Kalof Pulp & Paper Corp.

714 DECISIONS OF NATIONAL LABOR RELATIONS pOARD Furthermore: It follows' from the nature of a presumption of fact that it is rebuttable 26 Contrary to General Counsel's contention that the Trial Examiner erred in ad- mitting rebuttal testimony from the strikers themselves, the Trial Examiner believes he would have erred had he excluded it. About 185 strikers, mostly women, testified firmly and convincingly that: (1) they had had no desire to abandon the strike and their fellow strikers; and (2) nothing they had participated in, witnessed, or heard about during the strike had prevented them from abandoning the strike. The demeanor of these witnesses, as they testified, demonstrated their sincerity. They were bound together in a common cause, and as many of them said, in effect, they were resolved to remain on strike until all went back. Management and its supervisors, representatives of management, were their opponents in a long and bitter economic struggle. They, themselves, had been threatened with violence by the gen- eral counsel of the Charging Party, as found above. The first act of violence, also as found above, occurred when Casteel ran into a picket with his truck. Comparative peace existed until the Charging Party brought in strangers-who stood around job sites without working-an invitation to violence. On the basis of direct evidence, and upon reasonable inferences drawn from un- contradicted evidence, the Trial Examiner cannot reasonably conclude that: (1) mis- conduct by strikers against supervisors was designed or calculated to have a coercive effect upon either strikers or employees of the parent corporation; or (2) such mis- conduct either had or might have had a coercive effect upon strikers or employees of the parent corporation.27 Finally, and returning to point (3), the Trial Examiner concludes and finds that the misconduct of union agents described herein did not constitute restraint and coercion of employees in violation of Section 8 (b) (1) (A). Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Communications Workers of America, AFL-CIO, and Local No. 4372, Com- munications Workers of America, AFL-CIO, are labor organizations within, the meaning of Section 2 (5) of the Act. 2. The operations of the Charging Party occur in commerce within the meaning of the Act. 3. The Respondent Unions have not engaged in unfair labor practices as alleged in the complaint, within the meaning of Section 8 (b) (1) (A) of the Act. [Recommendations omitted from publication.) 26 mid, p. 726. 1 To Infer, In a vacuum, that coercion against an opponent is coercion against oneself hardly squares with the realities of industrial strife as revealed in this record. Kalof Pulp & Paper Corp. and International Union of Operating Engineers, Local 501, AFL-CIO International Brotherhood of Paper Makers and its Local Union No. 670, AFL-CIO and its successor, United Paper Makers and Paper Workers, AFL-CIO and International Union of Operat- ing Engineers, Local 501, AFL-CIO. Cases Nos. 21-CA-2634 and 21-CB-875. May 1, 1958 DECISION AND ORDER On August 20, 1957, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that 120 NLRB No. 104. KALOF PULP,& PAPER CORP. 715 the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondents filed exceptions to the Intermediate Report and the Respondents filed 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 Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed .2 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts, with minor corrections I and modifica- tions, the findings, conclusions, and recommendations of the Trial Examiner. 1. We agree with the Trial Examiner that the enforcement of the contract between the Company and the Union was violative of the Act, because the contract contains a union-security clause and the Union, at the time that contract was executed, and during the pre- ceding 12 months, had not received from the Board a notice of com- pliance with Section 9 (f), (g), and (h) .4 Such enforcement was violative of Section 8 (a) (1) and (3) by the Company and Section 8 (b) (1) (A) and (2) by the Union.' 2. In agreement with the Trial Examiner, we find that by dis- charging Detrick, Peterson, Rogers, and Rothermel, the Company violated Section 8 (a) (3) and (1) of the Act. As did the Trial Examiner, we reject the Company's defense of economic necessity.' In further agreement with the Trial Examiner we believe that the 'The Respondent Company requested oral argument The request is hereby denied because the record, the exceptions , and the briets adequately present the issues and the positions of the parties 2 In view of the Respondents ' allegations of prejudice , particularly with regard to the examination of witnesses and introduction of evidence , we have carefully examined the record and have found nothing to support them 3 We note and correct the following inadvertences in the Intermediate Report , which do not affect the Trial Examiner's ultimate conclusions, or our agreement therewith : Kalof's call to Grant was on January 17, not January 18 The discussion between Zwecker and Grant with respect to the former's plans occurred on January 16, not Janu- ary 14 . The four discriminatees were not all hired after production began. Rogers was hiied in March 1956, concededly before production. 4 National Lead Company, Vitamin Division, 118 NLRB 1240 5 We are precluded by Section 10 (b) of the Act from finding the execution of the contract to be an untair labor practice, and accordingly modify the Trial Examiner's finding in this respect . We also note that in his conclusions of law the Trial Exam- iner inadvertently omitted to state that enforcement was violative of Section 8 (a) (3) as well as Section 8 (a) (1) by the Company , and in addition entirely omitted the union violations , by such action , of Section 8 (b) (1) (A ) and (2 ). We so find. 6In this connection we note that even were we to accept the Company' s offer of proof with respect to the normal ratio of production to maintenance employees in paper mills, it would not affect our agreement with the Trial Examiner. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union caused such conduct and thereby violated Section 8 (b) (1) (A) and (2) of the Act. The record shows that these four men were dissatisfied with the representation they were getting from the Union. They therefore, on January 11, signed designation cards with Operating Engineers, and it is clear that officials of the Union knew they were contemplating such a step. The testimony of Stevens, a company official, indicates that the Company, too, was perturbed at the prospect of another union entering the plant. Shortly thereafter, on January 17, Hannaford, the Union's international representative, arrived at the plant and spoke to management. One of the subjects discussed was the prospect that the shift engineers would join Operating Engineers. After this talk with management, the Union offered the shift engineers an in- crease in wages and the possibility of better shift, conditions if they renounced any action in behalf of the Operating Engineers, and threatened that they would lose their jobs if they did not do so. The men stood firm and on January 19 they were discharged. On these facts, we agree with the Trial Examiner that there is more involved here than coincidence. The rapid sequence of interlocking events establishes to our satisfaction that Company and Union were acting in concert. Moreover, we note that this conduct is precisely that contemplated in the contract between Company and Union, which we, like the Trial examiner, have found to be violative of the Act. Accordingly, in finding that the Union violated Section 8 (b) (2) by causing the Company to discriminate unlawfully against these em- ployees we rely upon : (1) the reasonable inference that the Union, in fact, brought about such discrimination in view of Hannaford's threat to these employees that they would lose their jobs coupled with the immediate fulfillment of that threat; and (2) the existence of an il- legal contract between the Union and Company requiring discrimina- tion of the type that actually occurred in this case. 3. The General Counsel excepted to the Trial Examiner's failure to provide specifically in his recommended order and proposed notice that the four discriminatees be offered full and immediate reinstate- ment, in addition to being made whole for any loss of earnings suf- fered as a result of the discrimination. It is clear from the Trial Examiner's findings and from the remedy section of the Intermediate Report that this omission is inadvertent. Accordingly, we find merit in the General Counsel's exceptions, and have modified the order and notice as requested therein. 