Lloyd A. Fry Roofing Co.

LLOYD A. FRY ROOFING COMPANY 647 As we find no merit in the exceptions, we shall certify the Peti- tioner as the representative of the Employer's employees. [The Board certified Warehouse and Distribution Workers Union, Local 688, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America as the collective-bargaining representative of all production and maintenance employees at the Employer's Kahlmayer Drive, St. Louis, Missouri, plant, excluding office clerical employees, guards, watchmen, professional employees and supervisors as defined in the Act.] Lloyd A. Fry Roofing Company and United Papermakers and Paperworkers, AFL-CIO. Cases Nos. 39-CA-622 and 39-CA-700. April 7, 1959 DECISION AND ORDER On April 8, 1958, Trial Examiner C. W. Whittemore 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Counsel and the Re- spondent filed exceptions to the Intermediate Report and supporting briefs.' 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.2 The Board has considered the In- i In its exceptions the Respondent excepted to the denial by the Trial Examiner of its requests to have the General Counsel produce certain written statements in his possession, of witnesses, at the time said witnesses testified. By its order of September 10, 1958, the Board sustained the exception and ordered that the General Counsel forthwith make available to the Respondent such pretrial written statements , or copies thereof, directly related to their testimony of witnesses who had testified for the General Counsel, provided that the Respondent within 10 days of the order designate to the General Counsel the names of the witnesses whose pretrial testimony they desired . This Board order also provided that within 5 days after these statements had been received the Respondent could move to reopen the record and have the case remanded to the Trial Examiner for the purpose of further examining any witnesses so designated . Upon request of the Respond- ent, such pretrial written statements were shown to counsel for the Respondent on September 18, 1958, with full opportunity for inspection. On September 29, 1958, the Respondent advised the Board that it had been shown the pertinent pretrial statements and did not desire to reopen the record. 2 The Respondent excepts to the rulings of the Trial Examiner denying its motions to sever Case No. 39-CA-700 from Case No. 39-CA-622, and its motions to dismiss and motions to strike dated December 9, 1957 , and renewed on February 12, 1958. In view of our disposition of Case No . 39-CA-700, we find it unnecessary to rule on these- exceptions. 123 NLRB No. 86. (648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :termediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : 1. We agree with the Trial Examiner that the Respondent violated .Section 8(a) (1) of the Act by threatening employees Sikes, Case, and Aspinwall with economic reprisals for engaging in concerted activities, and by rewarding employee Barlow for his support of the Respondent's antiunion campaign. We also find, in agreement with -the Trial Examiner, that the Respondent's notice to its employees threatening them with immediate discharge or disciplinary action for .failure to report their interviews with an agent of the Board or the fact of their having signed statements, or for failure to cooperate -fully with the Respondent's attorney in his investigation of the ;pending case, was violative of Section 8(a) (1) of the Act.' 2. We agree with the Trial Examiner that the evidence does not support a finding of a violation of Section 8 (a) (3) in the layoff of, and the subsequent failure to recall, employee Van Matre. We also find, in agreement with the Trial Examiner,. that the evidence is in- :Sufficient to find that the Respondent violated the Act by partially .shutting down the plant after the election and by discriminatorily .selecting antiunion employees to receive more working time than other employees. 3. We do not agree with the Trial Examiner that the Respondent violated Section 8(a) (5) of the Act, as alleged in the complaint in Case No. 39-CA-700. The agreement and stipulation of the parties, entered into on February 19, 1958, shows the following facts : After Board certification of the Charging Union, the Respondent, .and the Union commenced bargaining negotiations in March 1957. .Respondent was represented by its attorney, Abercrombie, and its .Houston, Texas, plant manager, Kennedy, who had authority to nego- tiate a tentative agreement subject to the approval by the executives ,of Respondent in Chicago, Illinois. Bargaining sessions were held ^on March 12 and 15, April 3, May 9, May 16, August 1, and September 4,1957. At these meetings both parties in a "give-and-take" approach attempted to reach a satisfactory settlement of their differences, and both parties retreated from some of their original demands and counterproposals. One of the Respondent's original demands was for a "no-strike or lockout" clause reading as follows : During the term of this agreement, there shall be no lock out on the part of the Company, and there shall be no strike, slow-down, 3 See Jackson Tile Manufacturing Company, 122 NLRB 764 , where the Board found questioning of an employee , following the latter's interview by a field examiner, as to statements 'he made to the field examiner , to be a violation of Section 8(a) (1). LLOYD A. FRY ROOFING COMPANY 649 picketing, or other curtailment or interference with production, or other work in or incidental to Company's business by Union, its members, or any employee. [Emphasis supplied.] The Union objected to the scope of this clause contending that it imposed a liability on the Union for wild cat strikes of employees who were not its members and who could not be subjected to the Union's discipline because of the Texas "Right to Work Law." The matter of this "no-strike" clause was then made the subject of nego- tiations at the bargaining sessions of March 15, April 5, May 9, and August 1, 1958. On September 4, 1957, a tentative agreement was reached by the negotiators in which the "no-strike" clause appeared with the words : "or any employee" deleted. On