American Aggregate Co., Inc.

AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 909 American Aggregate Company, Inc. and Featherlite Corpora- tion and United Stone & Allied Products Workers of America, AFL-CIO. Case No. 16-CA-1217. December 18, 1959 DECISION AND ORDER On July 30,1959, Trial Examiner Thomas A. Ricci issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 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 orders that the Respondents, American Aggregate Company, Inc., and Featherlite Corporation, Ranger, Texas, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with United Stone & Allied Products Workers of America, AFL-CIO, as the exclusive bargaining representative of all the Respondents' produc- tion and maintenance employees, at their Ranger, Texas, facility,, excluding office, clerical and professional employees, guards, and all supervisory employees as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Telling its employees that the Respondent would refuse to employ union members. 1 The Trial Examiner correctly based his findings of violations only on incidents occur- ring within the 6-month limitation period prescribed in Section 10(b) of the Act, relying on events outside that period as background with which to give meaning to the later occurrences . We therefore interpret his discussion of the Respondent's unilateral actions in derogation of the Union 's rights as the certified representative , which occurred "both before and after the statutory cut-off date fixed by the Act" in the context of his actual findings. 125 NLRB No. 96. '910 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection as guaranteed in Section 7 of the Act, 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively in good faith with United Stone & Allied Products Workers of America, AFL-CIO, as the ex- clusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (b) Post at their plants and facilities in Ranger, Texas, copies of the notice attached hereto marked "Appendix." 2 Copies of said no- tice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an authorized representative of the Respondents, be posted by the Respondents immediately upon receipt thereof and maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. '1 (c) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. 2In 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, we hereby notify our employees that : WE WILL NOT tell our employees that we will refuse to employ union members, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 911 join or assist United Stone & Allied Products Workers of Ameri- ca, AFL-CIO, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL, upon request, bargain collectively in good faith with United Stone & Allied Products Workers of America, AFL-CIO, as the exclusive bargaining representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is : All production and maintenance employees at our Ranger, Texas, facility, excluding office, clerical and professional employees, guards, and all supervisory employees as defined in the Act. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AMERICAN AGGREGATE COMPANY, INC., Employer. FEATHERLITE 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 a charge filed by United Stone & Allied Products Workers of America, AFL-CIO , herein called the Union, against American Aggregate Company, Inc., and Featherlite Corporation , herein together called the Respondent or the Company, the General Counsel issued a complaint alleging that the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent filed an answer denying the commission of any unfair labor practices . A heariing was held on May 27 and 28, 1959, at Eastland, Texas, before the duly designated Trial Examiner. All parties were represented by counsel at the hearing and were afforded full opportunity to examine 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and cross-examine witnesses, to introduce evidence, to present oral argument, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. A brief was received from the General Counsel and has been considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Aggregate Company, Inc., is, and has been at all times material hereto, a corporation duly organized and under and existing by virtue of the laws of the State of Texas, having its principal office and place of business at 9151/2 Congress Avenue, Austin, Texas, and is now and has been at all times material continuously engaged in Ranger, Texas, hereinafter referred to as the "facility," in the excavating and processing of clay and related products. Featherlite Corporation is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Delaware, having its principal office and place of business at 9151/2 Congress Avenue, Austin, Texas, and is now and has been at all times material herein continuously engaged at Ranger, Texas, hereinafter referred to as the "facility," in the excavating and processing of clay and related products. Respondent is composed of the two corporations above described, American Aggregate Company, Inc., and Featherlite Corporation; the operations of each corporation are integrated one with the other in such fashion that both corporations are operated as and are one concern. In the course of its business operations at the "facility" during a 12-month period, which period is representative of all times material herein , Respondent ships goods annually valued in excess of $50,000 from that facility to points outside the State of Texas. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED . United Stone & Allied Products Workers of America, AFL-CIO, is a labor organ- ization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The charge in this case was filed by the Union on February 9, 1959. During the preceding 12 months, union representatives had met and conferred with com- pany representatives in negotiation conferences. The essential allegation of the charge, reiterated in specified detail in the complaint, is that the company repre- sentatives were not in fact bargaining at such meetings, but only pretending to do so, and that therefore the Respondent "refused to bargain" with the Union in violation of the obligation imposed by statute. Such conduct, if affirmatively proved on the record, constitutes an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. Restated in terms of more pertinent statutory language, the ultimate issue of the case is whether or not the Respondent bargained in "good faith" with the union representative.' The complaint alleges, the answer admits, and I find that all production and maintenance employees at Respondent's Ranger, Texas, facility, excluding office, clerical and professional employees, guards, and all supervisory employees 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. On October 28, 1957, in a Board-conducted election, the employees in the above- described unit voted to decide whether or not a majority desired to be represented for collective-bargaining purposes by the Union. Twelve employees voted against the Union, thirty-one in favor, and one cast a challenged ballot. The complaint al- leges, the answer admits, and I find that on November 4, 1957, the Board issued a certification to the Union as the exclusive majority representative of all the em- ployees in the appropriate bargaining unit described above. Accordingiv. I find that on that date the Union was the majority representative of the employees here involved. I Section 8(d) of the statute reads : "For the purposes of this section, to bargain col- lectively is the performance of the mutual obligation of the employer and the representa- tive of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, .. ... AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 913 Representatives of the Union and of the Company met on 11 occasions, starting on December 18, 1957, and ending on April 27, 1959. On behalf of the Union, A. J. Shippey, International representative, was the principal spokesman at each of the conferences. On behalf of the Company, its attorney, John Price, did virtually all the talking and negotiating at each conference held. Shippey was on most oc- casions accompanied by a committee of employees, including, from time to time, Wendel Hughes, the recording secretary of Local 194 of the Union, Gene Morris, the local president, and A. A. Talley. Price was accompanied, also at every meet- ing, by Carl Black, vice president of the Respondent and general manager of the Ranger facility. Negotiations started with the Union sending to the Company a complete contract proposal, incorporating provisions for most of the usual collective-bargaining mat- ters, excluding any specific wage proposal. Within a matter of days, the Company submitted to the Union its contract proposal, in itself a comprehensive document. Three meetings were held in the latter part of December, two in January, and a sixth on February 24, 1958. At these six meetings there was considerable discussion of many of the detailed items appearing in each of the parties' written proposals, with offers and counteroffers made by both sides. By the close of the February 24 con- ference their position on virtually all the items discussed was pretty clear; they were at loggerheads over practically all the substantive or cost demands of the Union, but had settled a number of minor matters. They met next on June 5, when again there was much talk about the various material demands of the Union. The next meeting took place on November 9, when the representatives used a new complete contract proposal submitted by the Union at the' equest of Attorney Price as a basis for discussion. The meetings continued on December 1 and 19. They last met on April 27, 1959. The comprehensive contract proposals submitted by each party to the other have been received in evidence. There were also placed in evidence a considerable num- ber of letters exchanged between Shippey and Price, most of them written in the latter part of 1958 and during the months of April and May 1959, immediately preceding the hearing in this proceeding. They are for the most part lengthy, argu- mentative harangues in which the writers characterize and explain their past actions, accuse each other of delaying or evasive tactics, and attempt in repeated and be- labored language to make the other party appear in the worst possible light. None of this evidence, including both the written proposals and the extensive late cor- respondence, is of much substantial value in showing what took place at the bar- gaining conferences. Shippey, called by the General Counsel, testified directly and in considerable detail as to what was said