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 : KALOF PULP & PAPER CORP. 717 I. The Respondent Company, Kalof Pulp & Paper Corp., Port Hueneme, California, .its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving effect to or performing section 3, entitled "Union Mem- bership," of its contract with United Paper Makers and Paper Work- ers, AFL-CIO, or entering into or enforcing any renewal, extension, modification, or supplement of such agreement or other bargaining agreement containing union-security provisions, unless such agree- ment has been authorized as provided in Section 8 (a) (3) of the Act. (b) Encouraging membership in United Paper Makers and Paper Workers, AFL-CIO, or discouraging membership in any labor organi- zation by discharging any of its employees or by discriminating against them in any other manner in regard to their hire or tenure of employment except to the extent permitted by Section 8 (a) (3) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, 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 rights may be affected by an agreement requir- ing 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) Offer to Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and jointly and sever- ally with United Paper Makers and Paper Workers, AFL-CIO, make them whole for the loss of pay each may have suffered by reason of the discrimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agent, for exam- ination and copying, upon request, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. (c) Post at its plant at Port Hueneme, California, copies of the notice attached hereto marked "Appendix A." 7 Copies of such notice, I In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by a representative of the Respondent Company, be posted immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that such notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply therewith. II. The Respondent Unions, International Brotherhood of Paper Makers and its Local Union No. 670, AFL-CIO, and its successor, United Paper Makers and Paper Workers, AFL-CIO, their respec- tive officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving effect to or performing section 3, entitled "Union Mem- bership," of its contract with Kalof Pulp & Paper Corp., or entering into or enforcing any renewal, extension, modification, or supplement of such agreement or other bargaining agreement containing union- security provisions, unless such agreement has been authorized as pro- vided in Section 8 (a) (3) of the Act. (b) Causing or attempting to cause Kalof Pulp & Paper Corp. to discharge or in any other manner discriminate against its employees in regard to their hire or tenure of employment or any term or condition of employment, except as authorized by Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of Kalof Pulp & Paper Corp. in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized by 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) Jointly and severally with the Respondent Employer, Kalof Pulp & Paper Corp., make whole Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel for the loss of pay each may have suffered by reason of the discrimination against him, in the manner provided in the section of the Intermediate Report entitled "The Remedy." (b) Notify the Respondent Company, in writing, sending a copy to each of the above-named employees, that it withdraws its objection to his employment as a shift engineer-oiler and request the Respondent Company to offer each of the above-named employees immediate and full reinstatement to his former or substantially equivalent position. KALOF PULP & PAPER CORP. 719 (c) Post at its business office in the Port Hueneme, California, area, copies of the notice attached hereto marked "Appendix B." 8 Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by authorized rep- resentatives of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members of United Paper Makers and Paper Workers, AFL-CIO , are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by other material. (d) Mail to the Regional Director for the Twenty-first Region signed copies of the notice marked "Appendix B" for posting at the Kalof Pulp & Paper Corp.'s Port Hueneme, California, plant in places where notices to employees are customarily posted, for a period of sixty (60) consecutive days thereafter. Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by authorized representatives of the Respondent Union, be forthwith returned to the said Regional Di- rector for such posting. (e) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent Union has taken to comply therewith. 8 See footnote 7, above. 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, as amended, we hereby notify our employees that: WE WILL NOT give effect to or perform section 3 , entitled "Union Membership ," of our contract with United Paper Makers and Paper Workers , AFL-CIO, or enter into or enforce any renewal, extension, modification , or supplement of such agree- ment or other bargaining agreement containing union-security provisions, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. WE WILL NOT encourage membership in United Paper Makers and Paper Workers, AFL-CIO, or discourage membership in any labor organization by discharging any of our employees or by discriminating against them in any other manner in regard to their hire or tenure of employment except to the extent per- mitted by Section 8 (a) (3) of the Act. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection , and to refrain from any or all of such activities , except to the extent that such rights 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 offer Charles L. Detrick , Ray W. Peterson , William T. Rogers, and Carroll W . Rothermel immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and jointly and severally with United Paper Makers and Paper Workers, AFL-CIO, make them whole for the loss of pay each may have suffered by reason of the discrimination against him. All our employees are free to become, to remain , or to refrain from becoming or remaining members of any labor organization except to the extent that this right may be affected by an agreement in con- formity with Section 8 ( a) (3) of the National Labor Relations Act. KALOF PULP & PAPER CORP., Employer. Dated---- ------------ By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL MEMBERS OF THIS UNION AND EMPLOYEES OF KALOF PULP & PAPER CORP. 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, as amended, we hereby notify you that : WE WILL NOT give effect to or perform section 3, entitled Union Membership, of our contract with Kalof Pulp & Paper Corp., or enter into or enforce any renewal, extension, modification, or supplement of each agreement or other bargaining agreement containing union-security provisions, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause Kalof Pulp & Paper Corp. to discharge or in any other manner discriminate against its employees in regard to their hire or tenure of employment KALOF PULP & PAPER CORP. 721 or any term or condition of employment, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of Kalof Pulp & Paper Corp. in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership, in a labor organization as a condition of employment as author- ized by Section 8 (a) (3) of the Act. WE WILL jointly and severally with Kalof Pulp & Paper Corp. make whole Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel for any loss of pay each may have suffered by reason of the discrimination against him. UNITED PAPER MAKERS AND PAPER WORKERS, AFL-CIO, Labor Organization. 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 This proceeding, brought under Section 10 (b) of the Act, was heard at Oxnard, California, on June 10 to 12, 1957, pursuant to due notice to all parties.' The complaint alleged in substance that: ( 1) The Respondents on December 3, 1955, entered into a collective -bargaining agreement which afforded recognition to the Paper Makers, and which contained a union-security provision , despite the fact that the Paper Makers had not at that time complied with Section 9 (f), (g), and (h) of the Act; and (2) on or about January 18 , 1957, the Respondents acting in con- cert, by A. W. Hannaford, an officer of the Paper Makers, offered to increase the pay of certain employees if they would stop their activity on behalf of the Engineers, and threatened their discharge if they did not stop the same activity. The complaint also alleged that: (3) The Company, on or about January 19, 1957, discharged four employees on demand of the Paper Makers, because of their activities in behalf of the Engineers; and (4 ) thereby the Company had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3), and the Paper Makers had engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act. The Company duly filed an answer which denied the commission of the alleged unfair labor practices, and alleged affirmatively that the discharges mentioned in the complaint were for "economic reasons arising out of the fact that there were no further