September 16, a draft of the contract prepared by attorney Abercrombie was sent to the Union and to Respondent's executives in Chicago, for approval. On request of the Respondent the negotiators met again on October 9, 1957. At that meeting attorney Abercrombie informed the union negotiators that the Respondent's executives would sign the contract only if the "no-strike" clause contained the words "or any employee" and if the contract term, tentatively agreed upon to run for 1 year, were limited on the expiration of the certification year, then about 3 or 4 months away. The reason given for the latter limitation was the agreed fact that more than 50 percent of the employees had signed a petition requesting decertification of the Union. As the Union refused to accept these two amendments the contract was not signed by the Respondent and no further bargaining took place. Contrary to the Trial Examiner, we find that the insistence of the Respondent on a "no-strike" clause binding all employees in the bar- gaining unit does not constitute a per se violation of Section 8(a) (5),. and that it is not evidence that the Respondent bargained in bad faith. "No-strike" clauses have long been held to be a proper subject for col- lective bargaining by the Board as well as by the courts.4 The "no- strike" clause insisted upon by the Respondent is one that is cus- tomarily found in many labor agreements and has been found lawful by the Board.5 Such clause binds every employee in the unit repre- sented by the Union to desist from striking during the term of the contract. It makes every employee subject to discharge or other disciplinary action for striking in violation of this clause. On its face, it does not, as the Trial Examiner concluded, make the Union liable financially or otherwise for employee actions not authorized or ratified by the Union. I N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342; N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 408, at footnote 22; Bethlehem Steel Company, 89 NLRB 341, .345. 5 Shell Oil Company, Incorporated et al., 77 NLRB 1306. '650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Trial Examiner, we also are not persuaded that the Respondent's insistence upon a contract term limited to the end of the certification year, violated Section 8 (a) (5) of the Act. The Board has long held that the term of a contract, like its substantive provi- sions, is a bargainable matter. Only if it is insisted upon in bad faith or to achieve an illegal purpose, is insistence on a specific contract term a violation of the parties' bargaining obligation . A well-founded doubt that the Union is the majority representative of the employees, based on a decertification petition supported by the majority of the employees, is a legitimate reason for permitting bargaining on the part of the employer for a contract not to exceed the certification year .6 We do not agree with the Trial Examiner that this legitimate reason for insisting on a limited duration of the contract was dispelled by the Respondent's threat to Aspinwall or by the threatening notice to its .,employees demanding their cooperation in the investigation of the -charges in Case No . 39-CA-622. Accordingly, we shall dismiss the complaint in Case No. 39-CA-700. 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 Respondent Lloyd A. Fry Roofing Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Threatening employees with economic reprisals if they engage in union or concerted activities , or if they fail to report any interview they may have had with agents of the National Labor Relations Board. (b) Informing employees that the Respondent will not bargain with a labor organization of their choice. (c) Rewarding or promising benefits to employees if they forego the exercise of rights guaranteed to them in Section 7 of the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations , to join or assist United Papermakers and Paperworkers, AFL-CIO , or any other labor organization, to bargain .collectively through representatives of their own choosing, and to en- gage in any 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. 6 The Hinde & Dauch Paper Company, 104 NLRB 847. LLOYD A. FRY ROOFING COMPANY 651 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Post at its plant in Houston, Texas, copies of the notice attached hereto marked "Appendix." 7 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representatives, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps they have taken to comply herewith. IT Is FURTHER ORDERED that the complaint in Case No. 39-CA-622 be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act by the layoff, and failure to recall, of employee Mack Van Matre, and Section 8 (a) (1) of the Act by placing its plant on short time and by discriminatory selection of non- union employees to receive more work than others. IT IS FURTHER ORDERED that the complaint in Case No. 39-CA-700 be, and it hereby is, dismissed in its entirety. MEMBER RODGERS took no part in the consideration of the above De- cision and Order. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, 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." APPENDIX 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 threaten employees with economic reprisals if they engage in union or concerted activities, or if they fail to report any interview they may have had with agents of the Na- tional Labor Relations Board. WE WILL NOT inform employees that we will not bargain with a labor organization of their choice. WE WILL NOT reward or promise benefits to employees if they forego the exercise of rights guaranteed to them by Section 7 of the Act. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist United Papermakers and Paperworkers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, 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. LLOYD A. FRY ROOFING COMPANY, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served in Case No. 39-CA-622, a complaint, amended complaint, and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and amended answers having been filed by the above-named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), was held in Houston, Texas, on November 5, 6, 7, and 8, 1957, before the duly designated Trial Examiner. Subsequent .to the said hearing, and following the filing and service of a charge in Case No. 39-CA-700, the General' Counsel issued a complaint alleging violation by the same Respondent of Section 8(a) (5) of the Act.' The same Trial Examiner was designated by the Chief Trial Examiner to serve in the latter entitled case. On January 24, 1958, the said Trial Examiner granted a motion by the Regional Director, Sixteenth Region, to reopen the record in Case No. 39-CA-622 for the purpose of consolidating the two cases. On January 28, 1958, the said Regional Director issued an order consolidating cases and a notice of hearing. On February 19, 21, and 19, 1958, respectively, counsel for the Respondent, the Charging Party and General Counsel signed and entered into a written agreement and stipulation containing, among other things, a statement of fact relating to the 8(a)(5) allegations, and a waiver of further hearing before the Trial Examiner. Said agreement and stipulation, and all documents attached thereto and referred to therein, are hereby received in evidence in said consolidated cases. The Respond- ent's objection, set forth in section III, page 5, of said agreement and stipulation, reading: Respondent objects to consideration of such facts as hereinafter stipulated and to testimony and evidence introduced in the trial of Case No. 39-CA-622, which occurred prior to May 25, 1957, in the determination of whether Respond- ent violated Section 8(a)(5) of the Act, as being barred by limitations under Section 10(b) of the National Labor Relations Act; and to all testimony and evidence introduced in the trial of Case No. 39-CA-622, as being irrelevant and immaterial to any determination of whether Respondent violated the provisions of Section 8(a)(5) of the Act. 'Similar allegations of violation of Section 8(a) (5), in the amended complaint of Case No. 39-CA-622, were withdrawn by the General Counsel at the hearing on Novem- ber 5, 1957. LLOYD A. FRY ROOFING COMPANY 653 is hereby overruled. The Respondent's motion to dismiss and motion to strike, dated December 9, 1957, renewed on February 12, 1958 (both documents being included in said stipulation and identified as General Counsel's Exhibits Nos. 17b and 19b, respectively), are hereby denied. By wire to the parties on February 28, 1958, the Trial Examiner acknowledged receipt of the said stipulation and ordered the close of the hearing in the consolidated cases. Thereafter briefs were received from counsel for the Respondent and counsel for the Charging Party. From his observation of the witnesses, and upon the entire record in the consoli- dated cases, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Lloyd A. Fry Roofing Company is a Delaware corporation, having its principal office and place of business in Chicago, Ilinois, where it is engaged in the manufacture, sale, and distribution of roofing materials and related products. It operates some 18 plants located in 16 different States of the United States, including a plant located in Houston, Texas, the 1 plant involved in these proceedings. At its Houston plant, during the 12-month period prior to the issuance of the complaint in Case No. 39-CA-622, the Respondent caused materials valued at more than $5,000,000 to be purchased and transported in interstate commerce. During the same period the Respondent caused roofing materials valued at more than $5,000,000 to be manufactured and shipped in interstate commerce. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Papermakers and Paperworkers , AFL-CIO, is a labor organization ad- mitting to membership employees of the Respondent at its Houston plant. III. THE UNFAIR LABOR PRACTICES A. Major issues The major issues raised in the complaints all stem from the efforts begun in 1956 by the Respondent's Houston employees to be represented by a labor organization for collective-bargaining purposes. These efforts were successful, at least to the point of winning an election, despite open opposition on the part of the Employer, in December 1956, and of obtaining from the Board on February 7, 1957, certification for the labor organization chosen by the employees. In general, it is contended by the General Counsel that both before and after the election the Respondent, through its agents and representatives, engaged in various acts of interference, restraint, and coercion, violative of Section 8(a) (1) of the Act, including threats of reprisal, unlawful interrogation, and discriminatorily rewarding nonunion employees by giving them overtime work. The one violation of Section 8(a) (3) claimed in the complaint involves employee Mack Van Matre, his admitted layoff in October 1956, and a disputed question of fact as to whether or not he was thereafter refused reinstatement. The General Counsel's claim that after the Board certification the Respondent refused to bargain with the Charging Party, in violation of Section 8(a)(5) of the Act, appears from the complaint to be urged on two grounds: (1) certain acts of restraint and coercion which, according to the General Counsel, establish that the Respondent refused to deal with the certified labor organization as the exclusive representative of its empiloyees; and (2) bad-faith bargaining during the course of actual negotiations. B. The layoff of Van Matre Until his layoff on October 6, 1956, Mack Van Matte had been an employee of the Respondent for about 3 years. During most of this period, and until about 3 months before his layoff, Van Matre had been working as "beater foreman" under Superintendent G. C. Sterling, at which time he was apparently demoted to truck- driver, the position he held at the time of layoff. The transfer to the latter job resulted in a 10-cent per hour reduction in pay. The record contains a good deal of testimony regarding Van Matre's difficulties with his immediate supervisor while a "beater foreman." Since the General Counsel makes no claim, however, that the employee's transfer to truckdriving was in violation of the Act, it appears