf Divco-Wayne Industries, Inc, 154 NLRB 974, 977, Price's IGA
Foodliner, 141 NLRB 599, 603 -
"Joy Silk Mills Co v. N.L R B., 185 F 2d 732, 741 (C A D C ) cert de-
nied, 341 U.S 914 Accord N L R.B v Gotham Shoe Manufacturing-Co ,
359 F 2d 684, 686 (C.A 2), and cases cited; N L.R B v Overnite Trans-
portation Co, 308 F 2d 279, 283 (C A. 4), N.L.R.B v. Cumberland Shoe
Co_, 351 F 2d 917, 920-922, NLRB v. Fosdal Electric,- 357 F 2d 784
(C A 7).
350-999 0 - 71 - 35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, unless the employer doubts the good faith of
the union's majority. See Irving Air Chute, Inc., 149
NLRB 627, 629, enfd. 350 F.2d 176 (C.A. 2); IUE
[S.N.C. Manufacturing Company] v. N.L.R.B., 352
F.2d 361, 363 (C.A.D.C.) cert. denied 382 U.S.
902. Respondent here never challenged the validity
of the employees' designation of the Union as their
bargaining agent. See supra, fn. 3. Indeed, it never
replied to the Union's bargaining request.
Respondent has stated in this record that it will
only bargain if â–ºthe Union demonstrates its majority
in an election in a Board representation proceed-
ing. However, by the unfair labor practices previ-
ously described, Respondent so far impinged upon
the employees' freedom of choice as to render im-
possible the holding of a free election on which it
now insists . The warning given to Brugger during
the long discussion with him on January 25 that if
the Union came in Respondent would cut hours
and lay off employees the first chance it had, com-
municated as it would be expected to be to the em-
ployees (Irving Air Chute v. N.L.R.B., 350 F.2d at
179), would hardly be calculated to give the em-
ployees a sense of security concerning how they
were to vote. A vote of yes meant the cutting of
hours and layoff at the first opportunities.
Respondent stresses that its actions even if illegal
took place before the Union's demand for recogni-
tion. On that score it overlooks its conversation the
first part of March, when it again called Brugger to
the office. This time after stating the promises were
now being put into effect, Respondent adjured
Brugger in terms calculated to be conveyed to the
employees that they were to avoid resorting to the
Union in respect to working conditions or
grievances, and to deal directly with Respondent
through Brugger as intermediary . Yet, as the Board
pointed out in Post Houses, Inc., 161 NLRB No.
102, enfd. 384 F.2d 463 (C.A. 3), even if the unfair
labor practices occurred entirely before the Union
demanded recognition, it would not of itself be
decisive of whether in refusing to bargain, the
Respondent violated Section 8(a)(5). As the Board
stated (adopting the TXD at 1175) the significance
lies not in "whether Respondent's conduct
preceded or followed the Union's demand" but in
whether the purpose or necessary effect of Respon-
dent's action was to prevent a free choice of bar-
gaining representative. The course of action in
Respondent's prolonged and pointed discussions
with Brugger were calculated to prevent the em-
ployees from exercising a free choice in an election.
In these circumstances, the only thing left was to
give effect to the majority as reflected in the
designation assigned by the cards. Since Respon-
dent's failure to bargain collectively on the basis of
the cards was not in good faith, its refusal to bar-
gain with the Union was in violation of Section
8(a)(5) of the Act.
IV. THE REMEDY
Respondent has been found to have engaged in
conduct in violation of Section 8(a)(1) and (5). It
will be accordingly recommended that Respondent
cease and desist therefrom.15 As affirmative action
to effectuate the policies of the Act, it will be
recommended that Respondent bargain collectively
with the Union as representative of the employees
in the agreed bargaining unit. While that remedy
flows from the refusal to bargain in violation of
Section 8(a)(5), the bargaining remedy would here
be appropriate even if there had been no technical
violation of Section 8(a)(5) but only the violations
of Section 8(a)(1) as found. The appropriateness of
such remedy derives from the fact that a majority
of the employees had selected the Union as their
bargaining representative , and Respondent in the
discussions on January 25 and the first part of
March engaged in conduct in violation of the em-
ployees' freedom of choice and in rejection of the
collective-bargaining principle . On that basis, it is
well established that the remedy calls not only for a
halt to the 8(a)(1) violations but for an affirmative
bargaining requirement in order to give effect to
the choice made by the employees before these
violations were committed. 16
Upon the basis of the findings and the entire
record, I hereby state the following:
CONCLUSIONS OF LAW
1. All truckdrivers, warehousemen and yardmen
of Respondent employed at its Waltham, Mas-
sachusetts, plant but excluding office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(11) of the Act constitute an appropriate unit
for the purpose of collective bargaining, within the
meaning of Section 9(b) of the Act.
