Pollock Mill Co.

POLLOCK MILL CO. 227 the mechanics of voting and asked them in a foreign tongue if they understood what had been told them . Whether or not, as the Intervenor contends , the Board agent failed to advise the Inter- venor's representatives in advance of his intentions inthus con- versing with these voters , it cannot be saidthat the Board agent, under the circumstances present here, was guilty of improperly influencing the election .4 As to ( e), the Petitioner ' s preelection conduct contained no element of coercion and therefore falls within the permissible area of electioneering activities with which this Board does not interfere ; whether or not the Pe- titioner ' s statements made during the course of its campaign are true is immaterial to our inquiry .' We therefore overrule the Intervenor ' s objections. Because the Petitioner has received a majority of the valid votes cast in the election , we shall certify this labor organiza- tion as the exclusive bargaining representative of the em- ployees of the Employer in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) has been designated and selected by a majority of all production and maintenance employees at the Albion, Michigan , plant of Albion Malleable Iron Company, ex- cluding clerical employees , engineering employees , techni- cians, watchmen , guards, and foremen and other supervisors as defined in the Act, as their representatives for the purposes of collective bargaining and that , pursuant to Section 9 (a) of the Act, as amended, the said labor organization is the exclu- sive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment , and other conditions of employment. 4 We also find without merit the Intervenor 's additional contention that voters should be re- quired to have some knowledge of English to entitle them to vote in an election . We find nothing in the Act or in the expressed intentions of Congress with respect thereto to support such a contention. 5 West- Gate Sun Harbor Company , 93 NLRB 830. C. EARL POLLOCK, LEONARD A. CHAPDELAINE, AND ELMER D. CHAPDELAINE, individually and, as co-partners, d/b/a POLLOCK MILL CO., and POLLOCK MILL COMPANY, a corporation , as successor in interest to C. EARL POL- LOCK, LEONARD A. CHAPDELAINE, and ELMER D. CHAPDELAINE, co-partners , d/b/a POLLOCK MILL CO. and LUMBER AND SAWMILL WORKERS UNION, LOCAL NO. 2561, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL. Case No. 20-CA-704. April 21, 1953 DECISION AND ORDER On January 21, 1953, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceed- 104 NLRB No. 30. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take -certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 [Members Houston, Murdock, andStyles]. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions, modifications, and exceptions: 1. We find, in agreement with the Trial Examiner, that the Respondents did violate Section 8 (a) (3) of the Act by dis- criminatorily laying off Henderson. We find, like the Trial Examiner, that the Respondents "were aware of Henderson's activity in support of the Union." In this connection, we rely not only upon Henderson's statement to Elmer Chapdelaine, "Maybe we are going union," upon the arrival of the union representatives on March 31, 1952, but also we rely upon Henderson's uncontroverted testimony that he wore a union button between April 1 and April 4, 1952, while working closely with Elmer Chapdelaine. We note too, as did the Trial Examiner, Pollock's statements on April 25 which were, in effect, an admission that Henderson's layoff was because of his solicita- tion for the Union. With respect to the layoff itself, we find, like the Trial Examiner, that it was not impelled by economic considerations. In addition to the considerations cited by the Trial Examiner in support of his finding we rely on the testimony of McCoy, the Respondents' witness, that he was hired on April 3, 1952, to work on the ripsaw, and began work on April 4, 1952, which testimony serves to refute Leonard Chapdelaine' s contention that Henderson's layoff was the result of a shortage of lumber.' 2. We agree with the Trial Examiner's conclusion that the Respondents refused to bargain with the Union, and thereby violated Section 8 (a) (5) of the Act. On March 31, 1952, as the Trial Examiner found, when the Union made its request for recognition, as well as at all times material herein, the Union represented a majority of the Respondents' employees in an appropriate unit. The Respondents contended at the hearing and in their brief that they have not unlawfully refused to bargain because they had a bona fide doubt as to the Union's majority status and that status was never established by a Board election. The 'Leonard Chapdelaine testified that McCoy first went to work on May 19. 1952. The Trial Examiner did not resolve this conflict intheevidence. In view of McCoy's admission of opposi- tion to unions and his refusal to work in a union plant, we credit his testimony. POLLOCK MILL CO. 229 Respondents' entire course of conduct, however, belies the sincerity of their doubt. When the Union first made its claim of majority representa- tion on March 31, Pollock, one of the respondent partners, arranged for a meeting to be held with all the partners. At this meeting on April 3, George, the Union' s business agent, ad- mitted on cross-examination "that talk came up about having a majority of cards," and that the Union held up the authorization cards, but made no offer to prove its majority. The Respondents, however, did not askto see the cards or request any other proof of a majority. Instead they discussed with the Union the terms of a proposed contract, and the parties reached what appears to have been an agreement with respect to wages. Immediately following the meeting, the Respondents embarked upon an antiunion campaign. Thus, on April 4, the following day, they discriminatorily laid off Henderson the leader of the Union's organizing campaign. On April 4 or 5 they posted notice of a general wage increase and put that increase into effect on April 