unneces- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sary to becloud actual issues by relating the full history of his employment. From the credible testimony of both Van Matre and Sterling the Trial Examiner infers. and finds that Van Matre was transferred to the truckdriving job because he had. proven unsatisfactory in the beater department. In August 1956, after becoming a truckdriver , Van Matre signed an authorization card for International Brotherhood of Paper Makers, AFL, predecessor as herein- after noted of the Charging Union. According to Superintendent Sterling's own. testimony he heard "rumors" that Van Matre was a "ring leader" in the efforts to organize, and about 2 weeks before the October layoff told him, "They say you are ring leader of this union." Van Matre gave him a noncommittal answer, and. according to the employee's credible testimony the superintendent then told him that the Company "had never recognized a union" and there would never "be a union in that place." 2 A week or so later, Sterling warned the employee about talking to employees on the line when he went around to collect trash. • On October 6 Sterling laid off Van Matre and two other employees, R. J. Fleming. and William L. McVay. The superintendent informed Van Matre that the layoffs were necessary because of a slack period in the work. In November, Van Matre returned to the plant but was told by Sterling that no. work was yet available. In January, Van Matre went again to the plant office. At his request the switchboard operator communicated with Sterling and reported that the superintendent was too busy to see him at that time. It appears that this was, the last time Van Matre reported to the plant. He has not been recalled. Of the other two employees also laid off on October 6, Fleming was returned to work on November 5, 1956, and McVay, according to company records in evidence, had not been reinstated up to the time of the hearing. The General Counsel asks that it be found that both the layoff and the failure to reinstate were in violation of Section 8(a) (3 ), in that the action, or lack of action, was discriminatory and to discourage membership in the Union . In the opinion of the Trial Examiner, the General Counsel has clearly established but one factor essential to the conclusion sought: that of company knowledge or belief that Van Matre was active in the labor organization. This fact, which is plainly supported by Sterling's own testimony, undoubtedly creates a reasonable suspicion , particularly if viewed in the light of antiunion conduct hereinafer described, that if Van Matre was actually discriminated against, the purpose of such discrimination was to dis- courage union membership and activity. In the opinion of the Trial Examiner, however, the General Counsel has failed' to sustain by the preponderance of evidence the allegation that Van Matre was discriminated against , either at the time of the layoff or when seeking reemployment. First, as to the layoff. The General Counsel himself established, by placing in evidence the employee's card, that at the time of the October layoff Fleming had also signed a union authorization. And Fleming was recalled , according to the company records, early in November. As to McVay, the third employee to be laid off on October 6, there is no evidence as to whether or not at the time he was a union adherent . No evidence was adduced by the General Counsel to rebut the testimony of Sterling that the layoff was occasioned, as he had told Van Matre. at the time, by economic necessity . It does not appear that such layoffs-of a number of employees at one time-was unusual at this plant . On the contrary, the same company records introduced into evidence by the General Counsel show that in April 1956, 11 employees were laid off on the same day-and up to the time of the hearing had not been rehired. The General Counsel also failed to meet, or successfully rebut, Sterling's testi- mony to the effect that in selecting employees for layoffs the usual practice of seniority was used in the case of Van Matre, Fleming, and McVay. While it is true that two employees, Bows and Fitch, were retained although having less seniority than Van Matre, Sterling's testimony is uncontradicted that these two employees were key men, while Van Matre was not, and that it was company prac- tice to retain key men under such circumstances. The Trial Examiner concludes and finds that credible evidence is insufficient to sustain a finding that the layoff of Van Matre on October 6, 1956, was in fact discriminatory. As to the failure to recall Van Matre: While it is true, as noted above, that when he sought work in November, Fleming had already been recalled, Sterling's testimony nevertheless is not refuted that Fleming was reemployed to fill a job that Van Matre 2 Sterling's version of his statement is : "Old man Fry didn't have a union in none of his mills as far as I know , and I don't see why be would want to start here." LLOYD A. FRY ROOFING COMPANY 655 was not qualified to fill . And according to the company records in evidence, this was the one job open from October 6 until January 21 , 1957, a date after Van Matre's last visit to the plant. The same records show that three employees were reemployed on January 21 and one on January 28 , all of whom had been laid off in July or September 1956, before Van Matre . To find, however, that Van Matre should have been rehired to one of these four jobs, in the opinion of the Trial Examiner it would be necessary that the' evidence established : ( 1) that Van Matre was qualified to fill any one of the four jobs, and (2) that the failure to rehire him was inconsistent with an existing policy of rehiring in order of seniority . The latter point is disposed of quickly . Fleming, although laid off after any one of the four, was recalled before any one of them. As to the first point , the evidence is insufficient to establish whether or not Van Matre could have qualified for any one of the jobs open in January 1957. In summary, the Trial Examiner concludes and finds that the credible evidence in the record is insufficient to sustain the allegations of the complaint as to