and done at the bargaining conferences. On most subjects he did not pinpoint the demands and the reactions of the opposing party in terms of what occurred at any specific meeting; rather he detailed what his demands were, what the reactions and counter-proposals were, and where agreement failed. Hughes and Morris, the employee officers of the Union's local who attended some of the conferences, also gave direct testimony concerning the events at the meetings. These three witnesses also testified concerning developments at the plant during the entire period of discussions, and the various changes which the Company made in the employment terms and conditions. Black, the plant manager who was also present at every meeting, did not honor a subpena from the General Counsel to testify. After Shippey had given his detailed testimony, however, Black was called as a defense witness and testified for the Respondent. He made no reference whatever to what transpired at any of the negotiating conferences but limited his testimony to saying that in his opinion the Union had lost its majority status toward the end of December 1958. He also offered testimony of facts upon which he based his con- clusion in this respect. As to what changes the Company had made in its treatment of the employees while Price continued the discussions with the union representa- tives, Black said nothing. The only witness for the Respondent on the subject of what occurred during the conferences or concerning the Respondent's good or bad faith, was its attorney, Mr. Price, who also acted as counsel for the Respondent at the trial. Price's statement from the witness stand, a running commentary covering 30 pages of the record, is mostly an argument or defensive explanation of his conduct and of the Com- pany's actions. He rambled on in conclusory phrases, and his remarks were so in- tertwined with argumentative exculpation of anything the Company did, that they are completely lacking in any positive, probative facts that can be called evidence or proof.2 2 The following is typical of Price's testimony : "Generally what Shippey said was correct-I don't recall details now" ; "I can't say in the final analysis" ; "I could be 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record having been made in this fashion , I consider Shippey's testimony as substantially not contradicted . I therefore credit it. The plant manager 's failure to contradict Shippey or the testimony of several other employees as to what tran- spired in the plant while the negotiations were going on, coupled with Price's ap- parent agreement .that Shippey related the story substantially as it occurred, makes Shippey's testimony the principal reliable evidence pertinent to the basic issue of the case. Subject by subject, therefore, the following are the facts upon which the main allegation of the complaint stands or falls: Wages The Union first demanded a specific wage increase at the third meeting on December 30, 1957, after it had received information from the Company concern- ing job classifications and wage structure . It demanded a 25-cent per hour across- the-board raise. Price's response was that he would not give 1 cent, that it was not good business then to give any raise . He also took the position that the Re- spondent's wage scales in the various classifications compared favorably with those of others in the same industry in the area. Shippey asked for a 10- or 15-cent raise for welders as a special , individual problem in the shop. Price refused this also. He remained absolutely adamant on the entire subject of wages •throughout all the conferences, saying at the February 24 meeting that he had made all possible con- cessions and would not change his position on anything. On April 23 , 1958, the Company wrote a letter to Shippey advising him that a wage increase to all classifications would go into effect on May 1, and explained it on the ground that increased production justified it. The new wage schedule, at- tached to the letter , reveals a raise for practically every employee in the plant, most of them 5 cents per hour. As Mr. White, a Federal conciliator , had participated in the last conference on February 24, Union Representative Shippey attempted to communicate with him, that he might again assist and arrange the next conference . In fact, White called Price on May 2 and said Shippey had asked him to set up a meeting . Price replied, according to his own story: "Well, as far as I was concerned , we had put the wage increase in, if that 's what the call was all about, but that if he wanted to meet and talk about it I'd meet and talk with him about it." The parties were unable to ar- range a meeting until June 5. Here, McGee , a district director of the Union, asked Price if he was willing to negotiate further on the raises, and Price said : ". . . he was willing to negotiate all right, but he was not going to give any more or grant any more than was in this document [the April 23 letter]." Morris, an employee, testified that his wage rate was reduced 10 cents per hour in the spring of 1958 and 2 weeks later restored . Hughes, a maintenance employee, testified that his rate went from $ 1.25 to $1.35 during the same period . He added all the maintenance employees were reduced 10 cents hourly for a week , and then raised again