duties for each of said employees to perform." The Paper Makers also duly filed an answer which denied the commission of the alleged unfair labor practices , and alleged affirmatively that the four employees discharged were laid off "because of a management decision to make boiler room 1 In this Report , Respondent, Kalof Pulp & Paper Corp., is referred to as the Com- pany; Respondent , International Brotherhood of Paper Makers and its Local Unior No. 670, AFL-CIO, and its successor, United Paper Makers and Paper Workers, AFL- CIO, as the Paper Makers ; and these parties Jointly as the Respondents ; International Union of Operating Engineers , Local 501 , AFL-CIO, as the Engineers ; the General Counsel and his representative at the hearing , as the General Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended , as the Act. 483142-59-vol. 120-^47 722 DECISIONS OF NATIONAL' LABOR IRELATIONS BOARD operations automatic," and that the employees were not transferred to other posi- tions because of certain prior conduct of the employees. Both answers admitted certain allegations of the complaint , which related to the business operations of the Company and to the labor organizations involved. These will be mentioned hereafter. At the hearing all parties were represented , were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record , and to file briefs and proposed findings. The Paper Makers, the Engineers, and the Company have presented briefs which have been considered. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and a stipulation of the parties at the hearing establish that the Company is a California corporation, engaged in the manufacture of paper for corrugated boxes, having its plant and principal place of business at Port Hueneme, California. During the past calendar year, the Company sold goods, valued in excess of $100,000, to firms located in California, which firms, in turn, annually ship products valued in excess of $50,000 directly outside the State of California. Upon the pleadings and the stipulation, I find that at all times material herein the Company was engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The pleadings also establish, and I find, that the Paper Makers and the Engineers at all times pertinent hereto were labor organizations within the meaning of Section 2 (5) of the Act, and that the Paper Makers, since December 3, 1955 , has been recognized by the Company as the bargaining representative of the Company's production and maintenance employees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: undisputed evidence 1. The contract It is not disputed that on December 3, 1955 , the Company and the Paper Makers entered into a collective bargaining agreement which provided for recognition of the Paper Makers as the exclusive bargaining representatives of the Company's production and maintenance employees. The contract 2 also provided , in part, as follows: SECTION 3 . Union Membership. All employees shall be required , as a condition of employment , to be mem- bers of the union within (30) days after the beginning of their employment or, thirty (30) days after the effective date of this provision, or thirty (30) days after the signing date of this agreement, whichever is latest. It is also undisputed that the Company and the Paper Makers enforced this provision of the contract. At the hearing, upon request of the General Counsel, the Trial Examiner took judicial notice of the Board's records which show that the Paper Makers, and its then Local Union No. 670, did not achieve compliance with Section 9 (f), (g), and (h ) of the Act until February 8, 1957 .3 The Paper Makers made no claim to the contrary. Upon the undisputed evidence, I find that the Paper Makers on December 3, 1955, were without authority to execute a contract containing the above provision, and that the enforcement of the same by the parties was a violation of the Act. 2. The discharges It is likewise undisputed that the employees named in the complaint, Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel, were discharged on January 19, 1957. 2 General Counsel's Exhibit No. 2 in evidence. 8 General Counsel's Exhibit No. 7 in evidence, certificate of Florence L. Luppi, super- visor, compliance, Twenty-first Region, National Labor Relations Board, was received in evidence as indicating what the Board's records established. KALOF PULP & PAPER CORP . . 723 These men occupied positions classified in the contract, as "Shift-Engineer and Oiler," at a rate of pay of $2.55 per hour. Immediately, upon their discharge, their duties were assigned to 4 employees classified as "Oiler and Junior Mechanic," who were paid at a rate of $2.27 per hour. It is likewise undisputed that the men were discharged individually by James Will, whose title was Steam Plant Chief Engineer, and that in each case he informed the employee that he had been instructed to tell him that he had been hired in the construction phase of the plant, and that as of 8 a. in. that morning the construction phase had ended, and in consequence he was discharged. 3. Persons involved; their authority It is also undisputed that at all times pertinent hereto, Archie L. Wicklander was president and Raymond W. Johnson was financial secretary of the local of the Paper Makers, and that Isadore Wittman was a member of the grievance com- mittee of the same organization. Arthur W. Hannaford was the international representative of the parent organization. It will be noted hereafter that there were many changes in management during the period covered by the controversy, and the testimony. However, it is not dis- puted that at the beginning of the pertinent period the hierarchy of management was as follows: R. W. Stevens, Sr., was the manager, who had full charge of all operations; reporting to him was a superintendent, Claude Sharp, who was responsible for the conduct of tour foremen, and the operating personnel who were actually engaged in the making of paper. Also reporting to Stevens, Sr., was the master mechanic, Walt Beam, who had charge of maintenance employees, except the elec- trician. Also reporting to Stevens, Sr., was his son, R. W. Stevens, Jr., who occupied the position of plant engineer. Stevens, Jr., had charge of construction workers, shipping and receiving personnel. Also reporting to Stevens, Sr., through Stevens, Jr., was James Will, whose title was steam plant chief engineer. Will was the super- visor in charge of the classification of shift engineer and oiler, oiler and junior mechanic, and the electrician. 4. Duties of shift engineers and oilers-oilers and junior mechanics There is likewise no dispute as to the duties of the shift engineers and oilers. Hannaford, of the Paper Makers, in his testimony said that the classification was given that name so that the shift engineers would know that they were expected to do oiling on their shift. The employees testified that their duties were to operate the boilers, turbines, and other boilerroom equipment. They added oil, water, and chemical water-softeners as needed, and performed routine supervision and main- tenance of the equipment and its operation. They were also required to do mainte- nance or repair work on equipment which was brought to the boilerroom and they also performed maintenance and repair work, throughout the plant as required or ordered. It was this last duty, performing maintenance and repair work, outside the boiler- room, that sparked the dissatisfaction of the shift engineers, which is an important element in this controversy. It is likewise undisputed that the oilers and junior mechanics who were assigned the duties of the shift engineers upon their discharge, performed their oiling and mechanic duties, outside the boilerroom, upon the paper making equipment. They were not regularly assigned assistants to the shift engineers. 5. The origin of the controversy It is not disputed, that around January 1, 1957, the dissatisfaction of the shift engineers in regard to performing maintenance and repair work outside the boiler- room had crystallized. These men felt that if they were required to do that work, they should be paid the same rate of pay as journeymen mechanics or millwrights, who were paid at a rate of $2.63 per hour, or that they should be relieved of such work. They were members of the Paper Makers, so they voiced their dissatisfaction at the union meetings. When their complaints were not acted upon, they became dissatisfied with their representation by the Paper Makers. Around January 1, they began to talk among themselves about joining the Engineers. As to the events which occurred from that point until their discharge, there is dispute between the discharged men, the Paper Makers, and the Company. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The disputed points The sequence of events: period prior to January 17 4 After discussing for several weeks the advisability of their joining the Engineers, the men finally decided to take that step. On January 11, each of the four dis- chargees signed a card designating the Engineers, Local No. 501, as his representa- tive for the purpose of collective bargaining. These cards were delivered to a representative of the Engineers. The shift engineers testified at the hearing, and without contradiction, that about this time some of them discussed their desire to be represented by the Engineers with various management officials and with officers of the Paper Makers. Charles L. Detrick testified that a few days after the shift engineers signed the cards mentioned above, Sharp, the plant superintendent, came to him in the boilerroom Sharp said that he had heard rumors that the shift engineers were trying to bring the Engineers into the plant. Detrick said that the rumor was true, that the shift engineers felt that they would receive better representation from the Engineers. Sharp said that the Company would take a dim view of another union coming into the plant, that they had relations with the Paper Makers and would not like to have another union in the plant. Detrick told Sharp that the men were determined to go ahead. Detrick also discussed the situation with Will, the chief engineer, on several occasions about the same time. Will said that the Company wouldn't like the men bringing the Engineers into the plant, but Detrick gathered the impression that Will thought it was a good idea for the men to be represented by the Engineers In the course of these conversations, Will talked about the possibility of the men being discharged because of their affiliation with the Engineers. He gave, as his opinion, that they would not be discharged since they had made application to the NLRB to get permission for an election. The last conversation between Detrick and Will on this subject took place on January 14 in the boilerroom. William T. Rogers testified credibly that sometime between the 11th and the 15th of January he talked to Stevens, Jr., the plant engineer, about having the Engi- neers represent the group. On this occasion, he told Stevens, Jr , that he thought the shift engineers had a "beef about doing maintenance work outside the boiler- room, and that the Union had been kind of short with them," and that he thought the shift engineers would be better represented by the Engineers. Robert W. Stevens, Jr., testified credibly that the shift engineers worked directly under Will as chief engineer, and under him as plant engineer. Early in the week of the 13th or 14th of January, Rogers called him aside and informed him that the shift engineers were going to get the Engineers to represent them, that they were unhappy with the treatment they had received at the hands of the Paper Makers. That was the first he heard officially that the shift engineers contemplated a change of representatives, although he had heard rumors to that effect prior to that time. Stevens testified that this news caused him some concern, so he immediately relayed this information to Sharp, the plant superintendent, explaining exactly what Rogers had said to him. He and Sharp discussed the subject at some length because they did not want another union representing anybody in the plant. The Company's relationship with Hannaford and the Paper Makers "had been of the finest up until that time." 5 At the end of this discussion, Sharp said that he was going to contact Hannaford, and explain the situation to him, and see if he couldn't have Hannaford come down and talk to the boys and square the thing away. Shortly after this con- versation with Sharp, Wicklander, the president of the Paper Makers, told Stevens that Wicklander had talked to Hannaford, and that the latter was coming down to the plant. However, at that time, Stevens did not associate the visit of Hannaford directly to the matter of the shift engineers. Late on the afternoon of Wednesday, January 16, Sharp told Stevens that there was to be a meeting at 4 o'clock the next day, Thursday, to discuss the situation with Hannaford and the Paper Makers, and Stevens was directed to be at the meeting. Stevens testified that Hannaford arrived at the plant Thursday afternoon, osten- sibly for the meeting, and met the Paper Maker representatives, and company offi- cials, but that the meeting did not take place. He said that after everybody had shaken hands, Hannaford and Zwecker, the general manager, went into an adjoining office for a private talk. While they were talking, Zwecker was called to the tele- phone. When he came from the telephone, Zwecker said that Kalof had called 4 All dates in this section of the Report are in 1957, unless otherwise noted. 5 Transcript page 114. KALOF PULP & PAPER CORP . 725 him from Los Angeles, and that he had to go to Los Angeles, and that therefore they would have to postpone their meeting until the following day. Sharp and Zwecker immediately left the plant , and Stevens and the other conferees returned to their usual duties. This witness stated that he did not attend the meeting on Friday , because on the following morning, when he met Sharp , the latter told him that he was discharged on orders from Mr. Kalof. He was presented with his check and a notice of 'termination. Stevens, Jr., also testified that the shift engineers were not hired in connection with the building of the plant. He explained that all labor for the construction of the paper mill had been hired through the Building Trades Council at Ventura pursuant to a labor agreement between the Company and that Council, and that the men hired for the construction of the paper mill had been terminated when the mill was put into operation some time before the shift engineers were hired. It was distinctly understood between the Building Trades Council and the Company that when the mill started operation , the men hired for the construction would be terminated. Stevens, Jr., said that Peterson was hired by his father , and the other shift engineers were hired by Will, the chief engineer, after they had discussed the hiring of each man with him, as plant engineer , and that the shift engineers were hired to do production work , the operation of the paper mill's boilerroom. Raymond W. Johnson, financial secretary of the Paper Makers, testified that on January 12 or 13, he had a conversation with Peterson about the fact that the shift engineers were dissatisfied with the Paper Makers. Peterson said they were dissatisfied because they were doing outside work, out of the boilerroom, and they felt that they should be paid at least Class A Millwrights' pay, and that it should be retroactive to July 1. At that time Peterson told Johnson that the shift engineers were definitely going to get the Engineers to represent them. Johnson tried to talk Peterson out of taking that action. Johnson also testified that he had heard rumors, prior to that date, that the shift engineers were going to join the Engineers. January 17 It is undisputed that on this date Hannaford , the International representative, came to Oxnard. Hannaford testified that he came to Oxnard to attend a regular meeting of the Local, and to install its newly elected officers, and that his coming to Oxnard had no connection with the problem of the shift engineers, that he did not know of the problem until he arrived in Oxnard. However, whether that situation prompted his visit to Oxnard or not, Hannaford immediately concerned himself with the matter of the shift engineers. Raymond W. Peterson testified credibly that on this date he was on the 4 to 12 shift, and that around 5 p. in. Hannaford, Johnson, and Wicklander came to the boiler- room to see him. Hannaford told him that the Paper Makers could get the shift engineers $2.63 per hour. Peterson told him that he was going to go along with whatever the rest of the men did . Hannaford then said that if the shift engineers brought in the Engineers, he would get Peterson's job, and have him "blackballed" at all the rest of the plants up and down the coast. After that the union officials left the boilerroom as they were in a hurry to have their dinner, and attend the meeting of the Paper Makers, which was scheduled to be held that evening. Peterson testified that as soon as the union officers departed he phoned Rothermel, another of the shift engineers, and told him to have the rest of the group at the union meeting that night, as the prospects were "rugged." Later that evening, after the union meeting, one of the group called him and said that there would be another meeting the following morning. That evening the Union had its regular meeting and Hannaford installed the officers. After the meeting Johnson, the secretary, told Detrick that the union officers would like to have a talk with the shift engineers . Hannaford, Wicklander, Johnson, and Wittman, the electrician, represented the Union , and Rogers and Detrick attended . Rothermel did not attend because he had to go on the midnight shift, relieving Peterson who was on the 4 to 12 p. in . shift. Hannaford asked what the shift engineers had done in regard to getting the Engineers into the plant. Detrick replied that the men had signed application cards to the NLRB for permission to hold an election for the Engineers to represent them. Hannaford asked if the men had actually joined the Engineers, but Detrick declined to state whether they had or not. Hannaford said that the Paper Makers wanted the men to be Paper Makers, and there wasn't going to be any other union in the plant, and that they would take away the men's jobs if they didn't go along with the Paper Makers, drop the petition, and discontinue their activity with any other union. 726' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson said that the Paper Makers could get the shift engineers $2.63 per hour, if they would take no further action in regard to the Engineers. According to Detrick, there was a heated argument, and Wicklander said that he would take over the boilerroom himself, and operate it, if the men didn't go along with the Paper Makers. After considerable discussion, Rogers said that all the men were drinking, and that they were getting hot, and that they might as well drop the subject for the evening. They agreed to meet at the plant at 10 o'clock the following morning. William T. Rogers corroborated this testimony of Detrick. Wittman, the plant electrician, and a member of the grievance committee of the Paper Makers, was also examined as a hostile witness by the General Counsel on this point, and , in general, corroborated' the testimony of Detrick. January 18 At 10 o'clock on this morning Hannaford, Johnson, Wicklander, and Wittman, representatives of the Union, met with Rogers, Peterson, and Detrick. Johnson told the men that the Company would pay them $2.63 an hour, and that the Union might be able to get $2.68, or whatever it was that they thought was the proper scale. However, he was cut off sharply by Hannaford, who said that the Company would pay the men $2.63 per hour, and that they would either accept that or he would get their jobs. The men said they'd like a chance to talk it over, so it was agreed that the union officials would retire, and give them a chance to discuss the matter. When they finished their discussion, they told the union officials that they would let the matter go as it was at that time. According to Detrick, Hannaford then said, "Well, all is fair in love and war, and this is war, and there's your jobs, boys. We'll have them." According to Peterson, when the union officials met with them that morning, they recommended that the men accept the $2.63 per hour. They asked for a few minutes to discuss it and when the union officers returned , Rogers spoke for the men. He told them that they wanted representation , that they didn't want all the extra work thrown at them , and that they were going to let their application with the Engineers take its course. Hannaford then said, "You understand this is war? All is fair in love and war. I will have your jobs. So long, and good luck." Also on this date, January 18, the Engineers filed a petition with the Regional Office of the Board at Los Angeles , requesting its certification as representative for a unit described as "all employees in the boiler department." On the same date the Regional Office mailed notices to the Company and the Paper Makers , notifying them that the Engineers had filed the aforesaid petition. January 19 About midday on this date, the Company received the notice from the Board that the Engineers had filed a petition for certification of representatives for the em- ployees in the boilerroom . However, by that time, the Company had begun the dis- charge of the men . Detrick relieved Rothermel at 8 a. m. As he did so, Will approached the men and told them that they were discharged , saying, "As of 8 o'clock this morning, the construction phase of this program has ended . You fellows were hired under a construction phase of the program. As of 8 o'clock this morning that phase is ended , and the oiler and junior mechanics will take over the shifts." Peterson testified that the Company phoned his home and asked him to come to the plant at once. When he arrived, Will gave him his termination notice, his check, and the same speech as he had given the other men . Rogers said that the news of the discharge was phoned to him by Detrick, so he went to the plant. Upon his appearance , Will discharged him in the same manner. In addition to the above testimony, several of the discharged employees testified to other matters which shed light upon the contentions of the parties. Peterson testified that prior to his employment by the Company he had been employed for approximately 10 years by the Fibre Board Products, Inc., Stockton, California, in the capacity of shift engineer, steam and electric. Sometime prior to July 5, 1956, he read in a papertrade journal that the Company was building a new plant. He wrote a letter to the Company asking about positions, and received a reply from Stevens, Sr., to the effect that his letter would be kept on file. Shorly thereafter Peterson went on his annual vacation and while away, received two calls and a tele- gram from Stevens, Sr. Upon returning from his vacation , he phoned collect to Stevens, and they discussed Peterson's assuming the position of assistant chief or chief engineer at the plant. Stevens instructed Peterson to fly down to the plant for a personal interview at the Company's expense. Peterson flew to the plant and dis- cussed his qualifications and experience with Stevens , Sr. At the conclusion of this KALOF PULP & PAPER CORP. 727 interview, he was introduced to Sharp, the plant superintendent. Approximately 3 days-later, Stevens, Sri, -notified Peterson by telephone that: he had been accepted as a man to "break in" for Will's job as chief engineer, as Will's retirement was expected to take place in about 6 to 12 months. On that assurance, Peterson gave 2 weeks' notice to Fibre Board Products, -Inc., and began work with the Company on July'5, 1956. - At the time of- his interview with Stevens, Sr., they discussed membership in labor organizations. Stevens-told Peterson that he would have to join the Paper Makers when he went to -work for the Company, because the Paper Makers were the bargain- ing agent. Peterson told him -that was satisfactory, as the job- sounded-very good. They also discussed' the fact that at that time Peterson was a member of- the Engi- neers. 'Stevens said that he had no objection to Peterson's being a member of the Engineers, as long as Peterson didn't come into the Company's plant and instigate activities on behalf of,the Engineers. Stevens asked Peterson to give him his word that he would not initiate any activity on behalf of the Engineers. Peterson willingly gave that assurance. This assurance- to Stevens, Sr., was referred to by Hannaford in the conversation which Peterson had with Hannaford and the other union representatives on the morn- ing of January 18. In the course of that conversation, Hannaford told Peterson that at the time Peterson was hired he had checked with the president of the local of the Paper Makers at Stockton on Peterson's acceptability as a person of good intent and a man of his word. On that point, Schriever, the president of the local of the Paper Makers, at Stockton, had informed Hannaford that Peterson was a man of his word, and a capable engineer. According to Peterson, it was at that point, that Hannaford said that he would have Peterson's job, and have him "blackballed" with all the rest of the plants up and down the coast. Detrick testified that he started to work for the Company about June 23, 1956. He was hired by Will, the chief engineer, who assured him that the job was a perma- nent one. On June 23, when he began work, the construction work had been finished, and the plant was actually engaged in making paper. Rothermel testified that he was a lieutenant commander, and an engineering officer in the Navy, and that he had served on large-size combat ships for over 20 years. He was a licensed marine chief engineer, unlimited tonnage, and a stationary engi- neer licensed in the city of Los Angeles. This witness was hired by Will, who assured him that the plant was a new and growing operation which would afford him permanent employment. Rogers testified that he was also hired by Will about the same time, and under the same circumstances as the other shift engineers. The Defense of the Union Raymond W. Johnson, Financial Secretary of the Paper Makers, testified in behalf of that organization. Some of his testimony has been referred to previously. He testified further that Hannaford came to Oxnard on Thursday, January 17, the date of the regular monthly meeting of the Union. On that afternoon Hannaford, Wick- lander, Johnson, and