Van: Matre. C. Interference, restraint, and coercion 1. Incidents before the election Early in the hearing the General Counsel put in evidence a number of documents which had been mailed by the Respondent to its Houston employees , or posted by it for their attention , all such documents having been distributed or posted during a period from September to December 12, 1956, the date of the Board-conducted election. None of these documents is alleged in the complaint to be violative of the Act. When queried by the Trial Examiner concerning his contentions as to them, at the time of their being offered , the General Counsel said: I am not sure that they have exceeded Section 8(c), but before the hearing is over I will certainly advise the Examiner if I think they have. The Trial Examiner has received no further advice on the subject . Without re- viewing their contents in detail here , however, the Trial Examiner is convinced, and finds, that they fully support the claim of counsel for the Charging Party that they establish beyond doubt the Employer 's "anti-union motivation." Indeed, during the hearing counsel for the Respondent candidly admitted: We will concede the point we don't want unions in our plant here. According to the testimony of John J. Kennedy, plant manager, shortly after he was confronted on August 29, 1956, with a demand for recognition by a union representative, he communicated the fact to a vice president of the Respondent at its Chicago headquarters . This official turned the matter over to one McInerney, who at that time was assuming responsibility for the Respondent's labor relations. Thereafter, as Kennedy admitted, he and McInerney cooperated in conducting "the campaign to defeat the union ." McInerney furnished the material , Kennedy saw to it that it reached the employees . Since the General Counsel does not urge that its distribution was violative of the Act, the Trial Examiner makes no finding on the point . Its nature in general, however, was vigorous, scathing , and presumably highly insulting to employees who believed sincerely in the dignity of self-organization as protected by the Act. Kennedy did not confine his campaign to distributing the anti-union documentary material and the making of antiunion speeches . He also summoned to his office at least 14 employees, according to his own testimony , and there lectured and threatened them. For example a few days before the election he called employee W. S. Sikes to his office and, among other things, told Sikes that the company "wouldn't sign a contract," and warned him that if the employees struck in order to force the signing of a contract they "would lose" their jobs.3 At about the same time Kennedy also ordered employee W. L. Case to his office, reminded him that he had three children, and then told him that although he was then keeping the men on 40 hours a week, "if this thing goes through we will 8 The finding as to this interview rests upon Sikes' credible testimony. Kennedy's denials are not credited . The plant manager was not only unconvincing as a witness, but his demeanor at the hearing while not a witness displayed arrogance and a firm resolution to have his own way . As the record shows, just before the hearing opened he approached four of the General Counsel's witnesses in the courtroom corridor and de- manded to know , according to his own testimony, if they "had asked permission to get time off to attend the hearing." Again, also as the record shows, he Interrupted a witness, calling out : " Speak up, Case, I can 't hear you back here." 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probably be cut back to 24 to 32 hours." As found below, Kennedy's threat to reduce hours was not a mere gesture. It was a threat fully effectuated within an hour after the Union won the election. According to Kennedy's own testimony, he called in and interviewed about 14 employees along "similar lines" as in the cases of Sikes and Case. Another plant official followed Kennedy's suit, and implemented the antiunion policy plainly set out by the top management. Just before the election Plant Super- intendent K. L. Spalding approached employee Sikes and warned him to think of his wife and children when he went to vote. The Trial Examiner concludes and finds that the above-described threats by Kennedy and Spalding were coercive and violative of Section 8(a)(1) of the Act. 2. Reduction of hours after the election The election polls closed at 2 p.m. on December 12. As noted, the Union won a majority of the votes. At 3 p.m. Kennedy posted a notice closing the plant for the remainder of that week. Thereafter, for a period of several weeks, the majority of employees in both mills of the plant were provided with but 24 to 32 hours of work instead of the customary 40 or 48. There is no allegation in the complaint to the effect that the sudden reduction in hours and the maintenance of short time was discriminatory within the meaning of Section 8(a)(3) of the Act, or coercive within the meaning of Section 8(a)(i) of the Act. On the final day of the hearing, General Counsel said, as to this point: The Board [General Counsel] is not seeking to show there was a discriminatory lockout of these men so much as we are trying to show that a situation de- veloped there and we did make considerable investigation and had wonderful cooperation from Mr. Abercrombie in making it, that there was cause of them to be down, but the thing we are complaining about is that they took advantage of it and made it look like they was rubbing the Union's nose in the dirt on account of it. Counsel for the Charging Party, however, made it clear that he was contending that in its action the Respondent had discriminated against union employees and that such employees were entitled to back pay as a part of an 8(a) (1) remedy. The Trial Examiner then observed that paragraph 11(c) of the complaint alleged "rewarding and promising benefits to nonunion employees and giving them more work" and added: I understood that that was your claim, that certain non-union individuals were given more work than union members. . . . That would, I suppose, entail a remedy in the