United States Gypsum Co.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tice and direct that persons employed during the payroll period ending immediately next preceding the date of such Direction of Election be permitted to vote. In view of the relatively brief periods of employment afforded car- penters and set erectors by members of the Society,, and the frequent interchange of employment by the carpenters and set erectors among members of the Society and other companies in the industry, we shall depart from our usual eligibility rule.,, We shall direct that employees in the appropriate unit who have worked for one or more of the em- ployer members of the Society for a total of 2 or more days 5 during the 6-month period immediately preceding the date of this Decision and Direction of Election are eligible to vote in the election. Thus, employees who would otherwise be eligible to, vote will not be disfran- chised if, immediately prior to the election, they happen to be,employed by a producing company not involved in this election.6 [Text of Direction of Election omitted from publication in this volume.] STelevision Film Producers Association, et al, supra Norcal Packing Company, et al, 76 NLRB 254 , The Independent Motion Picture Pro- ducers Association, et at., supra. UNITED STATES , GYPSUM- COMPANY and INTERNATIONAL WOODWORKERS of AMERICA,: CIO. Case, No. 15-C.1-134. , May 1, 1951 Decision and Order On September 8, 1950, Trial, Examiner Wallace E. Royster issued _ his Intermediate Report in the above-entitled proceeding , finding that Respondent had engaged in and1 was engaging in certain unftiir labor practices, and, recommending that it cease and desist therefrom and „take certain affirmatives action, as set forth in the copy of the Inter mediate, Report attached , hereto.. Thereafter. Respondent ' filed ex- ceptions to the Intermediate Report, and .a, supporting brief. Re- spondent's request for oral, argument, is, denied because the record and brief, in our opinion , adequately set forth the, position of, Respondent. The Board 1 has reviewed the rulings of. the Trial Examiner at the hearing, and finds that no prejudicial error was committed. ; The rul- ings are hereby affirmed.2 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Houston and Reynolds] 2 The Trial Examiner propeily denied Respondent 's motion to dismiss the complaint insofar as it alleged as unfair labor practices acts not set forth in detail in charges filed within 6 months of their occurrence These acts occurred within 6 months of the filing of the original charge It is not necessary that all details included in the complaint be set forth in the charge which tolls the statute of limitations Kansas Milling Company v. N L R B, 185 F 2d 413 (C A 10), enforcing 86 NLRB 925; Cathey Lumber Company, 86 NLRB 157 , enforced , 185 F. 2d 1021 ( C. A. 5) ; Stokely Foods, Inc., 91 NLRB 1267. 94 NLRB No. 27. UNITED STATES GYPSUM COMPANY 113 The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, to the extent that they are consistent with our Decision and Order below. 1. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by interrogating its employees as to their attitude toward the Union.3 2. We agree with the Trial Examiner also that Respondent unlaw- fully refused to bargain collectively with the Union. We hold that Respondent's entire course of conduct shows that it engaged only in `'surface bargaining" 4 and that its negotiations with the Union were not carried on in good faith with an open mind or a sincere purpose to reach an agreement.' The evidence upon which we base this finding is as follows : (a)From the time in July 1948 when the Union first claimed to represent its employees, Respondent frequently expressed its intense dislike for the Union and its desire to keep that labor organization from its plant. During the weeks preceding the representation elec- tion held on September 17, 1948, Respondent went further and freely predicted to employees that if the Union won the election its bargain- ing with Respondent would result in an impasse, a strike, and the moving of the Greenville plant. This hostility to the Union continued even after the Union had won the elections (b) At the first short bargaining conference between Respondent and the Union, the former's chief spokesman said, in effect, that it would be a waste of time for them to discuss union security, checkoff,' straight seniority, and arbitrations "We will negotiate it," he de- clared, "but we will not agree to it." This was not mere bargaining 3 Stan dard-Cooea-Thatcher Company, 85 NLRB 1358 ; N L R B v National Plastic Products Co , 175 F 2d 755 (C. A 4) , N L. R B v Kopman-Woracek Shoe Mfg. Co , 158 F. 2d 103 (C. A 8). 4 N L R B v Whittier Mills Co„ 111 F. 2d 474, 478 (C A 5). IN L R B V Reed cC Prince Mfg Co , 118 F 2d 874, 885 (C. A. 1) ; N. L R. B. v. Tower Hosiery Mills, Inc, 180 F 2d 701 (C. A 4). Smith and various other supervisors continued to interrogate employees about their union attitudes and to make pi edictions regarding the troubles which the Union would being to'the plant and its employees 4 We do not agree with the Trial Examiner that checkoff is not a matter regarding which the Act requires cniploveis and unions to bargain The case of Hughes Tool Company v. N L R B , 147 F 2d 69 (C A 5), on which the Trial Examiner relies, was decided in 1945, before the enactment of the Labor Management Relations Act Whatever the status of checkoff may have been under the Wagner Act (compare the holding in the Hughes Tool case with that in N L R B v Reed & P) ince, 118 F 2d 874, 883 (C A 1) and M T Stevens & Sons Company, 68 NLRB 229), we are satisfied from the language and legislative history of the 1947 amendments that Congress intended that the bargaining obligation contained in Section 8 (a) (5) should apply to checkoff. H R 3020, 80th Con- gress, 1st Sess , p 10 , H R Rep No 245, pp 29, 71 , H R. Conf. Rep. No 510 on H R. 3020, p 34 8 Respondent's contention that arbitration is not bargainable is rejected. N L R B v. Boss Mfg Co, 118 F. 2d 187, 189 (C A 7) ; N L R B v Montgonvesy Ward & Cc, 133 F 2d 676 (C A 9) 953841-52-vol 94--9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strategy; it reflected a fixed determination not to bargain in any practical sense on four matters which are customary subjects of col- lective bargaining. That determination was clearly revealed when Respondent distributed to its employees a printed booklet empha- sizing its rigid attitude regarding any union security, checkoff, straight seniority, or arbitration. It was revealed also by Works Manager Smith's statement to his employees that "we would shut it (the plant) down and move it before we would agree to those four things. ... (c) Respondent, without consulting the Union, unilaterally granted wage increases to its employees on December 27, 1948, only 3 months after the Board's certification of the Union. This was per se an unlawful refusal to bargain.10 For the reasons stated by the Trial Examiner in his Intermediate Report, we find no merit in the argu- ment that Respondent was justified in ignoring the statutory bargain- ing representative because of the Union's delay in beginning contract negotiations," or because of Respondent's alleged practice of main- taining a certain wage relationship with its competitors. (d) Respondent again ignored the Union in making its January and February 1949 layoffs. At a bargaining conference held on January 27, 1949, the Union submitted an agreement which, among other things, proposed that layoffs be made according to seniority. The Union thus indicated its interest in the layoff problem. Although a serious drop in orders for finished products had taken place the previous week and Respondent was then considering making a' sub- stantial reduction in its work force, it did not so inform the Union. A week later, without notice to the Union, it commenced laying off employees. By so doing it deprived the Union of any voice regarding a highly important condition of employment which was a proper subject for collective bargaining.12 ,In its brief Respondent urges for the first time that it was not required to bargain regarding union security because the Union had not qualified in an election held under Section 9 (e) of the Act. No such objection was ever expressed by works Manager Smith in any of his conferences with the Union On the contrary, his announced determination to close the plant rather than agree to any form of union security indicates clearly that his attitude would not have been any different even if the Union had been so qualified. His position on this matter was plainly the result of a closed mind regarding union security generally. Yet union security has long been accepted as a bargainable subject. National Licorice Co v N L R B , 309 U. S 350, 360 Such inflexibility by an employer or union on a single issue, if it stood alone, might not constitute evidence of bad faith. As part of a pattern of resistance to the collective bargaining process, however, it lends evidentiary weight to the conclusion that Respondent did not bargain in good faith. (See footnote 17 below.) In finding that Respondent violated Section 8 (a) (5) of the Act, Member Reynolds does not in any manner rely on Respondent's refusal to bargain regarding union security, for until the Union qualifies pursuant to a Section 9 (e) (1) election, in his opinion Respondent is not obligated to bargain concerning union security See section 2 (a) of the Board's Order, infra. to N L R B v. Crompton-Highland Mills, 337 U S. 217. li An employer cannot disregard the existence of a proper bargaining representative because the agent may be somewhat slow in starting negotiations. Motor Valve & Mann. facturing Co v. N L R B., 149 F. 2d 247 (C A. 6). 