7. There had been no discussion among the Respondents concerning such an increase before the April 3 meeting with the Union, and the increase was admittedly partly stimulated by the Union's proposed wage scale. Nevertheless the Respondents granted the increase as a cost - of-living increase at a time when the Union as the majority representative of their em- ployees was demanding recognition, without mentioning to the employees the part played by the Union. The granting of the wage increase in these circumstances undercut the authority and prestige of the bargaining agent and constituted an induce- ment to the employees to abandon their representative and surrender their fundamental rights under the Act. The Re- spondents further discouraged adherence to the Union on different occasions in April and May by questioning their em- ployees concerning union affiliation and threatening to oper- ate without employees. Although the record reveals that the Respondents were willing to bargain with the Union if it was certified pursuant to a Board election, this insistence upon an election as a condition precedent to bargaining , following on the heels of a series of unfair labor practices , does not in our opinion reflect the Respondents ' good faith and willing- ness to bargain with the Union provided its majority was proved, as the Respondents urge. On the contrary, such insistence was motivated solely by the rejection of the collec- tive-bargaining principle, and by their belief that their anti- union campaign had obviated any likelihood that the Union could win an election . Although the Respondents need not have relied upon a mere claim of majority status by the Union's representatives , it is well -established law that an election is not the only method of determining majority representation, and that an employer may not require an election and certifi- cation as a condition precedent to bargaining with a union, where the employer entertains no real doubt as to the union's majority.: In view of the foregoing, the Respondents cannot be 2C. Pappas Company. Inc., 82 NLRB 765. 283230 0 - 54 - 16 2 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard to say that they entertained an honest doubt as to the Union's majority status and we find that their conduct con- stitutes a refusal to bargain in violation of Section 8 (a) (5) of the Act. 3. The Trial Examiner found, and we agree, that the Re- spondents interfered with, restrained, and coerced their em- ployees in violation of Section 8 (a) (1) of the Act by the inter- rogation of Mott and Padilla concerning their union activity and preferences, and the threat made to Henderson that the partners would operate the plant by themselves, without any employees if the Union persisted in its demand for recognition. In addition, we find the following conduct violative of Sec- tion 8 (a) (1): (1) Pollock's declaration to Padilla that if the Union represented the employees, the plant could not be operated "gyppo"; (2) Leonard Chapdelaine's statement to Henderson that he was considering putting the shift on a "gyppo" basis as a means of "overruling" the Union; and (3) the announcement and putting into effect of the general wage increase without mentioning the part played by the Union. We do not adopt that portion of the Intermediate Report which finds that the Respondents violated Section 8 (a) (1) "by misrepresenting the obligation of employees under a union shop," as we interpret the statement made by Leonard Chapde - laine to a' group of employees that if the Union got into the plant and obtained a closed shop they would have to "live up" to the Union and pay dues or suffer discharge, to do no more than inform the employees of the provisions of the Act, and therefore not to violate Section 8 ( a) (1).3 ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondents C. Earl Pollock, Leonard A. Chapdelaine, and Elmer D. Chapdelaine, individually and as co-partners, d/b/aPollock Mill Co., and their successor , Pollock Mill Company, a corpora- tion of El Dorado, California, and the officers, agents, succes- sors, and assigns of each severally and jointly, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Lumber and Sawmill Workers Union, Local No. 2561, United Brotherhood of Car- penters & Joiners of America, AFL, as the exclusive repre- sentative of all production and maintenance employees at the El Dorado plant, excluding office clerical employees, profes- sional employees, guards, and all supervisors as defined in the Act. (b) Discouraging membership in or activity in behalf of Lumber and Sawmill Workers Union, Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, or in any other labor organization by discriminating in regard to hire, or tenure of employment, or any term or condition of employment. sCf. Kansas Milling Company v. N.L.R.B., 185 F . 2d 413 (C.A. 10); but cf. Standard Coil Products , 99 NLRB 899. POLLOCK MILL CO. 2 31 (c) Interrogating its employees concerning their union affilia- tion, activities, or sympathies, threatening to operate without employees, holding out job advantages because of union member- ship or lack of it, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self organization, to form labor organizations, to join or assist Lumber and Sawmill Workers Union, Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition 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) Make whole Loyall C. Henderson for any loss of pay he may have suffered by reason of his discriminatory layoff for the period of April 4 to May 5, 1952. (b) Upon request bargain collectively in good faith with Lumber and Sawmill Workers Union, Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, as the exclusive representative of the employees in the appro- priate unit with respect to rates of'pay, wages, hours of em- ployment, and other terms and conditions of employment, and if an understanding is reached, embody it in a signed agreement. (c) Upon request make available to the Board or its agents all pertinent payroll or employment data necessary or con- venient to