Zwecker, had a conference in the mill office. Sharp, the super- intendent, and Grant, Kalof's liaison man, were also present part of the time. The Paper Makers' representatives told Zwecker about the feeling among the shift engi- neers, that if they were doing work outside the boilerroom, they should be paid at least journeymen's wages, $2.63 per hour, and that the wage rates should be retro- active to July 1. Zwecker said that he had just been appointed general manager of the mill, having begun work on Monday of that week, but that he would give the raise some thought. However, Zwecker said a raise would take some time, because his main interest at that time was not in increasing but in cutting expenses which might necessitate the termination of some employees. After this talk with Zwecker, the union representatives had a talk with Peterson. They tried to discourage Peterson from going into the Engineers. Peterson said that when he was hired, he was given to understand by Stevens, Sr., that Peterson would be the chief engineer within 6 months to a year. Peterson said he could stop the move into the Engineers, if they would give him some assurance that he would be the chief engineer within 6 months. They told Peterson they couldn't promise him anything like that, they couldn't even promise him the $2.63 per hour that the men asked. Johnson denied that Hannaford ever said to Peterson that he would get Peterson's job and have him "blackballed." Johnson testified that the conversation with Peter- son ended with Hannaford saying, "0. K., Pete, go ahead and do what you want to 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do. We will try to fight the Engineers coming in, moving in, taking our organi- zation." 6 At the union ;meeting held that night, Hannaford made a speech and related the substance of the conference with Zwecker, that his main purpose was to cut expenses. As to the conference with the shift engineers after the union meeting, Johnson testi- fied that the principal topic was the shift engineers joining the Engineers . He said that the Paper Makers' representatives could never get the men to admit that they had actually signed cards for the Engineers . The union officials ,asked the shift engineers why they wanted to join the rival organization , and the men replied that they had never received good ,representation from the Paper Makers. The union officials told the shift engineers of their talk with Zwecker and their efforts to get an increase in pay. The men were drinking in the course of this conference , and after a while Peterson and Detrick became insulting to Hannaford , so they all decided that they would meet on the next morning and discuss the situation again. On the following morning, the Paper Makers' representatives again met with the shift engineers in the boilerroom . After the shift engineers had discussed the matter privately, the Paper Makers' representatives asked the men if they had reached a decision. The men said that they had, that they were going to continue with their efforts to have the Engineers represent them. Hannaford said that he hated to see it, and that the Paper Makers would oppose the Engineers ' coming in. He also made a statement to the effect that "All is fair in love and war, and love and peace, and that the war is on." Johnson denied that Hannaford at any time said that he would "get" the men's jobs. Johnson also testified that Peterson slept frequently on the graveyard shift; he would usually take a nap on this shift about 1 o'clock, and ask the witness to wake him up prior to 3 o'clock, at which time Peterson was to make his rounds. On cross-examination, Johnson said that he told Sharp , the superintendent, on more than one occasion , that Peterson was sleeping on the job. He said that he informed Sharp of this within the month before the shift engineers were discharged. He also testified that Aycock, one of the supervisors, had previously warned Peterson about sleeping on the graveyard shift. On cross-examination, as to the conference with Zwecker on Thursday afternoon, this witness testified that the desire of the shift engineers to affiliate with the Engi- neers was discussed with Zwecker at that meeting; that was the reason that the Union asked Zwecker to give a raise in pay to the shift engineers. All the union officials dis- cussed that phase of the situation with Zwecker. In that conversation, Zwecker did not tell them that he contemplated a change whereby the junior mechanics would take over the duties of the shift engineers. Johnson also said that around the first of January he discussed the situation with Sharp, who told him that once the mill was running smoothly and the new equipment installed, they were going to combine the jobs of shift engineers and oiler-junior mechanic. Johnson also testified that approximately 30 days before the men were discharged, there had been considerable work outside the boilerroom . But at about that date, that type of work diminished considerably. Johnson also testified that he was one of the oilers-junior mechanics, and that the men of that classification were assigned the duties of the shift engineers at the time the latter were discharged. Prior to that time, none of the oilers-junior mechanics had any experience as shift engineers. They were continued at their rate of pay of $2.27 an hour, performing both their former duties and those of the shift engineers. After some period of time, the stand- ing committee of the Union asked management to raise the pay of these men. Archie L. Wicklander, president of the Paper Makers, also testified. He stated that he first saw Zwecker , the new general manager , at the plant on January 14 or 15. On January 17, after talking to Zwecker, the Paper Makers' officers went to the boilerroom and talked to Peterson. They asked him whether the shift engineers had joined the Engineers, and whether or not they had petitioned, but Peterson would not give them an answer. They told Peterson that they would probably be able to get the shift engineers a raise in pay, and probably arrange the type of rotation of shifts that they wanted. Hannaford told them that they had very little chance of having the pay retroactive. Hannaford did not threaten to have Peterson discharged, or to have him "blackballed." Wicklander also testified as to the meeting of the Paper Makers' officers with Detrick, Rogers, and Peterson on the morning of January 18. He said that after the shift engineers had discussed the matter privately, they told the Paper Makers' officers that they were going to continue their efforts to have the Engineers represent @ Transcript , page 302. KALOF PULP & PAPER CORP. 729 them . He said that at that point Hannaford said, "That does it. From here on, it's war." 7 He denied that Hannaford threatened to have any of the men discharged. Arthur W. Hannaford, the international representative of the Paper Makers pre- viously referred to, also testified. He said that on January 17 he came to Oxnard on a routine visit to install the officers of the Union. He met Wicklander and Johnson, and from them learned about the shift engineers' dissatisfaction, of which he had no previous knowledge. About 1:30 or 2 o'clock, he learned that there was a new manager by the name of Zwecker in the plant, so he told Johnson and Wicklander that he would like to meet Mr. Zwecker. They went to the office and met with Zwecker. Mr. Sharp, the superintendent, also attended their meeting, and Grant was in and out of the meeting. In the course of this conference Hannaford told Zwecker the men deserved more money, that they were entitled to the journeymen's rate of $2.63 an hour. Zwecker said that he had come to the plant to put it on a paying basis, that it was run inefficiently, and that it was his job to cut expenses, not to increase them. After this discussion with Zwecker, they had a talk with Peterson in an effort to find out what the difficulty was. Peterson told Hannaford that wages were one point and that the shift arrangement was another. He asked Peterson if the men had already joined the Engineers, but Peterson never gave him a definite answer. In the course 'of this conversation, it developed that Peterson had an impres- sion that Hannaford had tried to keep him out of the job originally. Hannaford explained to Peterson that he had checked with the president of the Paper Makers at Stockton as to what kind of a fellow Peterson was. Hannaford denied that he ever told Peterson that if he joined the Engineers he would either have him discharged, or "blackball" him. Hannaford also testified that at the regular meeting of the Union that night he reported to the membership the substance of his talks with Zwecker, and that after- wards he had a discussion with the shift engineers. At that time he told the men that he thought he could get the rate of $2.63, but they would have to do more main- tenance work. He also told them that he could probably arrange a satisfactory shift schedule. He asked them if they had gone so far with the Engineers , that they couldn't back out, but the men would not give him a definite answer. On the follow- ing morning Hannaford and the other officers of the Paper Makers went to the plant. Hannaford said that when he was informed that the men were going "to stick with the Engineers," he said, "I'm sorry to hear that, fellows, but that's the way it is. You've made your decision, and from now on it's war. I'll do everything I can to stop the election, and defeat you if it happens." Hannaford denied that he ever told the men he would get their jobs. He also denied that he ever requested the Company to fire the men. On cross-examination, Hannaford said that he might have told the men, that he couldn't guarantee, that the men would not be mixed up in the curtailment of force, that Zwecker had talked about." 