to $1.35. At one point he seemed to indicate the change in his own pay was occasioned by a promotion from temporary to permanent maintenance man. He was unequivocal , however, that the pay of all the maintenance men was changed also. These witnesses said that the Company 's letter announcing the wage raises in the spring of 1958, was posted on the company bulletin board before the raises went into effect. Their testimony stands entirely uncontradicted. Vacations On this subject, the Union proposed that the contract provide 2 straight weeks' vacations for men with 1 year of service and 3 weeks for employees with 5 years of service. Shippey testified that the Company's past practice had been to give vacations of 2 weeks off with 3 weeks' pay. Morris, who was with the Company for 4 years, and Hughes, who had worked 8 years, explicitly corroborated this as having been their experience with the Company. Sometime about September 1957, wrong whether it was one man or not" ; "I believe that is error [Price's immediately pre- ceding statement ]-just to show how you lose track of these things" ; "I made a state- ment to Mr. Shippey of some kind saying to him and I won 't say this is exactly what I said, because I really don't know exactly , but in essence I asked him . . . To support his conclusory statements, in an apparent effort to make his running commentary appear as factual statements of what occurred, Price more than once referred to a tape recording which he indicated was made during the conferences . He offered nothing, however, to substantiate his argumentative testimony. AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 915 the then manager of the plant, Bomar, posted a notice on the plant bulletin board announcing that vacations were "2 weeks off, 2 weeks pay." The record contains. no explanation of this announcement , which, on the total evidence , appears as a departure from the past practice of giving 3 weeks' pay and 2 weeks off. Price's counterproposal was that employees should receive 1 week's vacation with 2 weeks' pay. As in the case of wages, the Company never departed from this fixed position throughout all the bargaining conferences . Morris testified, again without contradiction, that whereas in both 1956 and 1957 he had received 2 weeks off-3 weeks' pay, in August 1958 he received only 1 week off with 2 weeks' pay. Hughes also received only 1 week off and 2 weeks ' pay in 1958, in contrast with his past experience. Pay Periods Another issue discussed between the parties was whether the Company should continue its past practice of paying the employees by semimonthly checks. The employees had long experienced difficulty calculating their overtime pay; the broken- week pay periods apparently confused them . Shippey kept asking Price to change the system to a weekly paycheck . Price persistently replied it was a bookkeeping matter he could do nothing about. During the conferences , Shippey and Morris asked that the Company explain precisely its method of computing overtime on the paychecks to them, so that they might in turn assist the employees to understand. Price refused to permit the union representatives to act as messengers in his respect. Instead, he told them expressly that each employee could go individually to the plant manager and ask for help in calculating his own overtime payment. In April 1959, with no advance notice to the Union or any discussion of the matter, the Company changed its pay schedule and established 2-week pay periods,. with checks at regular 2-week intervals. Insurance The Company had long maintained a group insurance policy for hospitalization and medical benefits to its employees. One of the first demands made by the Union was that the Company permit the Union to find a more generous group policy and that the Company change its insurance if the Union could find a policy at the same price with greater benefits. Shippey obtained and delivered to Price a substitute policy with another company, but Price said he could not discuss its merits. He added he would instead forward it to the.Company 's main office in Austin for study by the insurance experts. In the end, towards January 1959, Price informed Shippey the Company had decided not to change its insurance . However, in April of that year the Company announced that a new and different policy was in effect with another company; the employees were individually advised of this. The change was made without prior notice to or consultation with the Union. Seniority The record shows that before these bargaining conferences the Company followed a system of plantwide seniority at the Ranger facility. Bomar, the plant manager in 1957, in a speech to the assembled employees about 2 months before the repre- sentation election, said that the Company would continue to follow seniority as in the past . Morris and Hughes testified that in the past those employees who had been at work longest were offered the best jobs as new positions opened . The notice posted by Bomar several weeks after his speech , and still before the election, con- tained the following statement : "Seniority-as in the past, older employees get first chance at openings that occur that will better themselves ; if capable." One of the first union demands was that the Company incorporate in a proposed contract a straight