2. At all times since January 24, the Union has
been the exclusive bargaining representative of the
employees in said unit.
3. By interrogating employees in respect to ac-
tivity on behalf of the Union and threatening em-
ployees with reductions in hours and layoff of em-
ployees in the event the Union becomes the em-
ployees' bargaining representative, and by refusing
to bargain collectively with the Union as the exclu-
sive collective-bargaining representative of the em-
ployees in said unit, Respondent has engaged in un-
fair labor practices within the meaning of Section
8(a)(1) and (5) of the Act affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
15 The order should be in broad form in view of the threats made of what
Respondent would do" if the shop should go union"
'6 N L R B v Delight Bakery, Inc, 353 F 2d 344, 347 (C A 6), J C
Penney, Co v N L R B, 384 F 2d 479, 484-485 (C A 10), Wauccu Steel
Corp v N L R B, 377 F 2d 369, 373-374 (C A 7), International Union,
United Automobile [ Aero Corporation ] v N L R B , 363 F 2d 702, 707, fn 7
(C A D C ), Editorial "El Imparcial" Inc v N L R B, 278 F 2d 184, 187
(CA 1)
WALTHAM LIME & CEMENT CO.
On the foregoing findings and conclusions and
the entire record, I, pursuant to Section 10(c) of
the Act, issue the following:
RECOMMENDED ORDER
Waltham Lime & Cement Co., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating any employee regarding mem-
bership or activity on behalf of International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
379, or any other labor organization, for the pur-
pose or with the foreseeable result of interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the
Act.
(b) Threatening employees to cut hours or lay
off employees at the first opportunity if the Union
should come into the plant , or threatening any em-
ployee specifically that he will be one of the first to
be laid off in such an event, or warning employees
that they must hereafter not talk about the Union
and must have all terms, conditions , or grievances
handled on a direct basis with Respondent without
seeking aid or assistance from the Union.
(c) Refusing to bargain collectively with the
above-named Union as the exclusive collective-bar-
gaining representative of the employees in the unit
described in paragraph 2(a) hereof.
(d) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action, which it
is found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
379, as exclusive collective-bargaining representa-
tive of its employees in the unit described below in
respect to grievances, labor disputes, wages, rates
of pay, vacations, paid holidays, and other benefits,
hours, or other conditions of work, and, if an un-
derstanding or accord is reached, embody the same
in a signed written agreement . The said unit is: All
truckdrivers, warehousemen and yardmen of the
Respondent employed at its Waltham, Mas-
sachusetts, plant but excluding office clerical em-
ployees, guards, and supervisors as defined in Sec-
tion 2(11) of the Act.
(b) Post at its plant in Waltham, Massachusetts,
copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by
the Regional Director for Region I. after being duly
signed by Respondent 's representative , shall be
posted by 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 Respon-
531
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing,
within 20 days from the date of the receipt of this
Recommended Order what steps Respondent has
taken to comply herewith.18
The complaint is dismissed in respect to all al-
legations not-herewith sustained.
'r 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
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 "
1" In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL, on request, bargain collectively
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local 379, as the exclusive represen-
tative of all our employees in the following ap-
propriate unit:
All truckdrivers, warehousemen and
yardmen of the Respondent employed at
its Waltham , Massachusetts , plant but ex-
cluding office clerical employees, guards
and supervisors as defined in Section
2(11) of the Act.
WE WILL embody in a signed document any
agreements reached with the above Union.
WE WILL NOT question any employee regard-
ing his membership or activity on behalf of that
or any other union for the purpose or with the
foreseeable result of interfering with , restrain-
ing, or coercing employees in the exercise of
their rights guaranteed by the National Labor
Relations Act.
WE WILL NOT threaten employees to cut
hours or lay off employees if the Union comes
into the plant, or threaten any employee that
he will be one of the first to be laid off if the
Union comes in, or warn employees that they
must hereafter not talk about the Union, and
must handle all terms, conditions, or
grievances directly with the Company and not
seek the aid or assistance of the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the rights guaranteed by the Na-
tional Labor Relations Act.
WALTHAM LIME &
CEMENT Co.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive 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, 20th Floor, John F. Kennedy Federal Build-
ing, Cambridge and New Sudbury Streets, Boston,
Massachusetts 02203, Telephone 223-3300.