calculate the amount of back pay due under the terms herein recommended. (d) Post at the plant in El Dorado, California, copies of the notice attached hereto and marked "Appendix A."4 Copies of the said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed in behalf of the Respondents and the Corporation, be posted by them immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondents and the Corporation to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Decision and Order what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order " 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Lumber and Sawmill Workers Union Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, or in any other labor organization by discriminating in regard to hire, or tenure of employment, or any term or condition of employ- ment. WE WILL NOT interrogate our employees concerning their union affiliation, activities, or sympathies, threaten to operate without employees, hold out job advantages because of union membership or lack of it, or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized by Section 8 (a) (3) of the Act. WE WILL make whole Loyall C. Henderson for any loss of pay he may have suffered by reason of his discrimina- tory lay off. WE WILL bargain upon request with Lumber and Saw- mill Workers Union, Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, and if an understanding is reached embody it in a signed agreement. The bargaining unit is: All production and maintenance employees at the El Dorado, California, plant, excluding office clerical em- ployees, professional employees, guards, and all supervisors as defined in the Act. All our employees are free to become or remain members of the above-named union , or any other labor organization, or to POLLOCK MILL CO. 233 refrain from so doing. We will not discriminate against any employee for such conduct. C. EARL POLLOCK, LEONARD A. CHAPDELAINE, and ELMER D. CHAPDELAINE, individually and as co-partners , d/b/a POLLOCK MILL CO. Dated . ............... By.................................................... (Representative ) (Title) POLLOCK MILL COMPANY, a corporation Dated .. .............. By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Lumber and Sawmill Workers Union, Local No. 2561, AFL, herein called the Union, and upon a charge filed by Central California District Council of Lumber & Sawmill Workers in behalf of the Union, against C. Earl Pollock, Leonard A Chapdelaine, and Elmer D. Chapdelaine, copartners, herein called Respondents, d/b/a Pollock Mill Co , El Dorado, California, the General Counsel for the National Labor Relations Board issued his complaint dated October 17, 1952, alleging that the Respondents had engaged in unfair 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, as amended, 61 Stat 136, herein called the Act. The complaint further alleges that Pollock Mill Company,i a corporation, herein called the Corporation, is the successor in interest to the Respondents. The unfair labor practices alleged are that Respondents from on or about April 3, 1952, (1) interrogated employees concerning union membership and activity, (2) threatened to close their business and to discharge employees to defeat the Union, (3) bargained individually with employees in an effort to discourage union membership and activity, (4) granted wage in- creases to encourage defections from union membershipand activity, (5) discharged Loyall C. Henderson because of his activities in behalf of the Union, and (6) unlawfully refused to bargain with the Union. Respondents' answer, dated October 24, 1952, denies the commission of unfair labor practices. Pursuant to notice, a hearing was held beforethe undersigned Trial Examiner in Placerville, California, on November 25 and 26, 1952. All parties were represented, were permitted to examine and cross-examine witnesses and to introduce evidence pertinent to the issues. Briefs have been received from counsel for theGeneral Counsel and counsel for the Respond- ents and the Corporation Upon the entire record in the case, upon consideration of the briefs, and from my observa- tion of the witnesses, I make the following. FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENTS From some date before January 1,1952, to about September 15 of that year , the Respondents operated a lumber mill in El Dorado , California, where they were engaged in the sale at t The name of the corporation is hereby corrected. 2 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wholesale and retail of lumber and building materials The complaint alleges, the Respondents' answer (by failing to deny) admits, and I find that in the period from January 1, 1952, to about October 1 of that year, Respondents sold and shipped lumber and building materials from El Dorado, California, to points outside the State of California having a value in excess of $25,000. I find, therefore, that at all times material herein, Respondents have been engaged in commerce within the meaning of the Act. 2 II. THE LABOR ORGANIZATION INVOLVED Lumber and Sawmill Workers Union, Local No. 2561, an affiliate of United Brotherhood of Carpenters & Joiners of America, AFL, is a labor organization admitting to membership em- ployees of the Respondents. Ill. THE UNFAIR LABOR PRACTICES A. The evidence About March 11, 1952, Loyall C. Henderson, who had been employed by Respondents for about a year, joined the Union and received a number of membership application cards from William George, the Union's business agent for distribution among Respondents' employees. On March 31. 