12 National Licorice Company v. N L. R. B , 309 U. S. 350, 360. UNITED STATES GYPSUM COMPANY 115 Respondent says that to have notified the Union and given it an opportunity to- discuss the layoffs would have resulted in an unreason- able delay in reducing its work force. We cannot agree. Respondent for almost 2 weeks was considering the question of layoffs. When made they were spread over a period of several weeks. We believe that a sincerely cooperative employer, aware of the probable necessity of reducing the number of his employees, would have called in the representative of his employees immediately to discuss his proposed selections for layoff. We are satisfied that Respondent's failure to do so reflected its belief, not that such consultation would cause un- reasonable delay, but that the problem of layoff was no concern of its, employees' selected representative.13 (e) Finally, Respondent's counterproposals, which were submitted to the Union on June 23, 1949, furnish additional evidence of bad faith. In this proposed contract Respondent retained for itself un- restricted power to establish individual wage rates and job classifi- cation, grant general wage increases, and select employees for layoff, transfer, and promotion.14 Further, it banned union activity of all kinds on company property even on the employees' own time, restricted the right of the Union to have representatives present at grievance meetings (limiting it to situations where the employee requested the. Union's presence)," and required the Union to assume responsibility for unauthorized as well as authorized strikes in its plants. In sum, Respondent proposed shackles for the Union, in derogation of the latter's bargaining rights, and unrestrained freedom for itself. Such a contract, if entered into, would have amounted to a formal negation of the collective bargaining principle. Respondent must have known that no union could possibly have agreed to it. Respondent argues that its failure to reach agreement with the Union resulted from (1) the Union's delay in setting and attending bargaining conferences and (2) the existence of a genuine impasse regarding union security, checkoff, straight seniority, and arbitration. We cannot agree. However dilatory the Union may have been, it was Respondent's attitude and conduct which doomed negotiations from the beginning. None of this was attributable to the Union's procrasti- nation. It cannot therefore excuse Respondent's failure in its statutory duty." a Won ks Manager Smith so testified "The insistence on unilateral control of such matters as layoffs, transfers , and wage adjustments and increases is evidence of bad faith bargaining . David I Cohen, 91 NLRB 1363 Dixie Culvert Manufacturing Co, 87 NLRB 554; Franklin Hosiery Mills, Inc., 83 NLRB 276 '"Cf Bethlehem Steel Company, Shipbuilding Dwision, 89 NLRB 341 "Motor Valve S Manufacturing Co v. N L. R B , 149 F 2d 247 (C. A. 6) ; ef. N L. R B v. Express Publishing Co, 111 F. 2d 588 (C. A '5), reversed on other grounds, 312 U S 426. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for the alleged impasse regarding union security, checkoff, straight seniority, and arbitration, it is true that Respondent was not required to yield on these or any other specific union proposals. If Respondent's intransigeance on these matters stood alone, therefore, we might well not regard it as an indication of bad faith. Associated with all the other conduct here present, however, it is further evidence of Respondent's intention to. avoid coming to any agreement at all with the Union." Respondent's willingness to meet with the union representatives and explain to them the reasons for its inflexibility v, as not an acceptable substitute for a sincere effort to reach an accord 18 Accordingly, we find that from and after December 27, 1948 (except for the period from February 7 to April 4, 1949), Respondent refused to bargain with the Union, in violation of Section 8 (a) (5) and (1) of the Act 1° -3. The discrimination a. Hiram Peoples In connection with the Trial Examiner's findings as to Hiram Peoples, with which we agree," several additional observations may be made. 17 "An employer ' s mtiansigeance on a particular issue has been found to evidence bad faith in bargaining where the record as a whole has mdlcated that such intransigeance reflected an intention to avoid coming to any agreement " National .ltaiitime Union of America, 78 NLRB 971 , 981, entoiced 175 F 2d 686 ( C A 2), cettnoraii denied 338 U S 954 16AMs-Chalmers Manufacturing Co v N L R B, 162 F 2d 435 ( C. A 7) ; N L R B v Boss tllanufacturinq Go, 118 F 2d 187 (C A 7) "The General Counsel disclaimed ani contention that there is is any unlawtul refusal to bargain from February 7 to April 4 , 1949 , the Tual Examunei thetefone found none. We adopt this finding solely on the ground that no exceptions to it have been tiled Respondent contends that it was not under an obligation to bargain with the Union during any of the periods undei consnde . atnon because the CIO was not contenponaneously in compliance with the filing nequn•enents of Section 9 (1), (g), and ( h) of the Act. It further contends that it was not required to bargain room mid-Decemnber 1945 to April 4, 1949, on the ground that duung that time a noncomplying local union was in existence at its plant However , the legunnements of Section 9 (f), (g), and (h) are purely nnocedu -al They do not limit the substantive conun'mnd of Section 8 (a) (3) New Jersey oat het Mills, Inc , 92 NLRB 604 ; West Texas Utilities Co y N L R B , 184 F 2d 233 (C A D C ) Mom cover , matters of compliance with Section 9 (f). (g), rind (h) are not litigable in Board proceedings Red Rock Company , 84 NLRB 521 , enforced 187 F 2d 76 (C A. 5) , Porto Rico Container Con poratron , 81) NLRB 1570 , Comfov t Spn ing Corporation, 90 NLRB 173 It can be noted , hovevei, that the Board has determined IiOm administrative Investrnations that the filing requirements of the Act were fully satisfied here, and that this was true even if, as the Court of Appeals held in N L Tt B v JTigbland Park Manu- facturing Co (184 F. 2d 98 (C. A 4 ), pending on writ of certiorari No 425, this Term), parent federations like the CIO are required to comply with those requirements Member Reynolds concurs in this disposition of the Respondent 's contention conceiving the Union ^ compliance status The tarts in this respect parallel those present in the New Jersey Cam pet ease Hence, although dissenting in that case, Reinber Reynolds considers himself bound by the decision therein 2-The Trial Examiner found that Superintendent Heyman aduutted that he called Peoples to his office the last day that Peoples worked and "that he might then have asked if the latter could weather a strike " We find, however , that Ncyman denied that UNITED STATES GYPSUM COMPANY 117 If Respondent were seeking to justify merely its selection of Peoples for layoff during February and early March, when production was abnormally low, we would, like the Trial Examiner, be inclined to accept Respondent's interpretation. During this period it is clear that operation of the cutoff saw was not a full-time job and that Peoples, if he had been retained, would have had to spend a good deal of his time on other tasks, perhaps including some work for which his small stature did not well qualify him. Respondent's production did not remain low. From March 15 to July 31 the fabricating department, where Peoples had worked, added so many employees to its payroll that it ended the period with more employees than it had had before the February layoffs.21 Neverthe- less Peoples was not recalled. It is Respondent's position that it dispensed with Peoples perma- nently because operation of the cutoff saw was at no time a full-time job, and because Peoples was not able to perform satisfactorily the other tasks to which it was constantly necessary that he be assigned. However, if Peoples was, during periods of normal production, re- quired to spend a substantial amount of his time on work other than the cutoff saw, as Respondent contends, and if in doing this other work he was as inefficient and unsatisfactory as Respondent says lie was, it is difficult to understand why Respondent did not hire some- one else in his place many months before February 1949. It must be remembered that, during his more than 2 years' service, he was never warned of possible discharge because of alleged poor perform- ance. At the time of his layoff on February 5, moreover, no mention was made of the shortcomings which Respondent now contends were so serious. Indeed, Superintendent Neyman admitted that he had offered to recommend Peoples "very highly" as a dependable worker on the cutoff saw. In justification, Respondent relies upon the testimony of some of its supervisors to the effect that the labor market in Greenville was very tight until the time of the February 1949 layoffs. We find this testi- mony unconvincing in the face of the statement by Works Manager Smith, who was in a better position to be informed on this matter than any of his subordinates, that the labor shortage in Greenville lasted only Into the first part of 1948. there was any talk about unions or strikes on that occasion His admission of possible inter rogation about a strike was with respect to it conversation with Peoples the previous Septombei 21 During the slack penod from February 1 to March 1S, 1949, the fabricating department terminated 38 employees, of which 26 were (like Peoples) classified as laborers. From March 15 to July 31 it terminated 37 more (of which 28 were laborers), but hired 85 (of which 60 were laborers) Thus the department ended July with 10 more employees (6 more laborers ) on its payroll than on February 1 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, as did the Trial Examiner, that Respondent, by failing to reemploy Hiram Peoples, discriminated against him because of his conspicuous union activity, in violation of Section 8 (a) (3) and (1) of the Act. b. Bennie Pearson Bennie Pearson had been employed by Respondent in the grinder room of its board mill more than 5 years at the time of his layoff on February 5, 1949. Toward the end of September 1948, the board mill superintendent, G. N. Vaught, called Pearson into his office during working hours, questioned him about the Union, and then ended up with: "Well, if you had a wife, would you let me or some other man come into your house and rule your house?" Pearson said, "No, Sir." Then .Taught said, "Hell, no. And the Company isn't going to do it either, not come in here and rule them." Before the Company would let them move in, he declared, it would shut the plant down 22 Early in January 1949, Pearson had another conversation with Superintendent Vaught, in which Vaught informed him that there was to be a layoff, adding: "They are going to lay you off, and I'm not going to open my mouth. They tell me you are around here getting these boys to join the Union." It is against this background that the termination of Pearson's employment on February 5, 1949, must be considered. Respondent attempts to justify its selection of Pearson for layoff on the ground that he was persistently tardy, that he was a shiftless worker and not to be depended upon, and that he let the grinder run empty. Yet Pearson's immediate superior, Foreman Jaynes Bentley, admitted that he never complained to any of the