Chambers Manufacturing Corp.

CHAMBERS MANUFACTURING CORPORATION 721 sters did not receive a majority of the votes cast in voting group (1) and that Laundry Workers did receive a majority in the pool voting groups, we shall certify the results of the election in voting group (1) and shall certify Laundry Workers as the exclusive bargaining repre- sentative of the employees in the combined voting groups, which we find in the circumstances to constitute an appropriate unit for the purposes of collective bargaining. [The Board certified that a majority of valid ballots in voting group (1) was not cast for Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 891, and that this labor organization is not the exclusive bargaining representative of employees of Independent Linen Service Company of Mississippi.] [The Board certified Laundry, Cleaning & Linen Workers Inter- national Union, Local No. 218, Independent, as the collective-bargain- ing representative of the employees of Independent Linen Service Company of Mississippi in the pooled voting groups, found herein to be an appropriate unit.] Chambers Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Case No. 32-CA-599. August 06, 1959 DECISION AND ORDER On January 9, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report finding that the Respondent had engaged in certain unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act, and recommending that the Respondent cease and desist there- from 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.' Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : 1. The Respondent contends that it was denied a fair hearing by rea- son of certain pretrial rulings of a Trial Examiner, and that the com- 1 As the record , exceptions , and brief adequately present the issues and positions of the parties herein, the Respondent ' s request for oral argument is hereby denied. 124 NLRB No. 94. 525543-60-vol. 124-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint therefore should be dismissed. Specifically, it maintains that the Trial Examiner erred (1) in denying its motion for a more definite statement of certain allegations of the complaint upon which the Gen- eral Counsel predicated his charges of Section 8 (a) (1) violations of the Act; (2) in denying its motion for the pretrial production of cer- tain statements for inspection and copying; and (3) in revoking subpoenas deices teemn which were served on the Regional Director for the Fifteenth Region and Field Examiner Burks requiring them to produce all statements of certain named individuals, employees, and former employees of the Respondent relating to the facts alleged in the complaint. In addition the Respondent cites the failure of the Regional Director to respond to written interrogatories filed with him. These contentions are without merit. As to (1), we find that the coin- plaint sufficiently informed the Respondent of the Section 8(a) (1) allegations and the issues which would be considered at the hearing? As to the remaining contentions, it is clear that the Act does not au- thorize procedures in the nature of pretrial discoveries of evidence 3 For the foregoing reasons, we find that the Trial Examiner properly denied the Respondent's motion to dismiss the complaint predicated upon its alleged denial of a fair hearing. The Respondent also excepts to the Trial Examiner's refusal to strike the testimony of the General Counsel's witnesses, Emerson F. Miller and Edward Earl Moorehead, because of the alleged failure of the General Counsel to produce a longhand statement of Miller, and an "authenticated'' statement of Moorehead. These requests were made pursuant to Section 102.95 of Board Rules and Regulations, Series 7, as amended. This section provides in substance, as an excep- tion to the general prohibition against Board personnel testifying or producing Board records before courts or administrative bodies, that statements of witnesses who have testified for the General Counsel in hearings on complaints under Section 10(c) of the Act must be pro- duced on demand of the Respondent if such statement has been re- duced to writing and signed or otherwise approved or adopted by the witness. The section further provides that the Respondent's motion to that effect must be granted by the Trial Examiner and the testimony of the witness stricken if the General Counsel declines to furnish the statement. We find no error in the Trial Examiner's ruling. It ap- pears that Miller's statement was one that was taken in longhand by Field Examiner Burks and in that form was signed or initialed by Miller. At the hearing, the General Counsel stated for the record that he had produced all of Miller's statements in his possession. Three typewritten statements were produced-one signed by Miller on Octo- 2Lloyd A. Fry Roofing Company v. N.L.R.B., 222 F. 2d 938, 940 (C.A. 1). 3N.L.R.B. v. Globe Wireless, Ltd., 193 F. 2d 748, 751 (C.A. 9) ; Miami Coca-Cola Bottling Company, 108 NLRB 456 , footnote 2; Del E. Webb Construction Company, 95 NLRB 377, footnote 2. CHAMBERS MANUFACTURING CORPORATION 723 her 2, 1957, and two others signed by him on November 19, 1957. Miller further testified that the October 2 statement which he gave to Field Examiner Burks conformed in all respects with the longhand statement prepared by Burks and with the notes in Miller's possession. As to Moorehead's statement, the record shows that Moorehead was unable to identify the statement bearing his signature as the one taken down in his presence by Burks, and was unable to remember whether he had sworn to the truth of the matters contained in the affidavit. However, Moorehead did not dispute the genuineness of his signature, nor question the accuracy of the contents of the affidavit. In these circumstances, we find that the General Counsel produced all docu- ments which he had in his possession and which he was required to, produce under the rules.4 The Respondent excepts to the Trial Examiner's ruling on the General Counsel's objections which prevented the Respondent from- questioning witnesses of the General Counsel about conversations with Field Examiner Burks occurring before the witnesses signed their formal affidavits. The Respondent contends that the purpose of such questioning was to show that inconsistencies existed between the wit- nesses' oral communications and their signed statements, and thus to impeach the witnesses. Although the Respondent generally offered to show that inconsistent statements were in fact made, the Respond- ent does not disclose the nature of the alleged inconsistencies. Fur- thermore, the record indicates that the Respondent was permitted by the Trial Examiner to ask, and in the case of Thweatt did ask, the wit- nesses whether their formal statements contained the substance of all. conversations with the Field Examiner concerning matters to which the witness had previously testified. As indicated above, the wit- nesses' formal statements were available to the Respondent for the purpose of cross-examination. In such circumstances, we find that the Trial Examiner's rulings were neither error, nor prejudicial. 2. The Trial Examiner found that the Respondent violated Section 8 (a) (5) and (1) of the Act by making unilateral changes in employ- ees' wages, hours, and job classifications without granting the Union an opportunity to negotiate with respect to such changes. We agree with the Trial Examiner that the Respondent unlawfully made uni- lateral changes in wages and hours in violation of the Act. However, we do not agree that the record as it whole supports the allegation that 4 Furthermore, we find , contrary to the Respondent's contention, that it could not be prejudiced by the alleged failure to produce the longhand statement of Miller's as no unfair labor practice found herein rests on any testimony of Miller which is not con- firmed in substance by the testimony of the Respondent 's own witness Ryan. we also find without merit the Respondent 's contentions that it was denied an adequate opportunity to cross-examine the witness Thweatt because of the General Counsel 's failure to produce, pursuant to its demand , any memoranda prepared by Field Examiner Burks of conversations between him and the witness, Thweatt. We find that the Respondent was not entitled to the production of such memoranda and that the General Counsel produced all the documents lie was required to produce under the rules. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent also made unilateral changes in "job classifications" which were in violation of the Act. The complaint alleges that in the months of March, April, June, August, September, and October 1957 the Respondent made unilateral changes in wages, hours, and job classifications of the employees in the appropriate unit without prior consultation or bargaining with the Union. In its answer, the Respondent admits the factual allega- tions of the complaint but denies that the Respondent's conduct was unlawful. The General Counsel offered no independent evidence to support the above allegation of the complaint. The Respondent's witness, George P. Ryan, who also served as the Respondent's attorney and bargaining representative, testified that the Respondent granted a specific merit increase in November 1956 after the Union had been certified and another merit increase in March 1957. He also testified that at some time prior to the hearing the Respondent supplied the General Counsel with a list of all merit increases made by the Respond- ent both prior to negotiations and throughout the year 1957. The Respondent concedes that, in addition to the specific increases granted in November 1956 and March 1957, the Board is entitled, on the basis of the pleadings, to find that one such merit increase was granted in April, one in June, one in August, one in September, and one in Octo- ber. It is undisputed that these merit increases were given without consultation with the Union. Accordingly, we find that the Respond- ent made unilateral changes in the wages of its employees in disregard of its obligation to bargain with the Union, and thereby violated Sec- tion 8(a) (5) and (1) of the Act.-' As to the question of unilateral changes in hours, the Respondent's answer admitted the complaint's allegations that changes in hours were also made during the period from March to October 1957. The Act imposes upon an employer the obligation to bargain with the exclusive representative of its employees with respect to "wages, hours, and other terms and conditions of employment." Thus, the Respond- ent's answer constitutes an admission that it failed to live up to the Act's requirements in that regard. Although the Respondent suggests in its brief that the unilateral changes in hours might have affected only an occasional employee, or might have been caused by equipment breakdown, or even by individual employee requests, it adduced no such evidence, and there is nothing in the record to diminish the force of its admission of conduct violative of the Act. However, we find merit in the Respondent's contention that the record does not support a finding that the Respondent failed in its bargaining obligation with respect to "job classifications." Although 5 Bob Morgan Motor Company, Inc., 106 NLRB 334, 335; Herman Sausage Co., Inc., 122 NLRB 168; Bonham Cotton Mills, Inc., 121 NLRB 12,15; Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 , 847 (C.A. 5). CHAMBERS MANUFACTURING CORPORATION 725 the Respondent's answer admitted the making of unilateral changes in job classifications, the record is clear that the Respondent actually had no fixed job classifications with fixed job contents. Moreover, the evidence shows that, during the period of the alleged unilateral action, it was customary for the Respondent, when the need arose, to shift employees temporarily from their usual occupations to other work. It is therefore difficult to infer from such evidence that the temporary shifting of employees from one job to another represented a substantial change either in job classifications or in job content so as to impose upon the Respondent the obligation of bargaining with the Union with respect to such changes. In view of the foregoing and the special cir- cumstances here involved, we find that the General Counsel did not sustain the burden of establishing by a preponderance of the evidence that the Respondent made unilateral changes in alleged "job classifi- cations" in violation of Section 8 (a) (5) of the Act. We also find, in agreement with the Trial Examiner, that the Re- spondent further violated Section 8(a) (5) and (1) of the Act by refusing to meet with the Union upon its request on July 9 and 11, 1957. In so doing, we do not rely on the Trial Examiner's finding that, at the time of the July 9 and 11 requests for bargaining, job classifi- cations were more formalized, thus providing a new subject matter for bargaining which had not previously existed. As the Respondent points out in its brief, there is no evidence to support such a finding of fact. However, we concur in the Trial Examiner's other reasons for finding an unlawful refusal to bargain on those dates. The Respondent contends that it cannot be found delinquent in its bargaining obligation because the Union itself did not bargain in good faith. In support of its position, the Respondent relies upon Miller's threat to increase the Union's demand by 10 cents an hour at each bargaining session until agreement was reached. We find no merit in this contention. As found by the Trial Examiner, such conduct on the part of the Union was a mere tactical maneuver in the Union's effort to force the Respondent to raise its offer above the rate of $1 per hour and was not a serious impediment to further negotiations. In- deed, Ryan, an admitted expert in the field of collective-bargaining negotiations, knew that the Union's wage demands were nothing more than tactical maneuvers. For one thing, Ryan did not base his rejec- tion of the Union's demand for further bargaining on July 9, 1957, on the ground that it was Miller's declared purpose to increase the Union's wage demands at each bargaining session. Furthermore, it is clear that Ryan regarded the Union's original demand of $1.40 an hour as something less than realistic, because, as he testified, he was certain "neither side was going to jump forty cents an hour." We further agree with the Trial Examiner that the Respondent was under a continuing duty to bargain with the Union upon its 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request and that, by refusing to meet with the Union pursuant to Miller's request on November 20, 1957, the Respondent violated Sec- tion 8(a) (5) and (1) of the Act. The Respondent contends, however, that the November refusal occurred after the charge in the instant case was filed and served; that no amended charge was thereafter filed; and that therefore the Board is barred by the 6-month limitations in Section 10(b) in finding a violation of the Act based upon the November refusal. We find no merit in this contention. It is clear that the November refusal to meet with the Union was conduct similar in nature to the Respond- ent's earlier refusal to bargain with the Union on July 9 and 11. It is well established that the Board is not barred from finding specific acts of misconduct which are part of a pattern of continuing conduct, although such acts may have occurred after a charge was filed.6 3. For the reasons set forth in the Intermediate Report, we agree with the Trial Examiner that the Respondent independently violated