12 of Respondents' 16 production and maintenance employees had signed such cards designating the Union as their bargaining representative . Henderson witnessed the signing of all but 1 and had functioned as the Union's dues collector at the plant Of the 4 nonsigners, William Green and E F. Thomas appear to have been working on a part-time basis On March 31 William George accompanied by Jack Reeves, a business representative of Central California District Council of Lumber & Sawmill Workers, called at Respondents' plant and met Pollock Reeves told Pollock that the Union represented a majority of Pollock's employees and that Reeves desired a meeting for the purpose of negotiating a contract George displayed the membership application cards but not in such fashion that they could be examined by Pollock An arrangement was then made for a meeting to be held on the evening of April 3 when the other partners, the Chapdelaines, would be present Pollock testified that on March 31 he expressed to George and Reeves his doubt that the Union was the choice of a majority of the employees George and Reeves denied in their testimony that any such question was raised. In the evening of April 3, George and Reeves returned to the plant, this time accompanied byMartinovich, president ofthe Union's local, and met for about 2 hourswiththe 3Respondents Reeves spoke for the Union and Pollock for the Respondents. Reeves opened the discussion by asserting, again, that the Union had been selected by a majority of the employees, and held out the application cards in a fan-wise fashion before him George presented a proposed form of contract which Pollock took and kept before him A clause by clause discussion of the contract proposals then followed Pollock asked what the Union's wage demands were and George supplied wage ranges which he said were in effect in similar operations in the area After examination of these and consideration of the job classifications existing in Respondents' operation, Pollock declared that he would put certain wage increases into effect on the follow- ing Monday, April 7 The union representatives expressed their satisfaction Some time was spent over the union-shop clause, the Respondents expressing strong opposition to it Reeves said that the Union would not give up its demand for such a provision. Leonard Chapdelaine testified that at the opemng of the April 3 meeting he asked Reeves if an election was to be held among the employees and that a demand was made to see the applica- tion cards. Pollock testified that he had some recollection about an election being mentioned but was not completely certain about it. Reeves and George denied that any demand was made for an election or to examine the application cards. Reeves explained that he alone mentioned an election and then only in connection with the lack of necessity for such authorization to validate a union-shop provision. The meeting ended with the understanding that Respondents would give consideration to the Union's proposals and that the representatives of the latter would return in about 2 weeks On April 4 or 5 a notice was posted on Respondents' bulletin board announcing a wage in- crease in consideration of higher living costs The increases, ranging from 10 to 15 cents an hour, were effective April 7 2Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618. POLLOCK MILL CO. 235 Loyall Henderson testified that on a date which I find to be March 313 Elmer Chapdelaine, observing George and Reeves approach the plant, remarked , " I wonder what them two guys want here." Henderson replied , " Maybe we are going union " On Friday, April 4 , Henderson worked to the end of his shift and then went to his home Sometime after his arrival there, Elmer Chapdelaine appeared to tell him that because of a shortage of lumber Henderson was laid off as of then Henderson inquired if he should come to the plant periodically to see if there was a need for him Chapdelaine' s answer is not given in the record On April 23 William George and Henderson went to the home of Leonard Chapdelaine . Henderson asked when he might go back to work Chapdelaine said that if the price of lumber improved he would need additional help and would call Henderson Two days later , on April 25, Leonard Chapde- laine took Henderson to Pollock' s home wherethetwo partners told Henderson they desired to talk to him about returning to work Chapdelaine said that an unfair labor practice charge had been filed against him 4 Henderson commented that he "thought he had one coming ." The talk then turned to other subjects. Chapdelaine said that a Board election was to be conducted at the plant and that he could not predict the result Henderson said in substance that not more than one vote would be cast against the Union Pollock commented that he hoped Henderson was mistaken When the subject of Henderson' s return to work was reached, Henderson said that he did not know whether the partners would want him back in view of the discharge Pollock said that there was "lots of confusion" and misunderstanding along about that time; that one of the employees , Herman Bauer , had told him that the reason Bauer signed a union designation was that Henderson had represented to Bauer that all the other employees had done so. Chapdelaine remarked that the men did not choose the Union of their own accord, that someone had talked them into it Chapdelaine went on to say that if "worse comes to worst," he and his brother Elmer could run the plant and do the trucking at night as they had in some previous season Chapdelaine said that he was considering putting on a night shift on a "gyppo"s basis ; that he was going to Sacramento the next morning for advice to learn if such a maneuver would " overrule" the Union After Henderson was told that he would be recalled to work when a night shift was put on, he left 6 Henderson was returned to work on May 5 and assigned to the night shift. After several periods of employment with Respondents , Clarence Padilla returned to their payroll in September 1951 and, after a layoff beginning in November of that year , went back to work on February 13, 1952 Padilla joined the Union in March According to his undenied and credited testimony , sometime in April William George talked to a group of employees during the lunch hour about filling out some blanks in connection with union membership Just after Padilla returned to work following the noon recess, Leonard Chapdelaine came to him and asked, "What' s that Union man around here for?" Shortly after April 7, according to Padilla, as