higher supervisors about Pearson's being late, or shiftless, or undependable. If Pearson really "let the grinder stay empty most of the time," as one of Respondent's witnesses testified, it seems unlikely that Re- spondent would have kept him in its employ for 5 years. As for Pearson's tardiness, we share the Trial Examiner's belief that this, although persistent, was less serious than Respondent would have us believe. Bearing in mind the testimony of Works Manager Smith that the labor shortage in Greenville came to an end early in 1948, we do not see why Respondent would have retained Pearson in its employ throughout the balance of that year if his lateness had been much worse than that of his fellow employees. According to Re- 32 The Trial, Examiner found that this conversation took place in early January 1949. Examination of the record convinces us that Pearson wac testifying to two different con- versations with Superintendent Vaught, one in September and one in January. Accord- ingly, we find that this particular conversation took place about the 23rd or 24th of September 1948. UNITED STATES GYPSUM COMPANY 119 spondent's witness Hendricks, the gatekeeper, "a lot of employees" would sometimes come in and punch the time clock before changing their clothes (as Pearson sometimes did) and thus would be late in reporting for work.23 Shift Foreman Mauceli admitted that he repri- manded Pearson for his lateness only five times over a period of 2 years, and that the last such occasion was 2 to 6 months before the date of his layoff. The grinder room superintendent, Shepherd, admitted that the most recent occasion on which Shift Foreman Mauceli had complained to him about Pearson's work was in July or August 1948, 6 or 7 months before his layoff. At the time of Pearson's dismissal, 24 of the 33 laborers retained on the board mill payroll had been hired more recently than he. Respondent's subsequent handling of Pearson's case sheds additional light upon its motive in terminating his employment. When sales and production improved, Respondent hired 33 laborers for the board mill between March 15 and July 31. This was 12 more than had been released during the slow period from February 5 to March 15. Al- though Pearson had been told that his layoff was temporary and that he would be recalled, Respondent never sent for him. He alone of the 6 men in the grinder room was never taken back to work. We find, as did the Trial Examiner, that Respondent's termination .of Bennie Pearson's employment on February 5, 1949, was motivated, not by a sincere dissatisfaction with his work, but by Respondent's hostility to his union activities, and that Respondent thereby violated Section 8 (a) (3) and (1) of the Act. c. Paul Johnson Paul Johnson was added to Respondent's pressboard department payroll on March 19, 1947.2' When the Union began to organize a local chapter in December 1948, Johnson attended meetings and led its prayers. He had previously persuaded some of the men at the plant to become union members. Early in January 1949, shortly before Johnson was laid off, Superintendent Wiley Swilley of the pressboard department came to where Johnson was working at one of the presses and informed Johnson that he had been told that Johnson "Hendricks' testimony that he never saw Pearson ring in after 7 o'clock tended to refute other evidence offered by Respondent to the effect that Pearson often came in extremely late We cannot accord weight to assertions in Respondent's brief as to what the time clock cards would have shown in Pearson's case The record reveals no denial by the Trial Examiner of any offer by Respondent to have these cards admitted in evidence, nor any testimony or stipulation as to their content 24 The Trial Examiner erroneously found that Paul Johnson had been hired on March 1, 1948, and laid off on February 23, 1949. The actual dates were March 19, 1947, and Jan- mary 26, 1949 . The mistakes resulted from the fact that Respondent had two Paul Johnsons in its employ It was the other Paul Johnson , who worked in the fabricating ,department , who was hired and laid off on the dates found by the Trial Examiner. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was one of the main leaders in the Union and had been doing some praying at the canon meetings. When Johnson admitted the praying, Swilley said, "Well, I thought you weren't going to join the union," and then walked on. On January 26, 1949, Paul Johnson was laid off and was never recalled. Respondent explains Johnson's termination on the ground that the curtailment in production referred to above made it necessary to make mass layoffs. Thus, Foreman Jack Gordon testified that Johnson was. laid off simultaneously with a group of 25 to 30 other men, and that this group had been selected on the basis of which were "the newest, the least versatile," and the least capable. However, Johnson was released on January 26, 3 days before the date given by Works Manager Smith as the date on which the man- agement had come to the conclusion that a reduction in staff would be necessary. Contrary to Gordon's assertion, only three other em- ployees in the pressboard department (and only five in the entire plant) were released along with Johnson, in advance of the numerous layoffs of early and mid-February. As for Johnson's relative length of service, two-thirds of the laborers retained in the pressboard department at the time of his lay- off were hired more recently than he. As to "versatility," there is no, showing in the record that,Jolnson was less versatile than the more recently hired laborers retained on the payroll after January 26. Johnson had previously been employed by Respondent in 1937 and again in 1946, in different departments. Within the pressboard de- partmnent itself he had worked on a variety of operations all over the department. There is no evidence, moreover, that Johnson was less strong or less skillful than the men who were retained after his layoff: At bottom, then, Respondent is relying upon its complaint that Johnson frequently left work to smoke or to talk and that he stayed too long in the smoking room. Yet Superintendent Swilley, who. often passed by where Johnson worked, admitted that he had never seen Johnson leave his work. Furthermore, Respondent's own wit- ness Joseph Brown testified : "Well, he didn't smoke so much, not as long as he was working with me." When asked if he had ever seen Johnson sneak off for a smnoke, Brown replied definitely that he had never seen him do so. Johnson's immediate supervisor, Foreman Jack Gordon, testified that Johnson was an "average" worker. It is not contended that Johnson was ever warned that his alleged excessive talking. smoking, or lingering in the washroom might result in his dismissal. It is not suggested, moreover, that Johnson's conduct in these re- spects had changed any since his rehiring in 1947. We believe that, if TnImson's behavior had been as annoying to Respondent as it now UNITED STATES GYPSUM COMPANY 121 contends, it would not have retained him on its payroll for almost 2 years. Once again, Respondent cites the labor shortage. And once again we note that Works Manager Smith testified that the shortage continued only through the first part of 1948. At the time of his layoff, Johnson was told by Superintendent Swil- ley that, he would be recalled when business improved. Business did improve. From March 15 to July 31, 1949, Respondent hired 62 laborers for the pressboard department. The total number of sepa- rations during the slow period from January 25 to March 15 had been only 14. Yet Johnson failed to receive a call to return to work. We find that Respondent laid off Paul Johnson on Jaiiuary 26, 1949, because of his connection with and activity on behalf of the Union, and not because of a decline in business,' and that in so doing Re- spondent violated Section 8 (a) (3) and (1) of the Act. 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 Respondent, United States Gypsum Com- pany, Greenville, Mississippi, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Making unilateral changes in wage rates, or in any other man- ner refusing to bargain collectively with International Woodworkers of America, CIO, as the exclusive bargaining representative of all the employees in the unit found appropriate in the Intermediate Re- port attached hereto. (b) Discouraging membership in International Woodworkers of America, CIO, or in any other labor organization of its employees, by discharging, laying off, refusing to reinstate, or failing to recall any of its employees, or in any other inanner discriminating in regard to their lure or tenure of employment, or any term or condition of their em- ployment. (c) Interrogating its employees concerning their union member- ship, activity, or attitude. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Woodworkers .of America, CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in 25 In this we go further than the Turd Examiner. who held that the failure to recall Johnson was discunuuatory, but that his original layoff was probably motivated by economic reasons We believe that the Trial Examiner 's finding in this respect was chiefly the result of the confusion in dates referred to in footnote 24 above. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other concerted activities for the purpose' of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Wood- workers of America, CIO, as the exclusive representative of all employees in the unit found appropriate in the Intermediate Report attached hereto, with respect to rates of pay, wages, hours of employ- ment, arbitration, seniority, checkoff, and other conditions of employ- ment (including union security, provided that the Union has been authorized under the provisions of the Act) and, if an understanding is reached, embody such understanding in an agreement. (b) Offer to Hiram Peoples, Bennie Pearson, and Paul Johnson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other. rights and privileges. (c) Make whole Hiram Peoples, Bennie Pearson, and Paul John- son in the manner provided in the Intermediate Report under the heading "The remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, except that back pay for Paul Johnson shall be computed from January 26, 1949. (d) Upon request, make available to the Board, or its agents; for examination and copying, all payroll records, social security pay- ment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (e) Post at its Greenville, Mississippi, plant, copies of the notice attached hereto and marked Appendix A 26 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for at least sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. 