Section 8 (a) (1) of the Act. ORDER Upon the entire record in this 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, Chambers Manu- facturing Corporation, Oxford, Mississippi, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with regard to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of all its employees in the follow- ing appropriate unit : All production and maintenance employees in the Respondent's plant in Oxford, Mississippi, excluding office clerical employees, watchmen, guards, and supervisors as defined in the Act. (b) Making unilateral changes in wages and hours, or other terms and conditions of employment of its employees in the above-described appropriate unit without consulting and bargaining with the above- named Union in violation of the Act. (c) Prohibiting, by threats of discharge or in any other manner, employees from engaging in union activities during nonworking time. (d) Promising employees wage increases, transfers to other jobs, or other benefits, for withdrawal of their union membership, and tell- ing employees that they would have to withdraw their union member- ship to accept a transfer to jobs excluded from the appropriate unit. °N.L.R.B. v. Kohler Company, 220 F. 2d 3, 7 (C.A. 7) ; N.L.R.B. v. Anchor Rome Mills, 228 F. 2d 775, 779 (C.A. 5). CHAMBERS MANUFACTURING CORPORATION 727 (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organiza- tion, to form, join, or assist United Steelworkers of America, AFL- -CIO, or any labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the em- ployees in the above-described unit with respect to rates of pay, wages, hours of work, and other terms or conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its plant in Oxford, Mississippi, copies of the notice attached hereto marked "Appendix."' Copies of the notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. Y In 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 : AVE WILL NOT prohibit, by threats of discharge or in any other manner, our employees from engaging in union activities during nonworking time. Wn WILL NOT promise employees wage increases, transfers to other jobs, or other benefits, for withdrawal of their union mem- 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership ; nor will we tell employees that they will have to with- draw their union membership to accept a transfer to jobs excluded from the appropriate unit. WE WILL NOT make unilateral changes in the wages, hours, or other terms and conditions of employment of employees in the appropriate unit, without consulting and bargaining with United Steelworkers of America, AFL-CIO, in violation of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act. WE WILL, upon request, bargain collectively with United Steel- workers of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is : All production and maintenance employees at our Ox- ford, Mississippi, plant, excluding office clerical employees, watchmen, guards, and supervisors as defined in the Act. CHAMBERS MANUFACTURING CORPORATION, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by United Steelworkers of America , AFL-CIO, herein called the Union , the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana ), issued his complaint , dated August 20, 1958, and amended on September 22, 1958, against Chambers Manufacturing Corporation , herein called the Respondent . With respect to the unfair labor practices , the complaint , as amended, alleges, in substance that: (1) on or about October 30, 1956, the Board conducted an election in which the Union was selected as bargaining representative by a majority of the employees in an appropriate unit of production and maintenance employees, with specified exclusions, CHAMBERS MANUFACTURING CORPORATION 729 at the Respondent's Oxford, Mississippi, plant; (2) on November 7, 1956, the Regional Director certified the Union as the exclusive representative of all the em- ployees in said appropriate unit; (3) Plant Manager Wheeler directed an employee to withdrawn his membership from the Union in February 1957 and threatened to discharge another employee in July 1957 for continued union or concerted activities; (4) Supervisor Cecil Davis promised an employee a wage increase in March 1957, conditioned upon his withdrawal of his union membership; (5) on or about January 22 and February 15, 1957, the Union requested the Respondent to furnish certain wage and employee data, and that the Respondent has at all times failed and refused to furnish such information and data; (6) during the months of March, April, June, August, September, and October 1957, Respondent made unilateral changes in wages, hours, and job classifications of employees in the appropriate unit; (7) on or about July 9 and 11, 1957, the Union requested Respondent to bargain with it, and the Respondent has refused and at all times thereafter has continued to refuse to bargain with the Union as the exclusive representative of the employees in the appropriate unit; and (8) by the foregoing conduct, the Respondent engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. In its duly filed answer to the complaint as amended, Respondent (1) admits the allegations pertaining to the Board's jurisdiction and the status of the Union as a labor organization; (2) admits the appropriateness of the unit, that the Union was desig- nated as collective-bargaining representative by a majority of the employees in said unit in a Board-conducted election, and that the Regional Director certified the Union on November 6, 1956, as the exclusive representative of all the employees in said unit; (3) admits the allegations of fact that during the months of March, April, June, August, September, and October, 1957, Respondent made unilateral changes in wages, hours, and job classifications of employees in the appropriate unit but denies any implication that such changes were improper or unlawful; and specifically denies all remaining allegations in the complaint as amended or that Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act. Pursuant to due notice, a hearing was held on October 7 to 9 and 21 to 22, 1958, at Oxford, Mississippi. All parties were represented at the hearing and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. Subsequent to the hearing, the Respondent filed a brief which I have fully considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation and a subsidiary of Chambers Corpora- tion, which, in turn, is incorporated under the laws of the State of Indiana. The Respondent operates a plant in Oxford, Mississippi, the only facility herein involved, where it is engaged in the manufacture and sale of gas and electric ranges. During the period from February 1 to July 31, 1956, which period is representative of all times material herein, Respondent manufactured and sold at the Oxford, Mississippi, plant finished products valued in excess of $300,000, approximately 98 percent of which, in value, was sold, shipped, and delivered to points outside the State of Mississippi. Upon the above admitted fact, I find as Respondent concedes in its brief, that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find, that United Steelworkers of America, AFL-CIO, is a labor oragnization within the meaning of Section 2(5) of the Act. iI hereby note and correct the following inconsequential but obvious typographical errors in the typewritten transcript of the testimony : On page 117, line 13, "$1.40" is corrected to read "$1.00" ; on page 425, line 14, "December 1" Is corrected to read "December 12"; on page 468, line 3, "if" is corrected to read "that"; on page 478, line 2, "a" is corrected to read "no" ; on page 520, line 6, the word "security" is to be inserted after the word "union." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and the Union's status as exclusive bargaining representative therein The complaint alleges, Respondent's answer and brief admit, and I find, that all production and maintenance employees at Respondent's Oxford, Mississippi, plant, but excluding office clerical employees, watchmen, guards, 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. In a Board-directed election conducted on October 30, 1956, the Union was selected as bargaining representative by a majority of the employees in the said appropriate unit. On November 7, 1956, the Union was accordingly certified as the exclusive collective-bargaining representative of all the employees in the afore- stated appropriate unit. I find that at all times since November 7, 1956, the Union has been, and is, the exclusive representative of the employees in the aforestated appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment within the meaning of Section 9(a) of the Act. 2. The negotiations Following an exchange of correspondence between the parties, the Union sub- mitted to Respondent a proposed collective-bargaining agreement in advance of the first meeting which was held on December 12, 1956. A second meeting was held on January 21, 1957. Failing agreement, a third meeting was held on February 15, 1957, in the offices and under the auspices of a conciliator of the Federal Mediation and Conciliation Service, without success. With respect to what transpired at these meetings, Emerson F. Miller, the Union's staff representative, was the only witness for the General Counsel, and George P. Ryan, Respondent's attorney from Indian- apolis, Indiana, was the only witness for Respondent. (a) The negotiating meetings of December 12, 1956, and January 21, 1957 These meetings were held in Oxford, Mississippi . The Union was represented by Staff Representatives Miller and Shewmake and a three-man employee committee, with Miller acting as the spokesman and negotiator. The Respondent was repre- sented by Ryan, its attorney from Indianapolis, Indiana, with full power and author- ity to negotiate a binding agreement. Respondent's local attorney, Will Hickman, was also present at the second meeting as an observer. The Union's proposed agree- ment, consisting of 20 pages and containing 23 articles with numerous sections and subsections, was discussed at the first meeting, article by article and section by section. At the second meeting, the parties discussed, article by article, the Respondent's proposed agreement, consisting of 11 pages and 28 articles, which contained Re- spondent's counterproposals and also embodied provisions agreed upon at the first meeting. Each bargain session lasted the better part of a day. The status of the negotiations at the end of the second meeting was as follows: The Respondent had agreed to a number of the Union's proposals and the Union had agreed to a number of Respondent's proposals. The Respondent had made counter- proposals on some other items, some of which were acceptable to the Union and others unacceptable. With respect to most of the money items, Respondent's posi- tion, in general, was that it would not agree to any provision which would cost the company money. The Union had requested $1.40 per hour for the base rate of pay. The Respondent refused to offer more than its current rate of pay of $1 per hour, the minimum required by the Fair Labor Standards Act, making it clear that it was not pleading poverty but that there was a plentiful labor supply in the area at that rate. The Union wanted double time for work in excess of 8 hours in any one day and for work in excess of 40 hours in 1 week. Respondent would not agree to. premium pay for work in excess of 8 hours in any one day and offered to pay time and a half for work performed in excess of 40 hours in 1 week, which was the requirement under the Fair Labor Standards Act. The Union wanted double time for work performed on holidays and pay for unworked holidays. Respondent offered only to pay time and a half for work actually performed on holidays. Re- spondent's offer of 3 hours of reporting pay was unacceptable to the Union. The main discussion centered around the base rate of pay. Ryan repeatedly made it clear throughout the negotiations that the Respondent did not intend to offer more than $1 per hour. On the other hand, Miller, on behalf of the Union, admittedly CHAMBERS MANUFACTURING CORPORATION 731 made it clear that he would not agree to that rate, that he would not modify his request of $1.40 per hour unless the Respondent offered more than $1 per hour, and that there would be no agreement unless the Respondent raised its offer. At the close of the second meeting, Ryan stated that unless the Union was prepared to modify its wage demand, there was nothing to be gained by any further discussion. At that point, Miller stated that he would modify his demand to $1.50 per hour and an additional 10 cents per hour at each successive meeting. The meeting thereupon broke up without any arrangement for further meetings. Based upon the entire record considered as a whole, I am of the opinion and find that the Respondent bargained in good faith at the two negotiating sessions and that at the end of the second meeting the parties had reached a bona fide impasse over wages .2 Ryan admitted that he felt that their differences as to the noneconomic items of the contract were not of such character that they could not be ironed out. (b) The meeting with the conciliator on February 15, 1957 As a result of the efforts of Mr. Rosenberry, a conciliator of the Federal Media- tion and Conciliation Service, a third meeting of the parties took place in his office in Memphis, Tennessee. Ryan testified that he attended this meeting on assurances by Mr. Rosenberry that the Union had agreed to modify its wage demands. At this meeting, Respondent was represented by Ryan; and the Union, by Miller and the three-man employee committee. Only Miller and Ryan testified with respect to what occurred at this meeting. An examination of both versions discloses that the respective positions of the parties on the wage issue remained the same.3 On the one side, Ryan made it clear that the Respondent's proposal was still $1 per hour, that he did not intend to raise it, and that there was no use in further discussions of any other items unless the Union were to modify its wage demand. On the other side, Miller made it clear that unless the Respondent raised its offer above the $1 per hour figure required by law, he would not reduce his wage demands. There was no request for a discussion of any other provisions of the proposed contracts, and none was had. Mr. Rosenberry then had a brief conference with each group separately; the respective positions of the parties remained unaltered. The meeting, which had lasted less than a half hour, ended with Mr. Rosenberry taking a copy of the contracts proposed by the Union and the Respondent, and ad- vising the parties that he would study the contracts and try to arrange another meeting. No further meetings were arranged or held. It is clear, and I find, that the impasse on wages, which existed at the end of the second meeting, remained unbroken at this meeting. I accordingly find that there was no unlawful refusal to bargain at this meeting. 3. The Respondent's unlawful conduct The complaint alleges, and the General Counsel contends , that the Respondent violated the Act by its conduct (a) in refusing to furnish to the Union , upon request, certain wage and employee data; (b) in making unilateral changes in wages, hours, and job classifications of employees in the appropriate unit; and .