event it were found as a fact, because your claim is that at least the assignment of work should have been equal under the Woolworth decision. The General Counsel then said, "Correct. . . . We didn't get a fair shake." Having previously placed in evidence the names of employees who had signed union authorization cards, just before the close of the hearing the General Counsel introduced several documents from the employer's records, purporting to show the precise number of hours worked by all employees in both mills of the plant during a period of several weeks. Upon receipt of these documents in evidence, the Trial Examiner stated: I would like to make a specific request, Mr. Whittaker, for whatever benefit it is to you: to state I would appreciate a brief from you in view of the rather complicated documents which have been put in at the closing of the hearing. And in your brief, I would appreciate it very much your setting out specifically what your position is as to which individuals have been discriminated against and the extent to which those specific individuals have been discriminated against in the matter of work. . As I understand, the majority of proof is here in these documents, according to your claim. The General Counsel replied in the affirmative, and the Trial Examiner added: And since I have [had] no opportunity to go through them, I will appreciate having the benefit of your analysis. No brief and no analysis has been received from General Counsel. It appears that two issues confront the Trial Examiner: (1) the claim of the Charging Party that the shutdown and short time were discriminatory and violative of the Act; and (2) the claim of the General Counsel that there was discrimination in the selection of individuals to receive more time than others. Issue (1), in the opinion of the Trial Examiner, requires little comment. Since the General Counsel specifically disclaimed the contention made by the Charging LLOYD A. FRY ROOFING COMPANY 657 Party, and counsel for the Respondent accepted such disclaimer on the record, the Trial Examiner believes that it would be improper for him to pass upon the merit of the Charging Party's claim. As to the second issue, the failure of the General Counsel to provide the analysis requested leaves the Trial Examiner without any clear guide as to what specific findings the General Counsel is seeking. The Trial Examiner is neither an account- ant nor an economic analyst. He has spent several hours in analyzing the records placed in evidence and has come to the conclusion that while there is evidence that discrimination in the selection of employees was probable, it is insufficient to estab- lish with reasonable certainty any specific employee as having been discriminated against. Under the circumstances, therefore, the Trial Examiner makes no finding on this point. There is, on the other hand, undisputed testimony that one employee, L. C. Bar- low, was permitted to work the remainder of the week of the election under circum- stances within the allegations of the complaint relating to the "rewarding" of non- union employees. It is uncontradicted that before the election Barlow had informed both his foreman, Schoubroek, and Superintendent Spalding that he was against the Union. On the day of the election, and shortly,after the notice closing the plant had been posted, Schoubroek came from Spalding's office and told Barlow to come in to work the next day, but "not to say too much about it." Barlow was permitted to work, and according to the records did work, the final 2 days of the week, while all others in his department except supervisors did not work. During the following week, that ending on December 23, Barlow was also permitted to work while others were not. On December 26, however, Barlow joined the Union, and let the fact become known to an employee who informed Foreman Schoubroek. Schoubroek then came to Barlow and challenged him, "I understand that you have changed your mind and are going to join the Union." Barlow admitted it. Later the same after- noon Spalding came to him and said, "I heard you changed your mind." Barlow said "yes," and thereafter worked a short time as did the others. On the basis of Barlow's uncontradicted testimony the Trial Examiner concludes and finds that the employee during the period that management believed he was nonunion was rewarded by being given more work than other employees, and that such reward was withdrawn as soon as Spalding learned of his change of mind. Barlow's testimony also establishes that this discriminatory treatment in his favor became known to other employees. By thus giving economic benefits to a known nonunion employee, the Respondent interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed by the Act. 3. Incidents after the election Following the election the Respondent's antipathy toward the Union was exhibited in at least two major incidents claimed to be violative of the Act. One occured in June or July 1957 and concerned employee J. W. Aspinwall, who had previously been employed at the Respondent's Jacksonville plant. He was called to Superintendent Mathews' office and was accused by this official of writing to Jacksonville employees about the Union at the Houston plant. Aspinwall explained that he had merely answered an inquiry sent to him by a friend at the Jacksonville plant, and had also forwarded the proposed contract then being negotiated at Hous- ton. Mathews then warned Aspinwall, according to the latter's credible testimony, that "he'd hate to see me get hung," and that he had "better watch what I put in my letters." The second occurred when Kennedy had posted, early in October 1957, a notice to all employees containing, in part, the following text: Agents of the National Labor Relations Board office here in Houston has [sic] talked with a number of you about the charges filed by the Papermakers. Some of you have also signed statements for the National Labor Relations Board about such charges. If you have talked with a Board agent or signed a statement for the Board, plea^e give your name to your superintendent before the close of work on Thursday, October 10th. Our attorneys