26 In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing." UNITED STATES GYPSUM COMPANY 123 Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL WOOD- WORKERS OF AMERICA, CIO, or in any other labor organization of our employees by discharging, laying off, refusing to reinstate, or failing to recall any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT interrogate our employees concerning their union membership, activity, or attitude, or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL WOODWORKERS OF AMERICA, CIO, 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, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL NOT make unilateral changes in wage rates. WE WILL bargain collectively upon request with INTERNATIONAL WOODWORKERS OF AMERICA, CIO, as the exclusive representative of all our employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, arbitration, seniority, checkoff, and other conditions of employment (in- cludin(y union security, provided that the Union has been au- thorized under the provisions of the Act) ; and if an understand- ing is reached, we will embody such an understanding in a signed agreement. The bargaining unit is : All production and maintenance employees at our Green- ville, Mississippi, plant, including firemen, but excluding watchmen, office clericals, storeroom clerks, testers, the head boiler operator, the fabricating leader, the warehouseman in the fabricating and shipping department, the head' saw filer, the quality leaders in the pressboard department, the unloading supervisor in the yard, and all other supervisors as defined in the Act. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Hiram Peoples, Bennie Pearson, and Paul Johnson immediate and full reinstatement to their former or to substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination. UNITED STATES GYPSUM COMPANY Employer. By ------------------------------------- Dated ------ ------------------- (Representative) (Title) This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Mr. Andrew P. Cai ter, and Miss Itelen F. Huns phi ey, for the General Counsel. JIr. J. B Touchstone, of Anniston, Ala, and Cllr. J B. Henna, of Jackson, Miss., for the Union. Macloash, Spray, Pi we & Uimdei wood, by Messrs Harold D Burgess and Arlando Cate, of Chicago, Ill, for Respondent. STATEMENT OF THE CASE Upon a charge and amended charges duly filed in this proceeding by Inter- national Woodworkers of America. CIO, herein called the Union, the Geneial Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, issued his complaint dated April 17, 1950, against United States Gypsum Company, Greenville, 'Mississippi, herein called Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfait labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, the amended charges, the complaint, and a notice of hearing were duly served upon the parties With respect to unfair labor practices the complaint alleged in substance that from on or about August 21, 1948, and thereafter, Respondent made statements to its employees for the purpose of discouraging collective bargaining and mem- bership in the Union, interrogated employees concerning union membership ; questioned employees concerning voting in a representation election ; exhorted employees to withdraw from the Union ; threatened to close the plant if the Union won the election, requested employees to persuade other employees to cease union activities; discriminatorily laid off Paul Johnson, Hiram Peoples, and Bennie Pearson, and on and after November 3, 1948, unlawfully refused to bargain with the Union, the majority representative of Respondent's employees in an appropriate unit In its answer dated May 3, 1950, Respondent admitted the jurisdictional allega- tions of the complaint, admitted that Johnson, Peoples, and Pearson were laid off on or about the dates alleged, did not contest the allegations concerning the appropriate unit or the Union's sometime majority in the unit, denied upon in- formation and belief that its employees were subjected to interrogittnon or threats in connection with union membership or activity, denied any discrimination in regard to the layoffs, and denied any unlawful refusal to bargain UNITED STATES GYPSUM COMPANY 125 Pursuant to notice a hearing was held before the undersigned Trial Examiner duty designated by the Chief Trial Examiner, in Greenville, Mississippi, on May 9. 10, 11, and' 12, and in New York, New York, on May 26, 1950 All parties were represented, participated in the healing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues At the opening of the hearing, counsel for Respondent moved to dismiss that portion of the complaint alleging a discriminatory refusal to reemploy Johnson and Peoples and the 8 (a) (1) allegations on the ground that they exceeded the specifications in the charges. The motion was denied A motion by the General Counsel made at the close of the hearing to conform the pleadings to the proof was granted without objection. None of the parties took avail of opportunity to- argue on the record All parties were granted to July 10 for the purpose of filing briefs A brief has been i eceived from Respondent' and the Geneial Counsel After the close of the hearing, a motion by the General Counsel to reopen the record to receive documentary evidence concerning the labor market in the Greenville area vi as denied Upon the entire record of the case and from my observation of the witnesses,' I make the following. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an ollice and place of business in Greenville, Mississippi, where it is engaged in the manufacture of insulating board and cardboard During 1949, Respondent pun chased logs, alum, and sizing valued in excess of $100,000. of which approximately 50 percent was shipped to Respondent from points outside the State of lVMlississippi. During the same period, Respondent's production exceeded $200,000 in value, fiPpioxunately 75 percent of which was shipped to points outside the State of Mississippi The jurisdiction of the Boaid is not contested II THE ORGANIZA'1ION INVOLVED International Woollwoikers of America, affiliated with the Congress of Indus- trial Organizations, is a labor organization admitting to membership employees of Respondent III. THE UNFAIR LABOR PRACTICES A. Interference , restiaoit, and coercion B'iom 1937 until May 1948 Respondent 's employees were represented by United Cement, Linie and Gypsum Workers, AFL In the spring of the latter year, the Union asked recognition and thereafter filed a petition On September 17, an election was held by the Board with the Union the only labor organization on the ballot. Works Manager S A Smith testified that several months prior to the election lie told his foremen that he wanted nothing to do with a CIO union ; that the recoils of such unions were replete with instances of violence, work stoppages, and stiikes , that lie desired that no "outsiders " come in to disturb the existing i A motion bi Respondent for peinussion to file a ieiily biief was denied on August 14, 1950, bi the Chict Tual Exaininei ' The testimony of James Bentley was taken by deposition in Memphis, Tennessee, on DLU 22, 1950 1 had, of course, no opportunity to ohseive bun Appaienth the AFT, of ganization had ceased to function 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD harmonious relation between management and employees, and that he wanted to do all that legally was possible to persuade the employees not to select a CIO union. Smith instructed the foremen, lie testified, that it was their responsibility to inform the employees about the CIO, to point out benefits which Respondent had granted, to tell employees that they could do as they chose but that no union could secure an agreement with Respondent granting absolute seniority preference, checkoff of dues, union shop, or arbitration. On September 16, the day preceding the election, Smith assembled all the employees, told them that the Union could gain no more for them than Respondent would give, and warned that Respondent would close its plant and move its operation before it would agree to absolute seniority, checkoff of dues, a union shop, or arbitration. During the preelection period, Smith spoke, he testified, to 40 or 50 individual employees concerning the Union and in the course of these conversations asked each his opinion of the Union. Shift Foreman Joe Mauceli testified that he asked employees how they felt about the Union, told them that Respondent had treated them in a fair manner, and expressed his belief to them that the Union could not gain more for them than they then had. Wiley Thomas Swilled-, superintendent in the pressboard department, testified that he told the employees that the Union had made rash promises which it could not fulfill, recited the benefits which Respondent had granted, and asked them to vote "No" in the election. Swilley testified that Manager Smith had instructed him to find out the sentiment of employees toward the Union but that he did not question employees directly in that connection. G. M. Vaught, superintendent of the board mill, testified that he probably asked employees how they felt about the Union both before and after the elec- tion and recalled that he had exhibited a union application card to an employee, F. M. Howell, bearing Howell's signature and reminded Howell that the latter had earlier said he wanted nothing to do with the Union Vaught testified further that he told employees that Respondent would not agree to checkoff of dues or a maintenance of membership provision in any contract. Superintendent S. O. Neyman testified that he talked to a number of employees, singly and in groups, before the election, asked them why they thought that a union was needed, suggested that he was as capable of settling their complaints as an "outsider," and told them they were free to join the Union if they chose but that lie pref erred that they not do so. Neyman testified further that he questioned employee Hiram Peoples as to why Peoples thought a union was necessary. Shift Foreman Jack M. Gordon testified that he asked employee Paul Johnson how the latter felt about the Union. Foreman James S. Bentley testified that lie asked 8 or 10 employees what they thought about the Union and if they believed that one was needed. Employee F. M. Howell, an observer for the Union at the election, testified .credibly and without contradiction that about 2 weeks before the election, Man- ager Smith asked why