seniority provision. At the first meeting, Plant Manager Black said that he had just changed seniority to "departmental ." The Company's reaction was to refuse an° seniority provision whatever. In its place, Price proposed an "efficiency first" caus?, under which the Company would be free to decide "selec- tion, retention of, promotion and advancement of employees " on factors entirely unrelated to seniority , such as "merit . . . ability, attitude, . depend- ability. ." The Company never deviated from this position . The Union per- sisting, on February 24, 195h , the Company furnished -a list of employees to Shippey as requested. The purpose w o to obtain information respecting the seniority status of all employees. The list supplied gave only names; it did not state the date of original employment . Shippey asked Price at this meeting to advise him when the seniority of each employee sLarted . Price replied that it "started fast Monday.'" '916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grievance Procedure The Union's proposal set out a detailed grievance procedure. It proposed four steps: (1) The aggrieved employee and his group steward to discuss directly with the foreman; (2) a grievance committee of three employees chosen by the Union to continue the grievance in writing to the plant manager; (3) a conference between .a company representative and a representative of the International Union; and (4) binding arbitration through an arbritrator selected from the Federal Mediation and Conciliation Service. The Company refused to agree. In counterproposal, the Company proposed: (1) The employee individually to present his grievance in writing to the foreman; the foreman to reply to the employee in writing; (2) the employee individually to appeal to the plant manager in writing; the plant manager or his representative to confer with the employee and a union representative [The Company's written proposal at this point is ambiguous. After providing that the manager would confer with "the employee and the union repre- sentative," it also provides: "the International Union representative may be present at such conference." It is not clear whether'this language would permit the union representative or representatives to act as agent for the employees.]; and (3) the manager's decision to be final, no arbitration, and, if the employee or the Union is unsatisfied , the Union to be free to strike without violating the no-strike clause which the Company also proposed. At the same time the Respondent also demanded that the contract contain a "Company Rights Clause" which, among other things, provided that "the company has full and unlimited prerogative to . . . administer discipline, select, train and .direct employees, make reasonable rules and regulations not inconsistent with this agreement, to determine the method of work . and in addition to the rights :specifically enumerated above to continue to exercise every legal and lawful power, right and privilege which it had prior to the signing of this agreement , unless spe- cifically abridged, changed or altered by the terms of this contract." Price never yielded from the Respondent's proposed grievance clause, company rights clause, and efficiency first clause, which was demanded as a substitute for the Union's request for seniority. Later in the conferences, the Union proposed reced- ing from its full grievance procedure request, to abandon demands for arbitration, and to settle this issue on the basis of having the Company recognize a committee .of three employees to handle grievances. Price throughout the conferences refused -to agree to recognize any employee grievance committee to speak on behalf of any .aggrieved employee .3 Bulletin Board The Union requested a bulletin board in the plant for exclusive use of union notices. First proposing a common bulletin board with company notices, Price later agreed. At his request, the Union had such a board made to fit Price's size specifi- .cations and brought it to the plant. The Company refused to permit the Union to use it, Price taking the position that the grant of such a board was a concession by -the Company to a union demand which could only be implemented in the event of final agreement on a comprehensive contract. Until such time as the parties could agree on a final contract, his position was that anything agreed upon must be held in abeyance. Christmas Bonus Another benefit which the Union demanded and was refused was the Christmas -bonus. For many years the Company paid a Christmas bonus to its employees. .Shippey demanded that the Company formalize its obligation to pay the bonus in a contract. Price refused to do so. Despite its past practice, the Christmas bonus -was not paid for Christmas 1957. The Company did pay it again in 1958. At the penultimate meeting, on December 19, 1958, the Union offered to abandon .all its demands, to accept and sign a contract exactly as the Company insisted, provided only Price would agree to add a revocable checkoff clause. The Respondent -refused . The Area of Agreement The Union demanded that the Company provide increased safety materials for -the employees, such as more first • -aid kits, shields, goggles, and fire extinguishing 3 There came a time when Shippey believed that Price bad agreed to recognize such a .committee of three employees. The record as a whole] however, shows that this was .a misunderstanding on his part. At the next meeti;mg following, when Shippey pre- sented such a proposal in writing, Price explained he had been misunderstood. Accord- ingly, I make no finding that the Company, with respect to this item, shifted position .during the negotiations. AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP . 917 materials. The Company acceded to this and installed additional work protection equipment and first aid materials in the plant. Shippey requested that an additional shower be installed for use of the employees; Price asked that the Union obtain it, the Union did so, was reimbursed for its cost, and the Company installed .the addi- tional shower. The Union also demanded and the Respondent agreed to incorporate in an eventual contract the following provisions: (1) 3-hour call-in; (2) a leave-of-absence clause; (3) employees working on round-the-clock shifts could continue to eat their lunch during the 8 hours of employment; (4) notice to the Union for plant changes in the schedule of the men; and (5) an established starting and quitting time. The parties also agreed upon a recognition clause, 365 days' duration for any eventual contract, and the Company to continue making ice water available for the men while they worked. Although there were frequent delays in arranging the various meetings, and long periods in some instances between meetings, the Company never refused to meet with union representatives or to discuss with them any of their demands. From the very start, however, Price began to inject an element of haste and seeming futility in the bargaining conferences. He started at the very first meeting by placing his watch on the table and announcing his time was very limited and he would be compelled to suspend during the conference to take care of other matters. He soon explained it was too inconvenient for him to meet during workdays, offering, however, to sacrifice his Sundays for the Union's benefit. In consequence, many of the con- ferences took place on Sunday. Soon he began to inject talk of an impasse, and the futility of discussing things further. Price opened the fourth meeting, on January 11, 1958, with: Gentlemen, it seems to me we've reached an impasse. It's useless for us to keep coming over to Ranger and rehashing a lot of this stuff. We are not going to change our minds; you are not going to change your minds, and it' s useless for us to keep coming over here and discussing some of these things.4 He continued to refer to impasse "quite often" during later meetings . Again and again in his letters to Shippey by which the two of them tried to arrange mutually convenient meeting dates, he reiterated phrases predicting failure of negotiations. On September 19, 1958: ". . . we have agreed that we have reached an impasse. . It seems to me that it is wasteful of everyone's time." Ten days later: "It would seem to me that the impasse still exists at this time. Of course, I am disappointed that this is so but as I said before I will bend over backwards in an effort to reach some understanding with you and even though I can't see that a meeting will do anything except `warm over' the same old discussion I will have one with you to see." On January 12, 1959: "This matter has reached the point of ridiculousness." In December 1958, as both Price and Plant Manager Black unequivocally said at the hearing, the Company decided that the Union no longer represented a ma- jority of the employees. From then on, this thought became an obbligato to Price's professed willingness to continue meeting with the Union and to "bend over back- wards" to reach agreement. Many of the letters exchanged in the early part of 1959, beginning in January, interwove the Company's offer to continue negotiations with repeated hints and even out and out assertions that the Union did not repre- sent a majority. Consistent with this position, Price at the hearing defended some of the unilateral actions taken by the Company in 1959 on the ground that the Company was not obligated to advise the Union in advance or to deal with it on management changes. In April 1959 the Union offered to prove its majority status to the Respondent's satisfaction before a representative of the Federal Mediation and Conciliation Serv- ice, an agent of the Labor Board, or an impartial resident of Ranger, Texas, accept- able to both parties. The Respondent ignored the suggestion. In further support of the main allegation that the Company was opposed to having a union in its plant, attempted to coerce its employees into defecting from the Union, and ultimately carried out its underlying purpose by going through sham bargaining with the Union, the General Counsel introduced evidence tending to show that such an unlawful attitude appeared from certain statements of its supervisory personnel. A few days before the union election of October 28, 1957, Kingsbery, the Respond- ent's president, visited the Ranger facility from his office in Austin, Texas. He told the assembled employees that "they did not need a bargaining agent to do their 4 Price closed the January 11 meeting with the statement : "If the union can't come around to the company 's thinking on the management rights clause and efficiency first clause, the company's grievance procedure . . . there's no need for us to meet anymore." 