the day shift was about to leave the plant, Leonard Chapdelaine spoke to the group saying that if the Union got into the plant and obtained a closed shop all of them would have to "live up" to the Union and pay dues or suffer discharge . i Chapdelaine said that he had worked for the Pacific Gas and Electric Company for 10 years without joining a union. Padilla quit his job for another about April 18 with the understanding that if his new venture did not work out satis- factorily he might return On May 3 Padilla told Leonard Chapdelaine that he would like to return Chapdelaine said that he might do so the following Monday After his return , on May 8, Pollock said that the Respondents were considering putting the night shift on a "gyppo" basis but that if the Union " gets in" they would not be permitted to do that Pollock concluded with, "You know , Clarence. you can always change your mind , you know, at any time " Pollock did not advert to this incident in his testimony Harry S. Mott , who has worked occasionally for the Respondents in the past 3 years , testified credibly and without contradiction that he returned to his employment with them about May 10, 1952 Two or three days before that , according to Mott, Pollock told him that he could be rehired and asked if Mott belonged to a union Mott said that he did not and did not believe in sHenderson placed this incident in early April. Because it was only on March 31 that George and Reeves came to the plant during the day shift hours when Henderson might have observed them, I am convinced that the earlier date is the correct one. 4The original charge in this proceeding , alleging discrimination attending the layoff of Henderson was filed April 23 and served on the partnership the following day. 5Piece rate. 6Henderson's version of this conversation is not clearly controverted . Chapdelaine did testify, however , that he had never threatened to close the plant in the event he was "forced" to sign a contract with the Union. 7 This is not denied . However , Chapdelaine testified that he recalled saying to a group of employees about April 25 that he had no objection to the Union if it won an election but did object to a union shop; that he wanted to protect the rights of those who did not desire to join 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them. Pollock said , "Well, that is the man we want . We want all the non-union men we can get." On cross-examination Mott reaffirmed his disbelief in unions and testified that he had never been a union member. When he learned of Henderson' s discharge, William George went to Respondents' plant and spoke first to Leonard Chapdelaine . George said that it was his understanding that employees with less seniority than Henderson were retained when Henderson was laid off and suggested that Henderson had been selected for layoff because of his activity in assisting the Union to organize the employees Chapdelaine denied that he knew of any such activity on the part of Henderson. Chapdelaine walked away and Pollock appeared . George, according to his testi- mony, said that he was trying to learnthe reason for Henderson ' s termination, still according to George, Pollock replied , " I laid him off because he was the ringleader in this Union activity around here.", that Henderson was "pressuring" the employees , that Henderson had told Herman Bauer he had best join the Union as Bauer was the last one to do so. George, he testified , said that if Henderson had used such an argument it was an approximation of truth that Cavender and Neilsen were the only nonsigners , 8 and , in any event , Pollock had violated the Act by the discharge. Pollock, allegedly , made no reply. Leonard Chapdelaine testified that because of a shortage of lumber he decided to abolish the night shift, that this was done " on or about the same time" that Henderson was laid off, and that a planer feeder was transferred from the night to the day shift to replace Henderson The replacement, according to Chapdelaine, had been employed by Respondents for about 5 years and in the past had been given a transfer to the day shift at the seasonal cessation of night work. Three or four others were laid off, Chapdelaine testified , "on or about that time " Pollock stoutly denied that he had made any such admission concerning Henderson to George and said that he had neither hired or fired anyone for the past 2 or 3 years According to Pollock, the subject of Henderson's layoff came up only once with any union representative on an occasion when he was in conversation with George and Donald Riggs Pollock testified that one of them asked him if union activity was a consideration affecting Henderson ' s employment to which Pollock answered , "Well, it might of " Pollock testified that he gave this answer thoughtlessly; that he had, in fact , no knowledge as to the reason for the layoff. Elmer Chapdelaine, who notified Henderson of the layoff, was not called as a witness. Now, to follow the course of dealings between representatives of the Union and the Re- spondents in respect to the allegation of unlawful refusal to bargain: George testified that he met with Leonard Chapdelaine about April 17 or 18 and asked if Pollock had read the proposed contract Chapdelaine replied that he did not know George asked if they could meet to sign the agreement . Chapdelaine said that Respondents could not afford to provide paid holidays and vacations , that he opposed the union-shop provision , and that he was not sure that Re- spondents would enter into a contract with the Union George returned in a few days ac- companied by Donald Riggs, another union representative . They first met with Pollock, who said that business conditions were such that he did not see how his company could meet the Union's terms and remarked that he thought a union shop was unfair . Leonard Chapdelaine then joined the group. Riggs remarked that Respondents had increased wages . Chapdelaine answered that they had; that they would have done so even if the Union had not appeared on the scene This