the latter wanted a union, inquired how he was going to -vote, and said that if the Union won there would be a strike. During the same period, according to Howell's credited and undenied testimony, Superintendent Vaught asked him who started the Union, said that Respondent wouldn't "do business" with the Union, and that the plant would be closed before Respondent would agree to seniority, arbitration, and checkoff. As shown above, Respondent's active management force headed by Works Manager Smith strongly opposed the selection of the Union and sought earnestly UNITED STATES GYPSUM COMPANY 127 to persuade the employees that such a choice would not result in any gain for them. To the extent that Respondent's electioneering was confined to an ex- pression of its desires, appeals to reason, or noncoercive phrophecy as to the result of organization, it is not contended, and I do not find, that any violation of the Act occurred. However, the conversations with employees were rarely con- ducted within such confines. Smith admitted that he asked 40 or 50 employees how they felt about the Union ; Foreman Mauceli testified that he, also, so inter- rogated employees, explaining that foremen were instructed to do so by Smith. Vaught also admitted interrogating some of the employees concerning the Union and admitted that he may have indulged in similar questioning after the elec- tion. Superintendent Neyman conceded that before the election he asked the employees in his department why they felt they needed a union but did not recall asking any if they were union members or how they intended voting. Such interrogation whether accomplished by the direct question, "Are you a member of the Union"? or with more subtlety by inquiring of employees how they "feel" about a union has consistently been held to violate the Act.4 I find that by such interrogation of its employees at about the time of the election and there- after, Respondent interfered with, restrained, and coerced them in the exercise of their rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. B. The refusal to bargain 1. The appropriate unit; the Union's majority In the representation cases which resulted in the election of September 17, the Board found all production and maintenance employees including firemen, but excluding watchmen, office clericals, storeroom clerks, testers, the head boiler operator, the fabricating leader, the warehouseman in the fabricating and ship- ping department, the head saw filer, the quality leaders in the pressboard de- partment, the unloading supervisor in the yard, and all other supervisors as defined in the Act, to constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. After the election of September 17, in which a majority of the votes was cast in favor of the Union, the Board on September 27 issued its certificate to the Union as the exclusive representative of the employees in, the appropriate unit for purposes of collective bargaining. Neither the propriety of the unit nor the validity of the certifica- tion was contested in the present proceeding. I find, therefore, that the unit described is appropriate and that at Al times material herein, after September 17, 1948, the Union had been and now is the exclusive bargaining representative of the employees in the unit. On October 21, the Union requested a bargaining conference and Respondent agreed to meet on November 4. On November 3, however, J B Hanna and J. B. Touchstone, representatives of the Union, telephoned Works Manager Smith that they would be unable to keep the appointment. In response to Smith's invitation, they did, however, visit with him briefly on the afternoon of the third. No attempt to bargain was made on this occasion but Smith seized the opportunity to advise the representatives that, as he testified, "you boys might get along better if you didn't stick your necks out too far . . . you told our employees that you were going to get them the type of seniority, the type of checkoff, the type of union security, and the type of arbitration that you had in your contract Standard-Coosa-Thatcher Company, 85 NLRB 1358. 5 79 NLRB 48 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Masonite . . we will not agree to it We will negotiate it, but we will not agree to it " No later date for meeting was then agreed upon although Respondent was ready to meet at all reasonable times On December 23, Smith advised all employees by letter : You and I are beginning to look more closely at the quality and the cost of the things we buy. The customers for our products are becoming more critical. Our foremost need here is for greatly improved quality. The need for lower cost is also urgent These can be brought about by increased effi- ciency. The help of each of you is necessary In my opinion, we have the best men in the Gieenville area working at this plant For years we have been able to pay a premium over the rates of the area in order to get the best men To continue favorable rates, and to recognize the excellent pei tormance of the men at this plant (luring the past ye.ir, all hourly rates will be in- creased 5 cents per hour, effective Monday, December 27th, 1948 This in- crease is made without prejudice to the privilege of the Union to represent you. I ask your continued full cooperation. A copy of the letter was sent to the Union. On January 27, the patties met again The Union presented its contract de- mands. Smith remarked that he disapproved of the clauses ielatmg to seniority, union security, checkoff of dues, and arbitration and that, though willing to dis- cuss such proposals, he would not agree to them The nest meeting took place on May 27 and after a short conference was ad- journed to June 9. These two meetings resulted in no agreement Respondent contended that it was unable to raise wages and Smith ieitetated his objections to the Union's proposals on seniority, union secuii_ty, checkolt, and arbitration. On June 23, Respondent submitted its counterpi oposal in effect offering to embody its existing rules, practices, wages, hours, and other conditions of employment in a formal agreement but reserving to itself the tight to raise wages if it so desired. The proposals of both parties were discussed again in meetings on July 21 and August 8 without agreement being leached on any matter of substance. On October 14, Smith wrote the Union that•another labor organization claimed to represent the employees in the unit, that doubt was thus cast upon the con- tinued majority status of the Union, and that lie would not meet with the Union again until the doubt was resolved. The Union never requested another meeting and none has been held. Throughout the period following certification Respondent has met with the Union on all occasions «lien requested until October 14, 1949, and has expressed willingness at all times to discuss any proposal made by the Union The General Counsel contends that the Respondent has unlawfully refused to bargain throughout the entire period on seniority, union security, checkoff, and arbitration and that a further refusal is to be found in the unilateral wage increase announced December 23, 1948, and certain layoffs made in January and February 1949. Respondent contends that, as to the wage increase, the Union had failed to arrange for negotiations, that there.itas no indication when, if ever, it would do so, that Respondent felt a wage increase was necessary in order to maintain UNITED STATES GYPSUM COMPANY 129 its competitive position in the labor market and to preserve employee morale, and that it could not he expected to await indefinitely upon the Union The position taken by Respondent ignores the fact that the Union had on Octobei 21 requested a meeting for purposes of negotiating :n: agreement. True, no date for meeting was set and, tine, without fault of Respondent But there is nothing in. the record from which Respondent could have inferred that the Union had abdicated from its position as statutory representative; nothing from which Respondent reasonably could infer that the Union was indifferent. Re- sponclent's desire to maintain its practice of paying wages higher than other employers in the area could have been satisfied just as expeditiously without flouting the Union Its principal competitor had last raised wages in July, August, or September, 1948. thus Respondent was not met with an emergent situation for its competitive position as a wage payer hind remained static for at least :l months Respondent should have notified the Union of its intent and have given the Union opportunity to consent to the wage rise. None of the reasons advanced by Respondent excuse it from its duty to deal with the statu- tory representative of its employees on such it vital matter. The decision of the Supicone Court in the G'oluni,biav. L'nanlclcnq case' supplies no authority for Respondent's conduct lit that case the Cotut held merely that an employer was under no obligation to bargain with a union absent a request that it do so. The situation here is sh:iiply distinguishable' Respondent did not fulfill its duty to bargain b> notifying its employees that the wage increase was given "without prejudice" to the right of the employees to be represented in such matters by their representative The unilateral action was itself prejudicial to that right Finally, it is nnaiaterial that the Union made no immediate protest in this connection. it could h:u•dl^ insist that the umaenso be cancelled without alienating some. at least, of its followers The wage increase was a thin:, accomplished, so the Union on February 21 filed its charge alleging that the Respondent had thus violated the Act. I find that by unilateially granting the wage increase of December 27, 1948, Respondent acted in derogation of the right of the Union to bargain on such a matter' lit January and February. for economic ieasons. Respondent made ieductions in its working force No inention of such intention was made at the negotiations on January 27 and the Union was never afforded opportunity to bargain with Respondent concerning a for nnila relating to selections for layoff The General Counsel asserts this conduct on the part of Respondent to be further evidence of a refusal to bargain. On January 27, the Union presented a form of contract to Respondent including a clause requiring layoffs to be made on the basis of departmental seniority, with the worker first hired being the last to be laid off. This was, of course, the clearest request that the Union be consulted iii such matters Respondent answered that it would not grant "straight senior- ity," its