(c) in refusing to meet and bargain with the Union, upon request, with respect to wages, hours, and other conditions of employment. (a) The alleged refusal to furnish requested data Miller testified that in each of the meetings hereinabove discussed, as well as in a telephone conversation on July 9, 1957, discussed infra, he requested Ryan to furnish a list of the employees, with their classification, seriority, wage rate, and the number of hours spent at different jobs; that he had emphasized the necessity for such data to enable Miller to determine whether and to what extent he could modify his wage demands; and that Ryan at all times refused to furnish the requested data, stating that the Respondent was not pleading poverty and would not open its books 2 Miller's testimony (denied by Ryan) concerning Ryan's alleged refusal, upon request, to furnish certain wage and employee data, and concerning Ryan's alleged statements at the second meeting that Respondent's proposed contract was a package deal which could not be considered or negotiated piece meal, is not credited far the reasons discussed in section III A 3(a), infra. 9 Miller's testimony (denied by Ryan) that he again requested, and was refused, certain wage and employee data to aid him in formulating a different wage proposal, is not credited for the reasons discussed in section III A 3(a), infra. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and records to the Union. Ryan, on the other hand, categorically denied that any such requests were ever made. He further testified that he had been specializing for a number of years in representing employers in labor relations matters, that he was well aware of the fact that the alleged requested data has been held to be relevant to negotiations, and that he therefore would have furnished such information and data if in fact they had been requested. Miller admittedly was an experienced union negotiator of many years standing. Yet, he made no written requests for the alleged data and his contemporaneous notes of the negotiations make no mention of such requests. Nor did he make any mention of such requests in his narrative description of the negotiations in his pretrial affidavits to a field investigator of the Board. Moreover, his pretrial affidavit of October 2, 1957, admittedly failed to mention the respects in which, according to Miller's own testimony, the parties were in agreement, and, indeed, contained state- ments as to Respondent's position on many items which were directly contrary to Miller's testimony. When these matters were called to Miller's attention on cross-examination, he sought to explain the omission or contradiction by testifying that at the time he made the affidavit he had forgotten about these matters or did not think that they were important to substantiate the Union's charge. Moreover, although it appears from Millers' testimony that Ryan's reply was not responsive, Miller admittedly made no comment to Ryan on his unresponsive answer. Finally, although Union Representative Shewmake was present at the first two meetings, and a three-man employee committee was present at all three meetings,4 the General Counsel did not call any other witness to corroborate Miller's testimony. Under all the circumstances, and upon consideration of the entire record, including the demeanor of the witnesses, I will credit Miller's testimony only where it is un- denied and is not inconsistent with that of Ryan, and will discredit Miller's testimony wherever it conflicts with that of Ryan. I find, in accordance with Ryan's testimony, that Miller did not at any time request Ryan to furnish the alleged data and that therefore Ryan never refused to furnish same. (b) Unilateral changes in wages, hours, and job classifications The complaint alleges that during the months of March, April, June, August, September, and October, 1957, the Respondent made unilateral changes in wages, hours, and job classifications of employees in the appropriate unit. The Respond- ent's answer admits this allegation but denies that such changes were improper or unlawful. The General Counsel adduced no evidence with respect to the nature or type of unilateral changes, relying on the fact that said allegation was admitted in the Respondent's answer. The Respondent also adduced no evidence bearing on the nature or type of unilateral changes it admittedly made during the periods alleged in the complaint. The Respondent contends in its brief that "whether or not unlaw- ful or improper changes were made is a matter of evidence" and that the General Counsel has failed to sustain his burden of proof in this respect. In view of the Respondent's admission in its answer, there was no need for the General Counsel to adduce evidence to prove that Respondent did in fact make unilateral changes in the wages, hours, and job classifications of the employees in the bargaining unit during the months set forth in the complaint. The record shows that such changes were made without prior consultation with, or notice to, the Union which was still the exclusive bargaining representative of said employees .5 And such unilateral changes continued to be made despite Miller's protest to Ryan in a telephone conversation on July 9, discussed infra, that he had heard that some employees had been given wage increases, and despite Respondent's unlawful refusal to bargain on July 9 and 11, 1957, as hereinafter found. It is well settled that an employer may lawfully take unilateral action with respect to the terms and conditions of employment as to which a bona fide impasse had previously been reached in negotiations, provided that the unilateral changes do not exceed that which the employer had offered the Union in the negotiations. Respond- ent's unilateral action in this case did not meet this test. Taking the position most favorable to the Respondent, I will assume that the wage changes were merit increases to individual employees. Respondent's base rate of pay at the time of the negotiations was $1 per hour, the rate which it offered to the Union and which was the minimum required by law. Any merit increase would therefore 4 Respondent's local counsel was present only at the meeting of January 21, 1957. 5 The only time the Respondent got in touch with the Union after the meeting of February 15, was on July 9, 1957, when Ryan returned Miller's long-distance call and refused the Union's request for a further meeting. See discussion infra. CHAMBERS MANUFACTURING CORPORATION 733 increase the individual's wage above the $ 1 per hour rate. The Union's proposed contract, which was discussed at the meeting of December 12, 1956, contained no provision for merit increases and consequently there was no discussion at that time on this project. The Respondent's proposed contract, which was discussed only at the meeting of January 21, 1957, contained a proposal with respect to merit increases which is set forth below .6 This proposal embodied the Respondent's then cur- rent practice, which was in effect prior to the commencement of negotiations, but did not specify the amount of the merit increases which was usually 5 or 10 cents per hour. After this provision was read at the meeting of January 21, 1957, Miller asked if the Respondent had a formalized merit increase plan. Ryan replied that they had nothing in writing; that the plan that was being followed was to review the perform- ance of the employees every so often and, if an employee showed improvement in his performance or had been assigned additional responsibilities and his superiors recommended a merit increase on either factor , the employee would be given an increase. Miller objected to the unilateral control over merit increases which the provision lodged in management and to the fact that it did not permit an employer to process his grievance through arbitration, the final step provided in the grievance procedure. Ryan replied that he felt certain that any abuse of discretion could be worked out in the