moved George to laughter which apparently stirred resentment in Pollock and George, seemingly in the interest of amity, left the group in the discussion, Riggs said that the Union would not enter into a contract without a union -shop provision. About April 21 or 22,9 George met with Leonard Chapdelaine George asked if there was any chance that a contract would be signed. Chapdelaine answered that he did not know. Some discussion concerning a representation election followed. George said that an election might not be held and charged that Chapdelaine had never intended to sign a contract Chapdelaine replied "We may not; " but said he might decide otherwise if the union -shop clause was deleted On May 7, George and Riggs returned to the plant and met with Elmer Chapdelaine Riggs said that he had heard that Respondents would not sign the proposed contract Chapdelaine answered that Riggs was correctly informed Riggs retorted that Chapdelaine had thereby established himself as a liar and, with George, left Shortly after the Union' s petition was filed , the Respondents agreed to an election. Once set, the election was postponed and later , again by agreement , rescheduled but never con- ducted . In October the petition was withdrawn. 8 George appears not to have counted the two part-time workers, Green and Thomas, in this calculation. 9 The date of this meeting is given here as George testified. It seems probable , however, that George is mistaken and that the meeting occurred several days later . He and Chapdelaine appear to have referred on this occasion to a Board election requested by the Union. A petition for such an election was filed by the Union, but not until April 23. POLLOCK MILL CO. 237 On July 10 George again went to the plant and met with Elmer Chapdelatne George testified credibly and without contradiction that Chapdelaine said he thought there was no chance that a contract would be signed and remarked that no election had been held George replied that an election could not properly be conducted because of Respondent ' s unfair labor practices. Chapdelaine answered that Respondents could settle with Henderson and still not have a union in the plant and that they had $ 10 ,000 to "fight this case" if that much was needed, adding, "we want an election." On August 18 George and Riggs called upon Leonard Chapdelaine Riggs asked if the Re- spondents would recognize the Union. Chapdelaine answered that the Union must first estab- lish its status by an election. No further meetings took place The testimony of Leonard Chapdelaine and Pollock is substantially in agreement with that of the union representatives as to the dates of meetings and as to much of what took place at them. Both Chapdelaine and Pollock testified , however , that they doubted the majority status of the Union from the first , that a demand to inspect the application cards was refused, and that they felt that Respondents were entitled to a demonstration of the employees ' choice by means of an election. As to the wage increase which was announced on April 4, Leonard Chapdelaine at first testified that it was customary to adjust wages in April of each year , that the action taken in that respect was in accord with that custom and concurrent with general wage increases in the lumber industry. On cross-examination it became apparent that Chapdelaine in April had no knowledge of general wage increases elsewhere . At this point Chapdelaine testified that the wage increase was granted in order to adjust rates to those being paid by competitors. It soon developed from his testimony that at least part of the information he had in this particular was gained from the union representatives in the meeting of April 3 Finally, Chapdelaine testified , the wage increases were given by Pollock without consultation between the partners and that Chapdelaine , to quote his testimony , " did not go along at the time with him on it I do not regard Chapdelaine as a reliable witness. Pollock testified that he had made a practice of adjusting wages at the end of the winter season and that the discussion with the Union on April 3 convinced him that a wage raise was necessary in order to hold his workers from other employers . With some candor , Pollock admitted that he may have been influenced by the apparent interest of his employees in the Union in deciding to raise wages . Pollock admitted that before the meeting with the Union on April 3 there had been no discussion among the partners on wages B. Conclusions The complaint alleges , and Respondents' answer denies , that a unit of production and maintenance employees excluding office workers and supervisors is appropriate for purposes of bargaining. The unit described is a traditional one and , in the absence of craft considera- tions not present here , has invariably been found by the Board to be appropriate. Nothing in the way of evidence or argument has been advanced in this proceeding to persuade to a different conclusion. I find therefore that the above unit is one appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On March 31 . 1952, of the 16 employees in the unit , 12 had designated the Union as their representative. I find , therefore, that on March 31 the Union was the majority representative for purposes of collective bargaining of Respondents ' employees in an appropriate unit within the meaning of Section 9 (a) of the Act. Respondents ' answer denies that they have refused to bargain and asserts that no "proper bargaining agent" has been established . I do not understand that Repondents deny that they have refused to bargain with the Union. It has been their position throughout the hearing that the majority status of the Union has never been demonstrated . One of the principal conflicts in testimony is the assertion by Respondents that a demand was made to inspect the application cards countered by the Union's denial that it occurred . It is my observation that an employer entertaining a doubt as to a union's status first seeks a determination of that question before discussing