characterization of the Union's proposal, and made layoffs in February and later without further consultation with the Union Subsequent meetings for negotiation led to no agreement Respondent's counterproposal, submitted June 23, sought to have the Union accept responsi- °N L. R B. v Columbian Enamelmq and Stamping Company, Inc, 306 U S 292 7 Allis-Chalmers Alanufacturing Company v N L R. B, 162 F 2d 435 C A 7) 'In its brier Respondent argues that at the time the increase was granted, the Union had established a local at Greenville, that the local had not then complied with Section 9 (t) and (h) of the Act, and thus, that Respondent was under no obligation then to bargain with the Union (The Piadential Life Insurance Coisp(my of Aisciiea, S1 NLRB 275) Tine, steps had been taken in Decenibei to form such a local but no chaitei was issued until Febiuarv 1949 I find no merit in this aigunient 953841-52-i of 94-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bihty for all strikes in the plant whether or not authorized. Throughout the meetings , Respondent consistently adhered to its first announced position that it never would agree to "straight seniority," union shop, checkoff, or arbitration Smith testified that he, personally, was opposed to granting such benefits but that, as works manager, he had complete authority to enter into any agreement with the Union which he might consider provident. Other evidence, however, tends to cast doubt upon the extent of Smith's real authority. A booklet, "Your Work and Your Company," published by Respondent and distributed to all employees, must have had an inhibitory effect In pertinent part the booklet reads : SENIORITY The Company retains the exclusive right to determine and select those best qualified to occupy the various positions in a plant. Such qualifications as performance, skill, general fitness, and length of service are considered in making these selections. FREEDOM OF ACTION An employee has the right to join, to refuse to join, or to resign from any union. These rights of the employees are respected by the Company and he is assured that membership, or non-membership in a union will not affect his relations with the Company. The Company does not agree to any form of closed shop. CHECK OFF The payment of union dues is solely an employees decision and concerns only himself and the union. The Company will not check off union dues. ARBITRATION The arbitration of labor disputes is an improper means for making de- cisions in matters which affect the Company. The third party who, as arbitrator, makes such decisions, obviously has no responsibility in Manage- iment. Decisions affecting the Company are solely Management's respon- ,ibility, and, therefore, cannot be delegated to a third party. Respondent, rather clearly, has adopted a policy of not agreeing to seniority (except as set forth above), union security, checkoff, and arbitration. It is true, of course, that an employer is under no compulsion to accede to the demands of a union in these matters. It is equally true, however, that unions and em- ployers very frequently incorporate one or more of them in collective bargaining agreements, and it follows that a fixed determination not to agree on such matters, except on the employer's terms, is to remove them from the field of bargaining. Smith's testimony that he was always willing to listen to argument and to enter into discussion on the four points does not in the slightest degree establish that he was willing to bargain on them. His own testimony is a memorial to the con- trary. "We will discuss but we will never agree." When it is considered that on the day preceding the election Smith told the employees that the plant would close before Respondent would agree to "straight seniority," arbitration, union shop, or checkoff, that Respondent's inflexible position in these matters was reiterated time after time to the union negotiators, that the manual distributed to the employees expressed the same determination, the conclusion is justified that on such matters Respondent's mind was closed, that, as Smith testified, "We will negotiate it. but we will not agree to it." These expressions reveal a fixed determination not to bargain under any circumstances UNITED STATES GYPSUM COMPANY $ 131 on such subjects, and a purpose to preclude agreement by maintaining a posi- tion inconsistent with the bargaining rights of the Union. There can be little doubt that seniority and union security, affecting as they do, or may, "rates of pay, wages, hours of employment, or other conditions of employment" are matters upon which an employer is required to bargain. So, too, as to arbitration. Just as an employer must bargain with the representative of his employees on grievances so must he about a method of resolving them. Arbitration is one way in which this may be done. The Board has found (Hughes Tool Company, 56 NLRB 981) that an agreement to check off dues for a minority union invades the province of bargaining reserved for the majority representative. The Court of Appeals for the Fifth Circuit had this to say, however, when that case was presented to it : The collection of dues by a union from its, members is not in its nature a matter for collective bargaining, which by the Act is limited to agreeing with the employer on rates of pay, wages, hours of employment, and other condi- tions of employment, together with adjusting grievances between employees and the employer. . . . As a matter of convenience to employees and unions this Company has for a long time agreed to deduct from wages and pay to the unions the dues of their several members who in writing request it. No law commands this, and if impartially done and not as favoring or assisting any union no law forbids it. I have found no subsequent Board decision upon this precise point so, although aware that the question of checkoff is one frequently and almost traditionally the subject of bargaining between unions and employers, I do not find that it is a matter about which an employer is commanded by the Act to bargain. Bargaining of course means more than meeting when requested and discussing any subject about which agreement is sought. The theory of the Act in this aspect is that negotiators imbued with a spirit of good faith and with minds open to conviction will reach agreement. But this was not the situation in Greenville. Smith's statement that he was willing to negotiate did not mean that he could be persuaded to retreat from his announced position, as the Union's experience in the meetings with him clearly shows. Respondent, through Smith, had taken an adamantine position. Its representative was willing to talk but not to agree. As has been said, Respondent's position on the union shop removed it from the area of bargaining and the Union and its principals were told in effect that they could not even aspire to attain any form of union security. It is thus of no moment that the Union had not obtained authority under Section 9 (e) of the Act to contract in that respect Respondent's statements were sweeping and clearly were intended to mean that no such provision would be considered even were the Union to qualify itself. From February 7 to early April 1949, Respondent refused to meet with repre- sentatives of the Union for the stated reason that during this period the Union had formed a local at Greenville and that the local had not for that term complied with the provisions of Sections 9 (f) and (h) of the Act. The General Counsel expressly disclaimed any contention of an unlawful refusal to bargain during this period. None is found. I find that Respondent by the unilateral wage increase of December 27, by failing to bargain with the Union on a formula for layoff, and by adhering rigidly to a policy of refusing to recede from its position on seniority, union security, and arbitration, refused to bargain with the Union in violation of ' Hughes Tool Conipaiii/ v N. L R B, 147 F. 2d 69 , 74 (C A. 5). 0 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (5) of the Act and that by such conduct Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act10 As the Respondent has failed to bargain with the Union, the fact that it received a rival claiin for recognition in October 1949 does not now absolve it from that duty. The Union. by the conduct of Respondent, has not been afforded opportunity to bargain for the employees, an opportunity guaranteed it by the Board's certificate. C. The layoffs; the refusals to iemstate Hiram Peoples was first employed by Respondent in September 1946 He worked at a number of odd jobs around the plant but for the last year of his employment operated a cut-off saw in the fabricating department Sometime before the September election Peoples joined the Union and in December when the Union was in the process of forming a local, he was elected to temporary office as financial secretary. On February 5, 1949, Peoples along with a number of others in the fabilcating department was laid oft. About 2 weeks before this event, according to Peoples, his superintendent, Neyman, approached him at work and, after saying that he knew Peoples had joined the Union. asked what Peoples thought that the Union would do for him, and if Peoples thought that he could weather a strike Neyman then told Peoples to come to the former's office that afternoon and, when Peoples (lid so, the inquiry continued Neyinan asked Peoples to iecall what had hap- pened to the people during the flood," and warned that if Peoples continued in the Union the same thing might happen to him On February 5, Peoples was informed by Foreman Youngberg that lack of work made his layoff necessary but that Peoples would be notified when business improved. Peoples was never recalled to work Superintendent Neyman testified that lie talked to Peoples concerning the Union before the election but said that he could not recall doing so in January 1949, as Peoples testified. and could not recall mentioning anything to Peoples about the flood Neyman testified that lie did call Peoples to his office on the last day that Peoples worked and that lie might then have asked if the latter could weather a strike. Neyman admitted that be knew Peoples to be a union member and that on the day of the layoff, he offered to give Peoples a recommen- dation as a dependable worker Foreman Youngberg admitted that he knew that Peoples was an officer of the Union Local. Peoples is a small man, about v' li'' iii height and weighs about 12:i pounds Respondent asserts that his physique was a consideration leading to, his inclusion in the