Green Colonial Furnace Company Ard International Union Of Mine, Mill And Smelter Workers, 161 (1943)

Docket Number:C-2661

In the Matter of GREEN COLONIAL FURNACE COMPANY ard INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case No. C-2661.--Decided August 25, 19/3 DECISION AND ORDER On June 28, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. Oral argument was held before the Board in Washington, D. C., on August 3, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

The Board has considered the Intermediate Report, the briefs and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and qualifications noted below:

1. The Trial Examiner considered two anti-union statements of Plant Superintendent Woodyard, deceased at the time of the hearing, as part of the totality of the respondent's conduct which violated the Act. The respondent contends that Woodyard's statements should not be considered because they are too remote from the events which form the basis of the present proceedings. It appears that these statements were uttered by Woodyard in 1936 and 1939, and are not directly related to any of the conduct set forth in the complaint, which alleges the commission of unfair labor practices only during 1943.

Moreover, the record indicates a definite hiatus from 1939 to 1943 in any conduct violative of the Act. Under all the circumstances, we are of the opinion that Woodyard's statements are not properly a part of the unfair labor practices involved in this proceeding, and we therefore reverse the Trial Examiner's findings to that extent.

The statements, however, are clearly anti-union, and we believe that they are properly cognizable to establish the respondent's background of hostility to unions.

2. The Trial Examiner found, and we agree, that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. He based this finding upon the totality of the respondent's conduct as evidenced, among other things, by two speeches of President Percival addressed to the assembled employees in February and March 1943, shortly after the commencement of the Union's organizational campaign. The respondent contends that the statements contained in these speeches were not coercive but were mere expressions of opinion protected by the constitutional guarantee of freedom of speech and hence that they can form no basis for a finding of a violation of the Act. There is no merit to this contention. In both speeches Percival emphasized that it was not necesary for the employees to join a union in order to obtain all possible benefits from the respondent and in effect invited the employees to continue to bargain on an individual basis as in the past; in the course of the February speech Percival stated, 'If you think you can get an outside bargaining agency to come in here and do better with me than you can, you don't know me'; and at the conclusion of the March speech he threatened to close the plant if the employees were not satisfied with existing conditions. Obviously, such statements are no mere expressions of opinion but are clear and positive threats to exert economic pressure upon the employees to defeat their efforts at self-organization. In any event, like the Trial Examiner, we do not base our finding of the respondent's violation of Section 8 (1) solely upon the statements contained in the two speeches but rather upon the respondent's whole course of conduct, as set out in the Intermediate Report, of which the speeches are but a part.1 3. The Trial Examiner found that the respondent, following the shut-down of its plant from March 25 to April 5, 1943, discriminatorily denied reinstatement to employee George Thomas until April 7, 1943.

We are unable to agree with this finding. There is no basis in the record for inferring that the slight delay in recalling Thomas was due to his union membership and activities. It is not unlikely that, in the process of making the necessary readjustments attendant upon the reopening of the plant, the respondent had no immediate need for Thomas. Under all the circumstances, we do not consider a delay of 2 days unreasonable. Moreover, when viewed in connection with the Trial Examiner's finding, with which we agree, that Thomas was SSee N. L. R. B. v. Virginia Electric t Power Co., 314 U. S. 469.

not assigned less remunerative employment after his reinstatement,2 we believe that the evidence is insufficient to warrant a finding of discrimination in the delay in his reinstatement.

4. The Trial Examiner found that the respondent violated Section 8 (5) of the Act by refusing to bargain with the Union when such a request was made of President Percival while he was testifying in the hearing before the Trial Examiner. We do not agree. The record is clear, and we find, that the respondent's refusal was based upon a genuine doubt as to the Union's majority within the appropriate unit. The respondent was contesting the status of 9 employees, contending that they should be included within the unit; on the other hand, the Union urged that the 9 employees should be excluded from the unit. The Trial Examiner reserved his ruling on this issue and found in his Intermediate Report that 2 of the disputed employees should be included in, and 7 excluded 3 from, the unit. Upon the basis of these findings the Trial Examiner concluded, and we agree, that the appropriate unit consisted of 61 employees, 34 of whom were members of the Union at the time of the hearing. Had we or the Trial Examiner sustained the respondent's position as to the other 7 employees, none of whom were union members, the Union would not have had a majority. The record indicates that the respondent was acting in good faith in contending for the inclusion of all 9 employees who, in fact, as the Intermediate Report shows, were border-line cases. Moreover, the respondent stated at the hearing that it would recognize and bargain with the Union if satisfactory proof of majority representation within the appropriate unit were shown. Since the respondent was motivated by a bona fide doubt as to the Union's majority within the appropriate unit, and since such doubt was not resolved during the hearing, it was justified in refusing to bargain at that time. A refusal under these circumstances does not constitute a violation of the Act even if the respondent's contentions ultimately prove to be wrong. In view of the foregoing findings, we deem it unnecessary to determine whether a request to bargain made during the course of a Board hearing is timely and appropriate.

2 This finding is made on page 13, lines 13 to 17, of the Intermediate Report. The Trial Examiner's concluding finding of discrimination in assigning Thomas less remunerative work (Intermediate Report, page 13, lines 31 to 33) is apparently an error, and we so find.

3 Five of these were employed as 'furnace installers' and were used almost exclusively to install and service furnaces sold by the respondent at retail in Des Moines. Occasionally, however, they were used in the plant to do general laborers' work and for this reason the respondent contended that they should be included in the plant unit. We have consistently held, however, that this type of employee is properly excluded from an appropriate unit of production and maintenance employees, and we so find herein. Matter of Link-Belt Speeder Corp.,

See also Matter of Wire & Iron Products Inc.,

ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Green Colonial Furnace Company, Des Moines, Iowa, and its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discouraging membership in International Union of Mine,

Mill and Smelter Workers, C. I. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment;

(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

(a) Offer to Charles Beebe, Archie Exline, and V. R. Jones, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges;

(b) Make whole Charles Beebe, Archie Exline, and V. R. Jones for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from April 5, 1943, to the date of the respondent's offer of reinstatement, less his net earnings during said period;

(c) Make whole Wells Daggett for any loss of pay he has suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as...

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