want to inter- view any employees who talked with a Board agent or signed a statement for the Board. They will want to know what you said to the Board agent and your knowledge of any of the unfair acts alleged to have been committed by Fry. We expect you to cooperate fully with them. [Emphasis in original.] I assure you that you will not be subject to discrimination of disciplinary action because you talked with a Board agent or signed a statement for the Board. However failure to report an interview with an agent of the National Labor Relations Board of the fact that you signed a statement, or to cooperate 508889-60-vol. 123- 143 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully with our attorneys in their investigation of this case will subject you to immediate discharge or disciplinary action. Their jobs having been threatened if they did not comply with the above order, many of the General Counsel's witnesses reported to management and the Respondent's attorneys on interviews by Board agents. That this threat by Kennedy was flagrantly coercive needs scant discussion. Congress specifically gave certain rights to employees, and established a special agency to protect them from unfair labor practices on the part of employers. To thus threaten with discharge employees who did not divulge the fact or the nature of any interview by a Board agent was plainly restrictive of rights both explicit and implicit in Section 7 of the Act. It is significant that as soon as Board agents in Houston called the Respondent on this conduct, such interviews ceased. It is concluded and found that the above-described threats of Mathews and Kennedy were coercive and violative of the Act.4 D. The refusal to bargain The complaint (in Case No. 39-CA-700) alleges, and in conformity with Board findings in Case No. 39-RC-1085 5 the Trial Examiner concludes and finds that: At all times since December 12, 1956, the Charging Party has been the exclusive representative of all employees in the appropriate unit described below for the purposes of collective bargaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment. The appropriate unit is: All production and maintenance employees at the Respondent's Houston plant, including plant clerical employees, tour bosses, and foremen, but excluding office clerical employees, truckdrivers, guards, watchmen, cleanup men, the sampleman, and supervisors as defined in the Act. The following account of contract negotiations is composed of quotations from the "statement of facts" contained in the above-described stipulation of all parties. (1) Local representatives of Respondent, including Respondent's attorney, John B. Abercrombie, and its Houston, Texas, plant manager, J. J. Kennedy, met and negotiated with the Union's predecessor, International Brotherhood of Papermakers, AFL-CIO, and with the Union on March 12 and 15, April 3, and October 9, 1957. At such meetings, both parties, in a "give-and-take" approach, attempted to reach a satisfactory settlement of their differences. Such attempt is represented by the Union's retreat from some of its contract demands, and by Respondent's retreat from some of its original contract demands. (2) Tentative agreement was reached by the negotiators for the Respondent and the Union in the negotiation meeting held on September 4, 1957. Therafter, such tentative agreement was placed in written form by John B. Abercrombie, attorney and chief negotiator for Respondent, and submitted by letter to the Union for ratification by its membership and to the executives of Respondent in Chicago, Illinois, for their consideration and approval. Respondent's negotiators did not have authority to approve the tentative agreement. (3) Under letter dated September 26, 1957, Gaile Dozier, International Repre- sentative of the Union, returned a signed original and three copies of the tentative agreement. Respondent did not execute such agreement, but by letter dated October 1, 1957, addressed to Mr. Gaile Dozier, requested an additional meeting with the Union. Such meeting was held on October 9, 1957. (4) At the meeting between negotiators for Respondent and Union on October 9, 1957, the following statements were made: a. John B. Abercrombie opened discussion by stating that it had been clearly understood by both Respondent and Union that final acceptance of any labor con- tract agreed upon by the bargaining representatives of the parties was dependent 4 The record contains evidence as to a number of other incidents, claimed by the General Counsel to be violative of the Act, and involving minor supervisors. In view of the above-described violations by those whose supervisory capacity is not questioned, it appears unnecessary to burden this report by describing these other events. With specific reference to one Clifford Jeffcoat who, the complaint alleges, is an agent of the Respondent and (1) served as a spy for the Respondent and (2) with the Respondent's encouragement circulated a decertification petition in the fall of 1957, the Trial Examiner concludes and finds that the credible evidence in the record is insufficient to sustain such allegations. The testimony as to his being a spy, even if credited, relates to 'an incident in 1955, and the testimony as to company participation in circulating the petition is largely hearsay. 