preliminary steps of the grievance procedure. The parties then passed on to a discussion of the next provision in Respondent's proposed contract. Ryan admitted that he never made any proposal to the Union as to the specific amount of the merit increases, which at that time was usually 5 to 10 cents per hour. A consideration of the entire record convinces me, and I find, that no impasse. had been reached at that time with respect to the method of granting merit increases. The proposal was explained; each side stated its respective position ; and the parties passed on to discuss other provisions without having reached agreement on this one. The Union had no further opportunity thereafter to discuss this provision of the contract. Moreover, even if, contrary to my finding, a bona fide impasse had been reached in this respect , Respondent's unilateral grant of merit increases, without advising the Union thereof, went further than the Respondent's proposal in which Respondent specifically agreed to advise the Union immediately when any merit increase was put into effect. The record also shows, and I find, that no impasse had been reached with respect to hours of work or the work classification of employees. Indeed, Ryan testified that in connection with the discussion of wages at the meeting of January 21, 1957, Miller had asked about the job classifications; and that Ryan replied that they did not have any formal job classifications at that time because production was still in a formative stage, and that many employees were moved around from job to job and paid the same rate of $1 per hour. In view of the foregoing, I find that the Respondent was under a duty to consult with, and notify, the Union as the exclusive bargaining representative of the em- ployees before making changes in the wages, hours, and job classifications of any of the employees in the appropriate unit, and to grant the Union the opportunity to negotiate on the impact of such changes . I further find that the Respondent's failure to fulfill that duty violated Section 8(a) (5) and (1) of the Act.7 8 The second and third paragraphs of article VIII are as follows : The performance of each employee shall be reviewed at least once each six (6) months during the life of this contract without prejudice to the Company's right to make more frequent reviews in its discretion. If, in the Company's judgment, such review dis- closes that the employee's performance has improved, the Company will grant merit increases in accordance with the improvement shown. The Company agree to advise the Union immediately when any merit increase is placed into effect. Complaints that the Company has abused its discretion in connection with grant- ing, or refusing to grant, merit increases may be presented as a grievance through the grievance procedure provided in the contract. Such complaints, however, shall not be subject to arbitration. 7 See, e.g., Bob Morgan Motor Company, Inc., 106 NLRB 334, 335; Herman Sausage Co., Inc., 122 NLRB 168; Bonham Cotton Mills, Inc., 121 NLRB 1235. White's Uvalde Mines v. N.L.I?.B., 255 F. 2d 564 and 574 (C.A. 5), relied on by Respondent, turned on its own facts and is distinguishable on the ground, among others, that, unlike in the instant case, the merit increases "had all accrued before bargaining sessions commenced." Indeed, on petition for rehearing (255 F. 2d 574), the court specifically recognized the principle that an employer may not grant individual merit increases without first negotiat- ing with the statutory bargaining representative. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Refusals to bargain, upon request After several efforts to contact Ryan by telephone, Miller finally succeeded in having a long-distance telephone conversation with Ryan on July 9, 1957. Miller stated that he wanted to have another meeting to negotiate any part of the contract, whether the issues involved be economic or noneconomic, and that he wanted to find some ground on which to negotiate. Ryan replied that Respondent's position remained the same as before and therefore he first wanted an assurance that the Union was willing to modify its wage demands in the area of the Respondent's wage proposal of $1 per hour before he would agree to have another meeting. Miller refused to give any such assurance. During the conversation, Miller stated that he had heard that some employees had received wage increases. Ryan replied that he did not believe it. The conversation ended with Ryan refusing to agree to another meeting.8 On July 11, 1957, the Respondent received from Miller a telegram, containing the Union's request that the Respondent meet "for the purpose of negotiating a contract on hours of work, wages, and conditions of employment." This telegram admittedly was forwarded to Ryan, Respondent's counsel. There admittedly was no reply to this telegram. On November 20, 1957, Miller called Ryan by telephone, long distance, and wanted to know if they could have another meeting and attempt to reach an agree- ment on the contract. Ryan admittedly replied that in view of the Union's position as to filing another petition for an election, the company had substantial doubts as to the Union's majority status and therefore the Respondent would not meet with the Union until its majority status was established by an appropriate Board proceeding. The Respondent contends in its brief that there was no unlawful refusal to bargain on July 9 and 11 because, the Respondent argues, an impasse continued to exist in view of the respective positions on the wage issue; that is, Ryan's adherence to his proposal of $1 an hour, and Miller's unwillingness to give any assurance that the Union would modify its demand in the area of Respondent's proposal. I do not agree. There had only been two meetings, the last one on January 21, 1957, in which the provisions of a proposed contract had been discussed item by item. Six months had elapsed since the last meeting, and 5 months had elapsed since the meeting in the conciliator's office where the parties remained deadlocked on the wage issue. In addition to the money items, a number of noneconomic items, as to which there had been no impasse, still remained unresolved. These included, among others, the wording of the management clause, a part of the seniority clause, a part of the grievance procedure, and the mechanics and procedure for granting, and grieving about, merit increases. Miller wanted a meeting to negotiate such issues as well as the money items in an effort to reach some area of agreement on an entire con- tract. The "Act clearly requires an employer to bargain on all matters involving the employees' terms and conditions of employment" and the fact that the parties had reached an impasse on wages 5 months earlier, constitutes no "defense to a refusal to bargain with respect to other matters which the Union requested be considered." 