8 He also said that in the conference on January 18, he had told the men that they would get the $2.63 an hour and have the shift adjusted "if they would stick with us." After receiving the decision of the shift engineers , Hannaford went back to say goodbye to Zwecker. He first learned that the shift engineers had been fired in the following week. The Company's Defense The Company presented a single witness, Jack Grant, to support its defense. At the time of the incidents with which we are concerned herein, he was the per- sonal representative of Kalof, the owner, at the plant. After certain changes in management which shall be mentioned, he became the operations manager, and was in that position at the time he testified. From the testimony, it is clear that most of the management officials who were concerned with the operation of the plant at the time pertinent hereto had left the employ of the Company prior to the hearing, or were unavailable. According to the evidence, Stevens, Sr., the general manager of the plant, was discharged in October 1956. With his departure, Sharp, with the title of superin- tendent, became top man in management . Zwecker became general manager on Monday, January 14, and on that date Sharp reverted to his previous authority as superintendent . Sharp was unavailable as a witness at the hearing because he suffered a brain hemorrhage on February 14, from which he had not recovered. Walt Beam, master mechanic, and Stevens, Jr., plant engineer, were both dis- ° Transcript. page 386. 8 Transcript, page 435 et seq 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged during Zwecker's tenure as general manager . According to Grant, the decision to fire the shift engineers was made by Zwecker, but he was unavailable as a witness because Zwecker himself was discharged on May 1, 1957. Grant testified that he first met Zwecker at the home of Kalof in Beverly Hills. They discussed the number of people employed at the plant, and when Zwecker heard about the number of maintenance people, he "blew his top." On January 14, Zwecker took over as general manager of the plant. On that day, Zwecker had a talk with Grant. He said that he felt Stevens' Jr., who was in charge of con- struction and maintenance, was no longer essential to the organization, and that be was going to speak to Kalof about firing him. Zwecker also said that he had heard rumors of the men in the boilerroom being dissatisfied over doing "outside" work and that some of the men in that department had been drinking, and that after he got rid of Stevens he was going to release the men in the boilerroom, as he felt that the oilers could handle the boilerroom in addition to their other duties. Grant also testified that on Thursday, January 18, Kalof called Grant and told him to bring Sharp into Beverly Hills. There they conferred with Kalof, who told Sharp that he was to discharge Stevens, Jr., on the following morning. On the following morning, Grant was with Zwecker when Sharp came in and reported to Zwecker that he had released Stevens. Then Zwecker said that as long as Stevens had been released, he felt that it would be a good time to release the boiler men, and have the oilers take over their positions as of the following morning. Grant said that Zwecker made the decision to discharge the shift engi- neers and that at the time of making the decision, Zwecker said that the change would increase the efficiency of operations. Zwecker also inaugurated other changes for the purpose of efficiency. He "streamlined" the shipping-receiving department so that one man was transferred from that department to an "inside" job. Also the plant was put on a four-shift basis. At the date of the hearing, Grant testified that the plant was operating with two less men than before the discharge of the four shift engineers. Concluding Findings As the above narrative indicates, there is no dispute about the sequence of events which preceded the discharge of the shift engineers on January 19. However, there is sharp conflict between the discharged employees and the representatives of the Paper Makers as to what was said by each group in various conferences which preceded the discharge of the employees. On those points, I credit the testimony of the employees, because (1) the men impressed me as honest and reliable wit- nesses; (2) their testimony is corroborated in general by the testimony of Stevens, Jr., and Wittman, a Paper Maker representative; and (3) their testimony is con- sistent with the undisputed evidence and the undisputed sequence of events. I was also favorably impressed by Stevens, Jr., as a witness. He was the only company official, directly concerned with the events of the controversy, who testi- fied, and he did so in a fair and forthright manner. While his testimony may be subject to a suspicion of bias, because of his own discharge by the Company, I could perceive no bias or rancor in that witness. To all appearances, he had no personal interest in the proceeding, and testified in an honest and candid manner. I also have credited the testimony of Wittman, on those points upon which his testimony agrees with the testimony of the dischargees. During the period prior to the discharges, Grant was a personal representative of the owner of the plant, but he had no responsibility for any part of the plant operations. Apparently, his duty was to observe the operation of the plant and to report to Kalof. His testimony gave the impression of being an improvisation, a substitute, for the testimony of the Company's supervisors who actually partici- pated in the events which led up to the discharge of the four shift engineers, but who were unavailable as witnesses, because of their illness or prior discharge by the Company. There were points upon which Grant had no knowledge, and much of his testimony was a recital of what the absent officials said, when they took certain action. At the hearing, the Trial Examiner was apprised of these circum- stances, which explained the absence of the management officials, and permitted the Company wide latitude in developing the testimony of Grant. However, the testimony of Grant was not impressive. It seemed to lack that convincing quality which springs from firsthand knowledge of the events, and their forthright narration. A consideration of the testimony leads to the conclusion that the Company's defense-as exemplified by Will's speech to each employee at the time of discharge, and the Company's answer-that the men were hired for construction work which RAT OF PULP & PAPER CORP. 731 had come to an end, is simply untrue. The testimony of Stevens establishes that the construction workers were hired pursuant to a contract with the Ventura Build- ing Trades Council, and that the construction workers were terminated at the time the plant began the manufacture of paper, and that subsequently the shift engineers were hired to perform duties in the boilerroom, connected with the manufacturing process. Nor is the testimony that Peterson slept on the job, and that Detrick in- dulged in alcoholic beverages "before going to work" acceptable in the light of all the evidence. Strangely enough, these alleged delinquencies are advanced by the Union, and not seriously supported by the Company. In any event, they afford no explanation for the discharge of Rothermel and Rogers, whose competence and record of performance as employees appears to have been above even the slightest suspicion. These various reasons advanced for the discharge of the men , which are unsupported, even by the flimsiest evidence , are revealed in the light of all the evidence to be pretexts, or shams, used by the Company and the Paper Makers to hide the real reason for the discharge of the shift engineers. All the evidence in this case establishes that the Company and the Paper Makers had established a relationship mutually satisfactory, and that both parties were deter- mined that it would not be disturbed, even if its continuance