5 Including the Board's Decision and Direction of Election of November 14, 1956, Supplemental Decision and Certification of Representatives of February 7, 1957, and Order Amending Certification of Representatives of July 10, 1957. LLOYD A. FRY ROOFING COMPANY 659 upon ratification of such contract by union members who were employees of Respondent and approval of the contract by Respondent's officers in Chicago. Mr. Abercrombie then stated that Respondent's officers had approved the tentative labor contract in the form submitted with the exception of two items. The first item which Respondent did not approve, according to Mr. Abercrombie, was the no- strike or lockout clause in the form tentatively agreed upon. Respondent required that such clause be in the form submitted in Respondent's original counterproposal to Union, that is, binding upon Union, its members and Respondent's employees. b. Mr. Gaile Dozier replied that his Union could not accept a no-strike clause in the form proposed for the reason that the Union had no control over employees who were not its members and it would not be bound by their acts. c. Mr. Abercrombie then told Mr. Dozier that he was not in a position to nego- tiate further on this item since his instructions from Chicago were to insist upon inclusion of the term "employees" in the no-strike clause, and Mr. Abercrombie had no choice but to do so. d. Mr. Abercrombie then told Mr. Dozier that after the contract proposal had been submitted to Union, Respondent had received information that at least 70 percent of Respondent's employees had signad a decertification petition for filing with the National Labor Relations Board. Mr. Abercrombie stated that this information was submitted by Mr. John J. Kennedy to Respondent's Chicago office, and as a result Respondent instructed Mr. Abercrombie to insist that any contract between Respondent and Union terminate at the end of the certification year, that is, on February 7, 1958. e. At the conclusion of the meeting, Mr. Dozier stated that he was not in a position to sign a contract with a no-strike clause in the form proposed by Respond- ent and in any event he would not sign a contract which would be effective only to the end of the certification year. f. The meeting of October 9, 1957, then ended. There have been no further negotiations between the parties. General Counsel's complaint alleges no specific factors as establishing a refusal to bargain. He filed no brief, and the brief from the Charging Party does not cover the subject. It appears to the Trial Examiner, however, as it does to counsel for the Respondent in his brief, that so far as negotiations themselves are concerned, General Counsel relies upon two items to support his general allegation: the Re- spondent's adamant insistence on October 9, that any contract include: (1) pro- vision that the Union bind itself as being responsible for any strike by employees, whether union members or not; and (2) provision that the contract be terminated on February 7, 1958. As to item (1) : In the opinion of the Trial Examiner the allegation of refusal to bargain is fully sustained by this single mandatory provision. That it was manda- tory is made clear by the quotation from the stipulation to the effect that Counsel Abercrombie was prohibited by his client even to negotiate further on the point. The situation, arbitrarily created by the Respondent's officers in Chicago, was one for which no attorney of repute-and the Trial Examiner has the highest regard for the integrity of Counsel Abercrombie-would knowingly assume responsibility. For the requirement insisted upon violated the first principles of contract law. It would have forced the Union to be responsible for acts of individuals over which, by terms of the same contract, it had been deprived of any control.6 Furthermore, the Trial Examiner is convinced and finds that the Respondent's last-minute insistence upon so limited a contract period was of a pattern with the no-strike provision, and because of the circumstances must be considered to be a factor establishing bad-faith bargaining. The excuse of the existence of a decerti- fication petition is without merit, in view of the above finding that on about the same day the Respondent thrust this final demand upon the union management was engaging in unfair labor practices, threatening employees with discharge for exer- cising rights under the Act. In summary, the Trial Examiner, having appraised the Respondent's adamant stand on October 9, 1957, in the context of its previous unfair labor practices, including the statements to employees of management officials that the Respondent would not sign a contract with the Union, now concludes and finds that the Respondent on October 9, 1957, and since that date, has refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act, and by such refusal has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. Article II bound the Union not to "threaten, intimidate or coerce any employee because he is . . . a' non-member of Union." 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent, set forth in section III, above, occur- ring in connection with the operations of the Respondent 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 Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively as required by the Act with the chosen representative of its employees. It will there- fore be recommended that it bargain collectively and in good faith, upon request, with the Union as the exclusive representative of its employees in the appropriate unit. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is reasonably to be anticipated from its past conduct, the pre- ventive purposes of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. 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. United Papermakers and Paperworkers, AFL-CIO, is a labor organization -within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at the Respondent's Houston plant, including plant clerical employees, tour bosses, and foremen, but excluding office .clerical employees, truckdrivers, guards, the watchmen, cleanup men, the sample- -man, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. United Papermakers and Paperworkers, AFL-CIO, was on December 12, 1956, and at all times since then has been, the exclusive representative of all em- ployees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after October 9, 1957, to bargain collectively with the aforesaid Union as the exclusive bargaining representaitve of all employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is ,engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- jnerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] Pease Oil Company ; Evans Oils, Inc. and Local 449, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 3-CA-1091. April 7, 1959 SUPPLEMENTAL DECISION AND ORDER On January 16, 1959, Trial Examiner Herbert Silberman issued his Supplemental Intermediate Report in the .above-entitled proceeding, 123 NLRB \,o. 82.