9 Indeed, Ryan admitted that he felt that their differences on the noneconomic items of the contract were not of such character that they could not be ironed out. The fact that in the telephone conversation of July 9, Miller was unwilling to give any assurance that he would modify his wage demand in the area of Ryan's proposal, is not, under all the circumstances, conclusive. In the previous meetings Miller had indicated a willingness to modify his wage demand if Ryan would make some offer above the $1 an hour figure required by law. Ryan was at all times just as adamant in refusing to give any assurance that he would increase his wage offer above $1 an hour. Yet, on cross-examination, Ryan admitted the s The findings with respect to the telephone conversation are based on Miller' s testi- mony wherever it is undisputed and not inconsistent with that of Ryan , and on Ryan's testimony wherever it conflicts with that of Miller . Thus, Ryan did not deny that Iitiller' s request was for a meeting to negotiate any part of the contract , whether economic or noneconomic issues were involved ; nor did he deny Miller 's testimony concerning wage `increases received by employees . Ryan merely testified that "at no time during the nego- tiations did Miller mention the subject of wage increases made by Respondent." [Em- phasis supplied .] Moreover, Miller's testimony in this respect is consistent with the fact that some employees had received wage increases during the period from March to July 9. o Pool Manufacturing Company, 70 NLRB 540, 549. CHAMBERS MANUFACTURING CORPORATION 735 "possibility of our reaching an agreement" on a rate above the $1 figure through the process of collective bargaining, explaining that "in order to conclude a collec- tive bargaining agreement the Company has to pay more than it wants to pay, and the Union has to take less than it wants to get." Thus, it does not follow that a resumption of discussion on other matters, particularly noneconomic items, might not have led the parties to eventual settlement of the entire disagreement between them. There was always the possibility that either the Respondent or the Union might retreat from its seemingly inflexible position on the wage issue because of concessions given or taken on the noneconomic or other items. The fruition of this possibility into an actuality may not be foreclosed by the Respondent's refusal to meet with the Union. "It is elementary that collective bargaining is most effec- tively carried out by personal meetings and conferences of the parties at the bar- gaining table." to Indeed, the more lapse of time had created the occasion appropriate for collective bargaining even on some of :the money items. Thus, with respect to the Union's proposal for paid vacations, discussed at the first meeting on December 12, 1956, Ryan took the position that Respondent would not grant paid vacations for the year 1957 because the plant had not yet gotten under full production and the employees were relatively new and inexperienced. There was no discussion of paid vacations at the second meeting of January 21, 1957, because Respondent's proposed contract contained no provision to that effect. Thus, in July 1957, the opportunity to discuss paid vacations for the year 1958, or at least for that part of the year which would be covered by any contract finally executed, arose for the first time. Ryan's admission that Respondent did in fact give paid vacations to the employees in 1958 strongly indicates eventual success in reaching agreement on this item. Also, in July 1957 the work classifications, which obviously bear a direct and important relationship to the wage scale, were more formalized and the jobs of the employees more stable, thus opening up further areas for bargaining. As previously pointed out, and particularly in view of Ryan's admission of the possi- bility of agreement being reached on a rate above the $1 per hour offered by Respondent, there is no telling to what extent the Union and/or the Respondent may have been willing to modify their position on wages in the light of having reached satisfactory agreement on this and perhaps other issues. The appropriate testing ground is at the bargaining table. Moreover, as previously found, during the months of March, April, and June, 1957, Respondent unlawfully made unilateral changes in wages, hours, and job classifications of employees, without notification to, or consultation with, the Union. Such unilateral changes continued to be made during the months of August, Sep- tember, and October, after the Respondent had refused the Union's request for a further meeting. The Union was therefore entitled to an opportunity to negotiate on the impact of such changes as had been put into effect and were intended in the future. The opening which such changes make for the correction of existing in- equities among employees and for the possible substitution of other items in lieu of part of the proposed changes, suggests a number of opportunities for bargaining. Thus, even apart from any other considerations, Respondent's own conduct alone had created the occasion appropriate for collective bargaining." Upon consideration of the entire record considered as a whole, I find that Re- spondent's refusal to meet with the Union for collective-bargaining purposes, upon the latter's request on July 9 and 11, 1957, constituted a refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. The Respondent's refusal to meet with the Union, upon the latter's request on November 20, 1957, is based on an alleged good-faith doubt as to the Union's con- tinued status as the majority representative of the employees in the appropriate unit. However, it is well settled that any possible numerical loss of majority representation must be attributable, as I find, to Respondent's prior unlawful refusals to bargain. Under these circumstances, the Union's status as exclusive bargaining representative continued as a matter of law and the defense of good-faith doubt of majority is not available to :the Respondent.12 Accordingly, I find that Respondent's refusal to meet with the Union for collective-bargaining purposes, upon the latter's request on November 20, 1957, constituted a further refusal to bargain in violation of Section 8 (a) (5) and (1) of the Act. 10 United States Cold Storage Corporation, 96 NLRB 1108, enfd. 203 F. 2d 924 (C.A. 5), cert. denied 3'46 U.S. 8118. 11 Cf., e.g., N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 224. "Franks Bros. Company v. N.L.R.B., 321 U.S. 702. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Respondent's alternative defenses Respondent contends in its brief that "assuming for the sake of the argument that the Employer had refused to bargain on July 9-11, the Union had previously violated the Act in the same regard." This contention is based on Miller's conduct (1) in initially asking for a $1.40 hourly wage rate, which constituted an increase of 40 percent, and, at the end of the second meeting, increasing that demand to $1.50 per hour with the statement that it would be raised 10 cents at each subsequent meeting; and (2) in allegedly attempting to go behind Ryan's back to deal directly with the Employer. Respondent argues that such conduct constituted bad-faith negotiating on the part of Miller and that Respondent therefore cannot be found to have violated the Act. The record clearly shows that Miller's conduct in raising his wage demand to $1.50 per hour with the statement that it would be increased 10 cents per hour at each subsequent meeting, was merely a tactical bargaining maneuver employed in an effort to force the Respondent to raise its offer above the then current rate of $1 per hour, the minimum required by law. Nor does the record support the Respondent's contention that Miller was attempting to deal directly with the Em- ployer behind Ryan's back. I find no merit in Respondent's alternative defenses. (e) Interference, restraint, and coercion In addition to the unilateral action found to be violative of Section 8(a)(1) as well as Section 8(a)(5) of the Act, the complaint alleges further specific violations of Section 8(a)(1). The factual findings with respect to these alleged violations are based on the credible and undenied testimony of employees Rhoma Thweatt and Edward Moorehead. In February 1957, Plant Superintendent Wheeler told Thweatt, who was at that time employed as a janitor, that he would like him to take the job of watchman. When Thweatt agreed, Wheeler stated that Thweatt would have to get out of the Union in order to take the watchman's job, that neither the Company nor the Union allowed the watchman to be in the Union, and that Thweatt