layoff. Nc^ nianl conceded that Peoples was an efficient and satisfactory eniplo3ee in the operation of the cut-otl saw but asserted that with the drop an production, these was no full-tune einplo^uient in that work Shift Foreman Garrett testified that lie tried Peoples on a number of jobs an the fabricating department, that Peoples performed satisfactorily only on the cut-off saw, that he was not suited for work requiring skill or precision, and that he was not tall enough to stack products Foreman Youngberg testified Mat Peoples was so slow in feeding the planking machine that the production of woikers who depended upon the machine's output was lessened According to Youngberg, the least capable and versatile workers were selected for layoff, Peoples among theiu. Al 0L R B v 7'ocei Ifo sictil Mills, 180 F 2d 701 (C .A 4, Much 0, 1900 " A Bibl ical allusion 0 UNITED STATES GYPSUM COMPANY 133 The evidence amply supports Respondent's claim that the layoffs in early 1949 were occasioned by a drop in sales which was reflected in a lessening of production I believe, too, that the evidence establishes that Peoples, if for no other reason than his small stature, was of less value to Respondent in a period when employees might he shifted to several jobs during a day than others more robust The evidence convinces, hove ever, that this deficiency was exag- gerated in the testimony of Garrett and Youngberg; that Peoples was good enough to work on a variety of jobs for more than a year before being assigned to wook regularly on the cut-off saw; and that what little criticism was directed toward his work was more in the native of instruction than complaint. Peoples was senior in point of duration of employment to many who were retained and the General Counsel points to this circumstance claiming to find in it an indicia of discrimination Not without some doubt do I find that the evidence by its preponderance fails to establish this claim There was a valid reason to make layoffs in the fabricating crew, Peoples was under disability because of his physique when consideration was given to which employees best could be spared In May or June 1949, business having improved, another was hired to operate the cut-oil saw Peoples was not recalled Respondent explained that in 1919 the labor market in Greenville was so eased that it could select from a much larger and better qualified group of applicants than before; that consideration of Peoples' physical stature and assented lack of versatility militated against his re all Peoples had operated the saw satisfactorily for a year before his layoff and I do not believe that he was as inept as Respondent asserts. There is no cuigestion that the work assigned to Peoples or work which he reasonably night have been expected to perfoi nu requui ed the possession of any particular skill of pecul ai aptitude I credit Peoples' testimony to the effect that he worked on a variety of other jobs without serious criticism I believe that he was. upon considerations of experience and pioved capacity, a desirable em- ployee on the cut-oft saw It is difficult to understand Respondent's failure to recall hlnn when a full-time saw operator was needed There is credible evi- dence however winch I consider offers an explanation Peoples was a tempos ary ,officer of the Union, an organization which Respondent had sincerely hoped never would he chosen to represent its employees, and with which Respondent has refused to bargain Ne>n ian had, I find, warned Peoples that adherence to the Union would subject Will to the hazards of the "flood," a not too subtly veiled threat to his continued employment The inner e circumstance of calling Peoples to his office either on the last day of employment, as Neynian testified, or 2 weeks before, when Peoples put it, suggests the necessity for explanation. Peoples said he was then questioned about the Union and warned about the flood Heyman said he recalled nothing about the Union or the flood but ad- nutted that there may have been some talk about a strike. It does seem some- what extraordinary that a department superintendent would call in a simple employee such as Peoples for interview when, according to Foremen Garrett and Youngberg, Peoples had already demonstrated such clumsiness, ineptitude, and lack of versatility as to warrant continued employment only in a situation where competent workers were most dilfteult to secure I find that Respondent's explanation of its failure to recall Peoples does not meet the evidence tending to establish that this failure was motivated by Re- spondent's objections to his membership in and activity in behalf of the Union." By failing to recall him, Respondent discouraged membership in the Union by 1111 l II ^11awifacturing Company, Inc, 87 NLRB 1373 I 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating against Peoples in regard to his hire and tenure of employment, and thereby violated Section 8 (a) (3) of the Act. By such discrimination and by interrogating and threatening Peoples in respect to his membership in and adherence to the Union, Respondent interfered with, restrained, and coerced Peoples in the exercise of his rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. Bennie Pearson started his employment for Respondent in June 1943 and continued until laid off on February 5, 1949. Pearson joined the Union some- time after the representation election. Pearson testified that 2 days before the election his superintendent, Clarence Shepherd, Jr, asked what Pearson thought about the Union and if he believed that the Union would gain for the employees what it promised. Pearson replied that he did not know and Shepherd went on, "Well I will tell you, no. The Union is just a bunch of crap. If you want a job and want to continue work here, you better work against the Union." In early January 1949, still according to Pearson, Superintendent Vaught called Pearson to his office, asked the latter how long he had been working in the plant, inquired what the Union ever had done for him and asserted that, just as Pearson would not permit a stranger to enter and rule his household, the Respondent would close its plant rather than submit to the rule of a Union. Vaught continued, Pearson testified, to say that there would be a layoff, that Pearson had been active securing members for the Union, and that Pearson's name would lead the layoff list. Perhaps a week later, according to Pearson, Shepherd referred to him as a "union man" and Foreman Bentley warned that Pearson was reputed to be urging employees to join the Union, and that Pearson would be laid off. On February 5 Pearson was laid off and was told, he testified, by Foreman Mauceli that the layoff would probably last 30 days, perhaps less ; that when business inipioved Pearson would be recalled. Pearson was not recalled In May 1949 he applied to Respondent for work and was told that he would be notified when Respondent resumed hiring. Respondent's principal reason advanced at the hearing for laying off Pearson and failing to recall him was stated to be his habit of tardiness. Foreman Mauceli testified that he spoke to Pearson perhaps as many as 12 times during latter's employment about coming in late for work but could not recall how close in point of time to the layoff lie gave the last reprimand. A fellow em- ployee, Isac Carter, testified that Pearson was late for work most of the time. W. T. Hendrix, gate watchman, testified that he never saw Pearson enter the plant after the starting hour but that Pearson sometimes left the clock house 15 minutes late to go to his job. Superintendent Vaught testified that Mauceli remarked to him about Pearson's habit of tardiness and that he, Vaught, warned Pearson that if he persisted in such habits, he would be laid off. Superin- tendent Shepherd testified that Pearson was seldom on time for work and that he reprimanded Pearson about this delinquency on 5 or 6 occasions. Shepherd admitted that Mauceli last remarked to him about Pearson's tardiness sometime in July 1948. Foreman Bentley also testified that Pearson was frequently late for work. Pearson admitted that he frequently failed to get to work on time and ex- plained that this was due to the illness of his wife. Pearson also admitted that in December 1948 or- January 1949, Foreman Mauceli threatened to discharge him because of tardiness. Such evidence and admissions amply prove that Pearson was frequently tardy and that he was reprimanded and warned about his habit in that respect on several occasions. I so find. The question still for determination is, however, was he laid off on February 5 and not recalled for that reason. UNITED STATES GYPSUM COMPANY 135 Pearson's testimony tends to prove that another consideration, and an unlaw- ful one, motivated Respondent in selecting him for layoff. First there is the threat made by Superintendent Shepherd shortly before the election 18 that if Pearson wanted to continue working he had best work against the Union. Shepherd denied making such a statement although he admitted speaking to 15 or 20 employees about the Union in an attempt to persuade them to reject it at the polls. Shepherd also denied Pearson's testimony that in January 194914 he referred to Pearson as a "union man." Foreman Bentley denied that he accused Pearson of trying to secure members for the Union or that he warned Pearson of a consequential layoff. Superintendent Vaught testified that he probably talked to Pearson about the Union before the election, asking Pearson how he felt about the Union and telling him that he was free to join or not as he chose, but denied that he had done so subsequent t9 that event. Vaught denied further that he had ever called Pearson to his office to talk, that he charged Pearson with getting employees to join the Union, or that he threatened Pearson in any respect con- cerning union activity. Vaught did recall, however, that Foreman Mauceli had complained about Pearson's tardiness and that he, Vaught, had told Pearson that the latter would be laid off if his habits and the quality of his work did not improve Vaught was unable to place this warning in point of time to Pearson's layoff or to recall when Mauceli last had complained about Pearson. Mauceli, Isac Carter, Shepherd, and Vaught testified that Pearson's work was unsatisfactory in that he often let his grinder run empty and that he was not dependable. Pearson's demeanor as a witness impressed me favorably. The statements he attributed to Vaught, Shepherd, and Bentley, viewed against the background of Respondents' hostility toward the Union, are certainly not