meant the commission of unfair labor practices. This can be seen clearly from the testimony of Stevens. He said that the Company used great care at the time it engaged the building and construction workers through the agency of the Building Trades Council to insure that the contract of those parties provided that the construction workers would be terminated at the time the plant was put into operation, so that the operational em- ployees of the plant would be represented by the Paper Makers. On December 3, 1955, prior to the plant's being put into operation, the Company and the Union executed a contract providing that all employees of the Company would become members of the Paper Makers. The close community of interest of the two is fur- ther shown by the testimony of Peterson, and some of the testimony of Hannaford, which establishes that before Peterson was hired, Stevens, Sr., required that Peter- son give his word that he would not initiate union activity on behalf of the Engi- neers, of which he was then a member, and the testimony of Hannaford inferentially establishes that he was consulted concerning the hiring of Peterson, and that he acquiesced in Peterson's hiring only after the president of the Paper Makers' local at Stockton, where Peterson was then employed, assured Hannaford that Peterson was a man of his word .9 The close working arrangement of the Company and the Union is further estab- lished by the high degree of coordination manifest in the sequence of events. Ac- cording to Stevens, as soon as he heard there was activity on behalf of the Engineers, he notified Sharp and they discussed the development in most serious vein. Sharp decided that he would notify Hannaford immediately so that Hannaford could come to Oxnard and "square away" the situation. Shortly thereafter, Wicklander told Stevens that Hannaford was coming to Oxnard, and within 24 hours Hannaford appeared on the scene, and immediately began efforts designed to discourage or prevent the shift engineers from bringing the Engineers into the plant. After con- ferring with company officials, Hannaford threatened the men with discharge, and offered them a raise in pay if they would continue to be members of the Paper Makers. Upon the men's refusal to be either intimidated or bribed, they were fired by the Company on the following morning. This final act is most significant. On Friday morning, Hannaford told the men the Company would raise their pay to $2 63 per hour, and devise a satisfactory shift, if they would stay in the Paper Makers. If they refused that proposition, they would be fired. They refused to abandon the Engineers, and on the following morning the Company discharged them. The promptness of the Company's ac- tion in fulfilling the Union's threat establishes that the Company had previously acquiesced to, and authorized, the Union to issue its ultimatum to the shift engi- neers, and that the discharge of the men was the final act in the company-union plan to deal with the men. I find, upon all the evidence, that the Company and the Paper Makers discharged the shift engineers in furtherance of a common plan and purpose, to keep all unions except the Paper Makers out of the Company's plant. By the discharge of the shift engineers, (1) the Paper Makers and the Company jointly preserved their mutually desired relationship; (2) the Paper Makers re- tained its exclusive, and unchallenged, bargaining position in the Company's plant, 0In Texas Independent Oil Company, Inc., 108 NLRB 617, enfd. 232 F. 2d 447 (C. A. 9), the Board ruled on a similar situation. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and punished the shift engineers for exercising the rights guaranteed them by Sec- tion 7 of the Act; and (3) the Company rid itself of four employees who wanted a raise in pay, better shift conditions, and a bargaining agent not wedded to the Company. Upon all the evidence, I find that the General Counsel has sustained by a prepon- derance of the evidence each and every allegation of unfair labor practice contained in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, to the extent that they have been found to constitute unfair labor practices, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, as defined in Section 2 (6) and (7) of the Act. V. THE REMEDY Since it has been found that the Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the contract between the Company and the Paper Makers, executed December 3, 1955, contained an illegal discriminatory provision, it will be recommended that the Company and the Paper Makers cease and desist from giving effect to the illegal provision in the future. Since it has been found that: (1) On January 19, 1957, the Company discrimi- nated against Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel in their hire, tenure, terms, and conditions of employment; (2) such conduct by the Company encouraged membership in the Paper Makers and in- terfered with, restrained, and coerced employees in the exercise of rights guaran- teed in Section 7 of the Act; and (3) the Paper Makers engaged in unfair labor practices by causing the employer to so discriminate, thereby restraining employees in the exercise of rights guaranteed by the Act, it will be recommended, therefore, that the Company offer to the four above-named employees, full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; and that the Paper Makers notify the Company, in writing, and furnish a copy of said notification to each of said employees, that it has withdrawn its objection to his employment as a shift engineer and oiler at the Company's paper mill at Port Hueneme, California, and request the Company to offer each of the above-named employees full and immediate reinstatement to his former or an equivalent position. Having found that the Paper Makers and the Company were jointly responsible for the discrimination in the hire and tenure of employment of the 4 above-named employees, it will be recommended that the Paper Makers and the Company, jointly and severally, make the said 4 employees whole for any loss of pay each may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from January 19, 1957, until his reinstatement as ordered above, less his net earn- ings during this period. The loss of earnings shall be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Company be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Paper Makers and its Local Union No. 670, AFL-CIO, and its successor United Paper Makers and Paper Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act, which ad- mits to membership employees of the Company. 2. Kalof Pulp & Paper Corp. is a California corporation, and is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. By executing and enforcing the contract provision requiring membership in the Paper Makers, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4 By discriminating in regard to the hire and tenure of employment of Charles L. Detrick, Ray W. Peterson, William T. Rogers, and Carroll W. Rothermel, there- SPEIDEL CORPORATION 733 by discouraging membership in a labor organization, the Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 5. By causing the Company to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Paper Makers has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaran teed in Section 7 of the Act, the Paper Makers has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Company has engaged in and is engaging 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. [Recommendations omitted from publication.] Speidel Corporation and Lodge 129 of District 64 International Association of Machinists, AFL-CIO. Case No. 1-CA-2104. May 1,1958 DECISION AND ORDER On January 31, 1957, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the intermediate Report, and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and supporting brief, and the entire record in the case, and adopts the Trial Examiner's findings and con- clusions only to the extent that they are consistent with the findings and conclusions set forth below.' The Respondent, a Rhode Island corporation, is engaged in the manufacture, sale, and distribution of jewelry and related products at its plant in Providence, Rhode Island. The Respondent employs approximately 675 employees at the Providence plant, of whom approximately 55, herein called the toolmakers or represented em- ployees, are represented by Lodge 129 of District 64, International Association of Machinists, AFL-CIO, herein called the Union.2 The remaining employees have been for many years, and are now, unor- ganized and unrepresented by any labor organization. 1 The Respondent's request for oral argument is hereby denied as the record, the ex- ceptions, and the brief, in our opinion, adequately present the issues and positions of the parties. 2 Included in this group are all skilled employees and employees classified as toolmakers- 120 NLRB No. 97.