the terms of a contract , but I do not suppose that this is invariably the case. A belated demand that a union show its authority may of course indicate a lack of good faith; it may also merely demonstrate an unfamiliarity in such matters . Viewed alone, the meeting of April 3 bears many of the indicia of a bargaining conference Terms of the proposed agree- ment were discussed, objections to certain items were adjusted , and what certainly appears to have been an agreement on wages reached . All this would afford some basis for a conclusion that the Respondents on that date had recognized the Union and were seeking to make the best terms that they could with it. But Pollock testified that he expressed doubt that the Union represented a majority on March 31. Chapdelaine testified that his request to inspect the application cards on April 3 was refused I do not credit this testimony . George testified in 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substance that it was not his practice to exhibit the individual cards to an employer, that they generally were used by him to support a petition for a Board election if one was necessary A petition was filed on April 23 It seems probable that if the Union's claim to majority status had been disputed on March 31 or April 3, the Union would then have filed a petition for certification. When, about April 20, it appeared that Respondents were disinclined to bargain, the petition was quickly filed But other, and perhaps more reliable, factors lead to the conclusion that Respondents had no doubt concerning the employees' choice. The timing of the wage increase is evidence of Respondents' concern over the Union's appearance As Pollockadmitted, the visit of the union representatives played a part in this action This betterment of the employees' status was stimulated by the Union's assertion as to what the wage scale should be. The announcement to the employees however did not mention the part played by the Union in that development, but merely said that the wage rise was to compensate for increased living costs Now I do not believe that Respondents on April 3 had decided not to recognize the Union. If they had, the meeting probably would not havedeveloped into something so closely approximating a veritable bargaining conference The determination appears to have flowered later and perhaps the first true manifestation of intent is tobe found in the layoff of Henderson about whom the organizing campaign centered. Chapdelaine testified that Henderson was laid off in a reduction in force motivated by economic considerations, that he was replaced by a senior worker from the dis- continued night shift. But Chapdelaine testified, very carefully I believe, that the night shift was discontinued at about the time of Henderson's layoff. There is no evidence as to the precise date Surely it was within the knowledge of Respondents when that shift was taken off and it is curious that the date was not clearly established The evidence does not show that Henderson's layoff was coincident with others or with the discontinuance of the night shift Henderson testified, without dispute, that workers junior to him remained after he was let go Furthermore, no mention of a replacement from the night shift was made to Henderson He was told that lack of lumber was responsible for his loss of employment. There is also the testimony of George that Pollock admitted he had discharged Henderson because of union activity. I am unconvinced that George correctly recalled what Pollock said in that connection and find that on that occasion Pollock said that Henderson "might of' been discharged for that reason; that Pollock then complained that Henderson had "pressured" the employees into joining the Union , and had misrepresented matters to Bauer in persuading the latter to sign a card. I find that on April25 Chapdelaine and Pollock told Henderson that the employees had been "talked into" joining the Union, complained that Henderson had made a misrepre- sentation to Bauer , and expressed a hope that by going "gyppo " on the night shift , the Union could be "overruled." I find that on April 4, Respondents were aware of Henderson' s activity in support of the Union. On March 31, by saying to ElmerChapdelaine, "Maybe we are going union," Henderson had` given an indication of what lay in the future and, in such a small operation, it is exceed- ingly likely that Respondents were aware of his activity. When on April 25 Pollock said that there was confusion and misunderstanding about the time of Henderson's layoff and com- plained of Henderson' s alleged misrepresentation to Bauer , I find that Pollock was saying that the layoff was motivated by Henderson's activity as a solicitor for the Union. I do not credit Chapdelaine's testimony that Henderson's layoff was impelled by economic considera- tions or that it followed naturally from the discontinuance of the night shift. I credit the testimony of Padilla that Chapdelaine said employees would have to "live up" to the Union to retain employment if a union-shop provision was negotiated; that Pollock told him the plant could not be operated "gyppo" if the Union represented the employees and, in effect, urged him to withdraw his support of the Union, and that Chapdelaine interrogated him in regard to a visit that George made to the plant. I credit Mott's testimony that Pollock asked if he was a member of the Union and stated a preference for nonmembers as employ- ees. I credit Henderson's testimony that Chapdelaine threatened to run the plant without employees if the Union persisted in its demand for recognition and to devise a scheme to "overrule" the Union. These incidents, remarks, and occurrences obviously stemmed from the Union's claim of representation. If Respondents had entertained an honest doubt as to the Union's status they could of course have refused recognition and waited for the Union to prove its majority But another course was followed . By means of a discriminatory layoff, by suggesting that a scheme might be used to "overrule" the