incredible and, in my opinion, were in part of such character as to be beyond Pearson's probable powers of contrivance. Pearson was unshaken on cross-examination and fur- ther evidenced truthfulness in admitting his proclivity to tardiness. On this point the testimony of Respondents' witnesses was generalized and exaggerated. Of course, I do not believe that Pearson was tardy "most" of the time or that his tardiness created a serious problem in production. If that were true, I believe that he would have been discharged long before he was laid off. Further, at the time of layoff no mention was made of his delinquencies ; on the contrary I find that Mauceli then encouraged him to believe that he would be recalled to work, perhaps within 30 days. I credit the testimony of Pearson as to his con- versations with Vaught, Shepherd, Bentley, and Mauceli. Having found that Pearson was warned of and threatened with layoff if lie persisted in union activity, having considered that Pearson was an employee of more than 5 years' service at the time of his layoff and that he alone in the grinder room group has not been recalled to work, I conclude and find that Pearson was laid off and, in effect, discharged on February 5, 1949, because of his membership in and activity on behalf of the Union, that Respondent thus discouraged member- ship in and activity in behalf of the Union and thereby violated Section 8 (a) (3) of the Act. By the layoff of Pearson and by interrogating and threatening "Pearson said this occurred 2 days before the election As Shepherd was absent from the -Greenville plant from September 12 to about September 26, any conversation with Shepherd preceding the election could not have taken place later than September 11. I find that it happened on or about September 11. 14 In Its brief Respondent mistakenly asserts that Pearson could have had no conversation with Shepherd after September 11 ; that after that date Shepherd was no longer at the Greenville plant. Shepherd testified, however, that he left the Greenville plant September 12 for a period of about 2 weeks and then returned to remain until sometime in early 1949. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him concerning the Union, Respondent interfered with, restrained, and coerced him in the exercise of his rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act Paul Johnson first began ,voi 1: for Respondent in 1937, quit, returned, was dis- charged in 1946 for failing to report an injury and was last rehired March 1, 1948 Less than a year later, on February 23, 1949, he was laid off About 2 weeks before the election, according to Johnson, Superintendent Swil- ley asked if he intended joining the Union, Ntiarning that the Union would close the plant. Johnson replied that he had no such thought. In January 1949, still according to Johnson, Swilley accused hum of being a leader in the union movement. Johnson denied that this was so Johnson was told at the time of layoff that he would be recalled He has not been recalled. Superintendent •Swilley testified that Johnson wi as not a satisfactory employee in that he talked too much and wandered off the job Swilley denied that he accused Johnson of being a leader in the Union and testified that he thought Johnson opposed it. Foreman Lamon testified that Johnson was not a satisfactory worker in that his talking interrupted the work of others and in that Johnson frequently left his work in order to smoke. Lanion testified that he selected Johnson to be one of those laid off and believed at that time that Johnson was opposed to the Union. Employees Joseph Brown and Ed Jones testified that Johnson was not a good worker Brown testified that lie had worked with Johnson, that the latter would stop work and later catch up, but that Johnson didn't sinoke much. Foreman Jack Gordon testified that Johnson was an "average worker" but that he lost much time for himself and others through talking Gordon admitted that lie asked Johnson how the latter felt about the Union and assented that Johnson said lie didn't like it. Gordon testified that lie selected the least versatile and most recently hired workers for layoff, Johnson among them I have no doubt that Respondent knew when Johnson was laid off that lie was active in the Union and that lie led prayers at union meetings. Superin- tendent Vaught admitted that happenings in the Union were brinted about the plant and came to the attention of management. I am also convinced that John- son testified truthfully about Swilley's questioning concerning Johnson's union activity. I believe, however, that Gordon did not select Johnson for layoff upon any consideration of union activity or membership The layoff did affect a substantial number of employees. The recently rehired Johnson was a logical choice I find no discrimination in the layoff of Johnson. I believe, however, that a different conclusion must be leached in retard to Respondent's failure to recall him I find that Johnson was, as his foreman, Gordon, testified, an -average worker," over a per iod of 12 years lie was satisfac- tory enough to be rehn ed three or four tines by Respondent, and Swilley told him at the time of layoff that he would be recalled when jobs opened. No con- vincing reason has been advanced by Respondent for its failure to do so. Testi- mony by Smith and others that Respondent was able to secure superior workers in 1949 after the layoff in comparison with those available during the several years before that time is entirely subjective and unsupported by any statistical data tending to show the condition of the labor market in Greenville. Johnson appears to be an able-bodied, intelligent person with no apparent disability unless loquaciousness be one and, as Johnson admitted, he has always talked profusely. This characteristic did not prevent him in the past from being hired by Respondent and, absent his interest in the Union, I do not believe that it would now. I find that Respondent failed to recall Johnson to work after the layoff because of his actual or supposed leadership and activity in the Union and that by such UNITED STATES GYPSUM COMPANY 137 discrimination Respondent discouraged membership in the Union in violation of Section 8 (a) (3) of the Act. By discriminating against Johnson, and by inter- rogating him concerning the Union, Respondent interfered with, restrained, and coerced him in the exercise of his rights under Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF .THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE RE\CEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist theiefrom and take certain affirmative action which I find will effectuate the policies of the Act Having found that Respondent has refused unlawfully to bargain with the Union, it will be recommended that Respondent cease and desist from such re- fusal and, upon request, bargain with the Union in respect to wages, hours, teems and conditions of employment including such matters as arbitration, seniority, and, if the Union is authorized by means of an appropriate election, union security. Having found that Respondent has discriminated in regard to the hire and tenure of employment of Hiram Peoples, Ilennie Pearson, and Paul Johnson, it will be recommended that Respondent offer to each immediate and full rear statement to his former or substantially equivalent position'' and make each whole for any loss of pay he may have suftered as a result of Respondent's dis- crimination against him by payment to each of a suns of money equal to that which he would have earned as wages trom the date of discriminationY6 to the date of offer of reinstatement. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the data of a proper offer of ieinstatement. The quarterly periods, herein called quarters, shall begin with the first day of Januhry, April, July, and October. Loss of pap shall be determined by deducting from a stun equal to that which each would normally have earned for each such quarter or poition thereof, his net earnings," if any, in other employment (luring that period Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quartert In accordance with the lVoolnoosth decision, it will be recommended that Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amounts due as back pay The unfair labor practices found including those concerned with threats and interrogation, reveal on the part of Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated The preventive purposes of "The Chase National Bank of the City of New Yorl, San Juan, Puerto Rico, Branch, 65 NLRB 827 "In the case 'of Bennie Pearson from February 5. 1940 . in the case of Peoples and Johnson, from that somewhat uncertain date or dates in the spring or summer of 1949, where, absent discrimination, they would have been recalled. Crossett Lumber Company, 8 NLRB 440, 497-8 to F W. Woolworth Company, 90 NLRB 289 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act may be frustrated unless -Respondent is required to take some affirma- tive action to dispel the threat. It will be recommended, therefore, that Re- spondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. International Woodworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at Respondent's Greenville plant, including firemen but excluding watchmen, office -clericals, storeroom clerks, testers, the head boiler operator, the fabricating leader, the warehouse- man in the fabricating and shipping department, the head saw filer, the quality leaders in the pressboard department, the unloading supervisor in the yard, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Woodworkers of America, CIO, was on September 27, 1948, and at all times since has been, the exclusive representative of all the employees in the appropriate unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on November 3 and December 23, 1948, and on various dates thereafter including October 14, 1949, to bargain with International Wood- workers of America, CIO, as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Hiram Peoples, Bennie Pearson, and Paul Johnson, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By such refusal to bargain and such discrimination and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] ALBERT A. SHAMES , D/B/A ALDEN ENGINEERING COMPANY and LODGE 264: OF DISTRICT 38, OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS.' Case No. 1-RC' 1972. May 1, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert S. Fuchs, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The Petitioner' s name appears as amended at the hearing. 94 NLRB No. 38.