53 S28-60-vol. 125-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining, that they could organize their own group to take up their own grievances with the local management, and that if they did not get any satisfaction from the local management they could come to see him at Austin and he would pay their expenses." 5 Jimmy Vinson, a very young man employed by the Respondent , and his wife, Martha, who was a high school student in February of this year , testified to certain alleged antiunion statements made by Mann , who became plant manager in place of Bomar back in November 1957 and still held that position in 1959. Martha is a half-sister to Mann. Vinson testified that on January 26, 1959, Mann asked him if he, Jimmy, could find some men for hire , and added they should not be union men because Mann had enough of them. Jimmy added that on another occasion Mann said to him that if he ever found Jimmy's hat lying about the place , he would remove the union button from it and throw it "as far as possible ." Martha recalled a conversation also in February at her father 's service station, where her father, Mann, and Mann's wife were present. She said they were discussing her recent engagement to Jimmy Vinson and quoted Mann as having said, "If Bobby joined the Union he'd fire Bobby Green and make it hard on Jimmy." Bobby Green , another young man working for the Respondent , is a stepbrother of Mann. He testified that on April 1, 1959 , Mann asked him why he had joined the Union and said that because Bobby had done so , the plant manager could not help him a bit despite the fact he had "all lined up for me." Green also testified that a short time later, in a machine shop of one Reynolds, where he and Mann had gone in connection with work for the Respondent , Mann said to Reynolds, in Green's presence, that if Green joined the Union he, Mann , would "run him off." He also added that when asked what would happen if the men struck, Mann said that all would be discharged. Mann unequivocally denied each of the above statements charged to him by his relatives. I credit Mann's denials. Vinson explained that the remark about throw- ing the union button away was made to him as he stood warming himself by the fire at the plant. He could recall nothing else that was said at that time by either himself or his brother-in-law. I find it difficult to believe that a remark of this type between close relatives would be made in a vacuum . Martha, too , was unable to remember anything else that was said in the conversation at her father 's service station where four close relatives were present . She admitted the subject of her forthcoming marriage was brought up to some of those people for the first time that day, and that both her father and brother opposed her marriage because of her youth. Despite the fact that the subject of discussion must necessarily have been of great importance and emotional significance to her, she persisted being unable to remember anything that anyone else said except the single remark which she attributed to Mann . Bobby Green's story of what Mann said to him in Reynolds' machine shop was also flatly contradicted by Reynolds himself , who appeared and testified as an impartial witness . Moreover, in the demeanor of Mann, his sister , Marth, his step-brother, Green , and his brother-in-law, Jimmy Vinson , there appeared a no- ticeable hostility strongly indicated intrafamily discord at the moment . In the total circumstances thus presented , I am unable to credit either Vinson , Martha , or Bobby when they attribute unlawful language to their older relative. The last witness on this aspect of the case was Nowak , another employee, who testified that in September 1958 the plant manager asked him if he knew of a man available for work. According to Nowak, when he replied affirmatively, Mann inquired whether it was a "union man ," and then added that in such event, Mann did not want him in the plant. Mann also expressly denied having made this state- ment to Nowak. Analysis and Conclusion As stated above, this entire case turns upon the Respondent's good or bad faith in its dealings with the Union . Once the Union was certified by the Board as ma- jority representative of the employees , it became a duty of the Respondent , imposed by statute , to accord it exclusive representative status as the spokesman of all the employees , to deal with it-and with it only-on all matters relating to terms and conditions of employment, and to bargain with it in good faith . As is true in all proceedings of this type , it is not encumbent upon the Respondent to show that it did satisfy this statutory obligation; rather is it an affirmative burden resting upon the General Counsel to prove affirmatively that the Respondent did not bargain in 5 Factual finding of a Trial Examiner in Case No. 1G-CA-1057, adopted , in the absence of exceptions by the Respondent, by the National Labor Relations Board on January 14, 1959. AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 919 good faith.6 As good faith is essentially a matter of underlying attitude, or motiva- tion, it must necessarily be appraised with due consideration of an entire course of conduct, including many detailed aspects of events and all incidents