Union, by telling the employees they might have to "live up" 10 to the Union to keep employment, by a threat to operate without employees and Respondents sought to discourage adherence to the Union and thus to avoid the duty to bargain 10 Even under a union-shop clause a union may require no more of employees than the payment of dues and initiation fees. POLLOCK MILL CO. 2 39 I find that the layoff of Henderson was made in retaliation for Henderson ' s organizing activity and that Respondents thereby discouraged membership in the Union. Respondents thereby violated Section 8 (a) (3) of the Act -I find that Respondents refusal to bargain was not because of any bona fide doubt as to the Union's majority but instead was a rejection of the bargaining principle I find, therefore, that by refusing to bargain with the Union on and after April 3, 1952, Respondents have violated Section 8 (a) (5) of the Act. By the layoff of Henderson, by the refusal to bargain, by misrepresenting the obligations of employees' under a union shop, by interrogating employees concerning union activity and preferences, and by threatening to operate without employees, Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act and thereby have violated Section 8 (a) (1) of the Act C. The Corporation About September 15, 1952, a corporation was formed taking the name of Pollock Mill Company which purchased the business of the Respondents. Leonard and Elmer Chapdelaine each hold 24 percent of the corporate stock and occupy the positions of president and secretary, respectively. Pollock has no interest in the Corporation. Both Chapdelames are active in its management The Corporation operates the same business at the same plant with substantially the same force of employees. There was no interruption in the business occasioned by the transfer of ownership. I find that the Corporation is the successor of Respondents The Chapde- laines brought to the Corporation actual knowledge of the unfair labor practices committed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with their 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 REMEDY Having found that the Respondents have committed certain unfair labor practices and that the Corporation is their successor, it will be recommended that both cease and desist there- from and take certain affirmative action to effectuate the policies of the Act ii Having found that Respondents discriminated in regard to the tenure of employment of Loyall C. Henderson on April 4, 1952, it will be recommended that Respondents and the Corporation make him whole for any loss of pay suffered for the period from April 4 to May 5, 1952, by payment to him of a sum of money equal to that which, had he not been laid off, would have come to him as wages less his net earnings, 12 if any, during that period. Respondents and the Corporation shall make available to the Board or its agents upon request such payroll and other records as will facilitate the computation of the amount of back pay due. Having found that Respondents have unlawfully refused to bargain with the Union, it will be recommended that Respondents and the Corporation, upon request, bargain with the Union and, if an understanding is reached, embody it in a signed agreement. 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. Lumber and Sawmill Workers Union, Local No. 2561, United Brotherhood of Carpenters & Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Pollock Mill Company, a corporation, is the successor to Pollock Mill Co., a copartner- ship, and as such is responsible for remedying the unfair labor practices of the copartnership. 3. All production and maintenance employees at the ElDorado plant of the Respondents and now of the Corporation, excluding office employees and supervisors as defined in the Act, as amended, now constitute and at all times material herein have constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ii See The Alexander Milburn Company, 78 NLRB 747 i2Crossett Lumber Company, 8 NLRB 440. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Union was on March 31, 1952, and at all times since has been the exclusive repre- sentative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on and after April 3, 1952, to bargain in good faith with the Union, Respond- ents have engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By discriminating in regard to the tenure of employment of Loyall C. Henderson, to dis- courage membership in the Union, Respondents thereby have engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7. By the conduct adverted to in subparagraphs 5 and 6 above, by threatening to operate with- out employees, by interrogating employees, and by misrepresenting the impact of a union shop upon employees, the Respondents have interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed in Section 7 of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. I Recommendations omitted from publication.] FEHR BAKING COMPANY and BAKERY & CONFECTIONERY WORKERS' INTERNATIONAL UNION OF AMERICA, AFL, and its LOCAL NO. 478. Cases Nos. 39-CA-89 and 39-CA- 167. April 21, 1953 DECISION AND ORDER On January 22, 1953, Trial Examiner C. W. Whittemore issued his Intermediate Report in this proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a sup- porting brief. The Respondent requested permission to file a reply brief. This request is hereby denied. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the briefs, and the entire record in the case, and hereby adopts, with a minor correction, 2 the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the com- plaint herein be, and it hereby is, dismissed in its entirety. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 2 The Trial Examiner inadvertently stated in the intermediate Report that it was not specifically alleged in the amended complaint that one of the reasons for the strike was the Respondent 's refusal to bargain. We note that the complaint does in fact contain such allega- tion. The error, however, does not affect the ultimate findings. 104 NLRB No. 43.