would have to get his union card and turn it in to the Company's office. About a week later Wheeler again spoke to Thweatt, while the latter was sweeping near Wheeler's office. Wheeler asked Thweatt if he had gotten his union card, and Thweatt replied that he had not. Although he made an effort to do so, Thweatt did not get his card back. In July 1957, while occupying the position of watchman, Thweatt went to Superintendent Wheeler's office to get his check. On this occasion, Wheeler stated that he had heard that Thweatt was organizing for the Union "on the job and off"; warned that he would not tolerate it; and threatened to fire Thweatt if Wheeler caught him "first hand." With respect to the threat of discharge, Thweatt testified on cross-examination that Wheeler threatened to "fire me if he caught me first-hand organizing on the job or off." Thweatt denied to Wheeler that he did any organizing and stated that he believed Wheeler had been misinformed. On March 21, 1957, Chief Engineer Cecil Davis spoke to employee Moorehead in the toolroom about the latter's prior request for a raise. Moorehead was per- forming toolroom work at that time. Davis stated that the Union and the Company had reached a statemate which made it hard for men like Moorehead, who deserved a raise, to get one. Davis then stated that Moorehead could get released or with- draw his card from the Union, and then "we can transfer you to engineering and give you a raise." Moorehead agreed to do so and asked Davis how to go about getting his card back. Davis suggested that Moorehead "go to one of the Union boys and ask for a withdrawal card from the Union." A few days later, Davis again spoke to Moorehead, while the latter was working in the toolroom. Davis said that since they were sure that Moorehead would do what he had promised, they had not waited for Moorehead to get his withdrawal card from the Union but had gone ahead and transferred him to engineering and given him a raise of 15 cents per hour. During the first week in which his raise and transfer were effective, Moorehead's duties were substantially the same. There- fore, he gradually did more experimental work. Moorehead testified that he was under the impression that employees in the engineering department were not in the appropriate unit and were not represented by the Union. Moorehead never did get a withdrawal card from the Union. Concluding Findings The parties stipulated that Wheeler and Davis were supervisors within the meaning of the Act during the times material to the complaint. CHAMBERS MANUFACTURING CORPORATION 737 As the classifications of watchmen and guards were excluded from the appro- priate unit, Thweatt would not be represented by the Union upon being transferred to such a position. However, whether he be considered a watchman or a guard, he still had the right guaranteed by Section 7 of the Act to continue to be a member of the Union. Superintendent Wheeler's statement that he would have to get his card back from the Union and turn it in to the Company's office if he were to transfer to the job of watchman, obviously constituted interference, restraint, and coercion in the exercise of that right. That Wheeler had an erroneous understand- ing of the law in this respect, confusing unit with the Union, is of course no defense. Whether Wheeler's prohibition against Thweatt engaging in union activities, on penalty of discharge, was directed to "on the job and off" or to "on the job or off," the result is the same. In either event, and even assuming the existence of a rule prohibiting union activity during working time, the prohibition was broad enough to include Thweatt's nonworking time on the Respondent's premises and, hence, to that extent deprived him of rights guaranteed by Section 7 of the Act.13 Finally, Chief Engineer Davis' promise to grant Moorehead a raise if he would transfer to the engineering department and coincident therewith withdraw his mem- bership from the Union obviously constitutes interference, restraint, and coercion proscribed by Section 7 and 8 (a) (1) of the Act. Contrary to Respondent's conten- tions, the engineering department is not excluded from the bargaining unit and, even if it were, the result would be the same as in the case of Thweatt. I find that by the foregoing conduct of Superintendent Wheeler and Chief Engineer Davis, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of 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 thereof. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent refused to bargain with the Union at all times on and after July 9, 1957, in violation of Section 8(a) (5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees at Respondent's Oxford, Mississippi, plant, but excluding office clerical employees, watchmen, guards, 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. 2. United Steelworkers of America, AFL-CIO, has been at all times since No- vember 7, 1956, and is, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 3. By making unilateral changes in the wages, hours, and job classifications of employees in the appropriate unit during the months of March, April, June, August, September, and October, 1957, and by refusing on July 9, 11, and November 20, .1957, to bargain with the above-named Union as the exclusive representative of the employees in the aforestated 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. v Limestone Manufacturing Company, 117 NLRB 1689, 1701, and cases cited therein. 525543-60-vol. 124-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By the foregoing conduct, by telling an employee he would have to withdraw his membership from the Union if he were to transfer to a watchman's job, by prohibiting, on penalty of discharge, an employee from engaging in union activities on Respondent's premises during nonworking time, and by promising an employee a raise if he would transfer to the engineering department and withdraw his member- ship from the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in, unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Paperhandlers' & Straighteners' Union No. 1, International Printing Pressmen & Assistants' Union, AFL-CIO and News Syndicate Co., Inc. Case No. 2-CD-168. August 27, 1959 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF CASE This proceeding arises under Section 10(k) of the Act, which pro- vides that, "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of .Section 8(b), the Board is empowered and directed to hear and de- termine the dispute out of which such unfair labor practice shall have arisen. ..." On August 20, 1958, News Syndicate Co., Inc., herein called the News, filed with the Regional Director for the Second Region a charge alleging that Paperhandlers' & Straighteners' Union No. 1, Interna- tional Printing Pressmen & Assistants' Union, AFL-CIO, herein called the Paperhandlers, had engaged in, and was engaging in, cer- tain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. It was charged, in substance, that Paperhandlers had induced and encouraged employees of the News to engage in a strike ,or concerted refusal to work with the object of forcing or requiring the News to assign certain work to employees who were members of the Paperhandlers rather than to other employees, who were represented by Truck Drivers Union Local No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters. Thereafter, pursuant to Section 10(k) of the Act and Sections 102.79 and 102.80 of Board Rules and Regulations, Series 7, the Re- gional Director investigated the charge and provided for a hearing upon due notice to all of the parties. The hearing was held before I. L. Broadwin, hearing officer, on September 17 and November 20, 1958. All parties appeared at the hearing and were afforded full 124 NLRB No. 92.