bearing a sub- stantial relationship to the basic issue. No selective portrayal of the events, viewed out of context, can alone be determinative of the overall question. Thus, at first glance, if only the Respondent's ever willingness to meet with the Union, and the fact its representative did meet and confer with the union negotiators be considered, it would appear that the Respondent did engage in collective bargain- ing. These are, of course, the admitted facts which the Respondent points to in resisting the complaint allegation of bad faith. It has repeatedly been held, however, that meeting and talking do not necessarily satisfy the statutory requirement of good- faith bargaining, if in fact other events and conduct, considered together with the fact of talking, convincingly show that the employer approached the bargaining table with a pervasive intent never to reach agreement or to deny to the Union the ex- clusive recognition to which it is entitled by law? Similarly, refusal by an employer to concede any of the Union's economic demands, standing alone, is not proof of bad faith on its part. An employer is not required to make economic concessions to avoid a charge of bad-faith bargaining. If, however, extreme, unyielding and adamant insistence respecting virtually all the normal economic desires of a union is accompanied by other conduct indicative of an underlying resolve never to reach an accord, an employer's entire conduct, including inflexible denial of any economic concessions, may show bad faith in the statutory sense.8 Upon careful consideration of the entire record here, including every detail of the bargaining conferences and the proposals and counterproposals appearing in the evidence, I am convinced that the Respondent did not bargain with the certified union in good faith. I think the evidence as a whole shows substantially and affirmatively that while Price, the attorney who did all the talking for the Company, talked at length on any and all subjects with the union officers, and created a formal semblance of true collective bargaining, the Company-starting at the very outset of the meetings and continuing to the very last-carried on its affairs, conducted its business, and managed the employees without regard to any consideration of the employee's chosen representative. That the Respondent was antagonistic to the very idea of its employees having a union to speak on their behalf is revealed in ,the speech, already found unlawfully coercive by the Board in another proceeding, of its President Kingsbery, shortly before the 1957 election. It is one thing for an employer to prefer dealing with its employees individually instead of through a union-a preference which the statute does not condemn; it is something else again for the employer to attempt to establish a direct procedure for settlement of grievances at the very moment the employees are about to vote on whether they prefer collective bargaining-a privilege the law expressly guarantees them.9 In any event, Kingsbery's action set the tone of the Respondent's basic attitude in advance of the meetings between Price and Shippey, and sheds a revealing light in explanation of many of the events which followed later. Throughout the first six conferences, one of the major concerns of the Union was a demand for wage increases; it asked for 25 cents per hour. Price refused any increase, insisting throughout that business considerations made it inadvisable and that the Respondent's rates compared favorably with those of other companies in the same activity in the area. Indeed, Price held firmly to this position throughout all the meetings clear to April 1959. And yet, without first discussing it with or offering it to the Union for consideration, on April 23, 1958, the Company announced a general wage increase, and put it in effect unilaterally. Nothing can indicate more persuasively an employer's intent to ignore the employees' chosen representa- tive than to bypass it completely in the matter of wage increases-usually, as in this case, the principal interest of the Union. Although the raises so granted varied with different classifications, they did not result from any change in methods of opera- tions, or changes in job content and work duties. The announcement itself un- equivocally stated that the wage increases were a direct result of improved efficiency and productivity in the plant. As Price had justified his consistent denial of any increase on the ground that business did not warrant it, it behooved him particu- ]arty, once the plant achieved a more efficient operation, to bring the changed e N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 409. o Southern Saddlery Co., 90 NLRB 1205; N.L.R.B. v. Whittier Mills Company, et al., 111 F. 2d 474, 478 (C.A. 5). 8 Marton. G. Denton, et al., d/b/a Marden Manufacturing Company, 106 NLRB 1335, enfd. on this point, 217 F. 2d 567 (C.A. 5), cert. denied 348 U.S. 981. 0 Ore-Ida Potato Products, Inc., at at., 123 NLRB 1037. 920 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition to the Union's notice. Had he truly been trying to reach accord with the Union, I think he would have made whatever offer was then possible to the Union in an effort to achieve contractual agreement. I make no unfair labor practice finding based upon this disregard of the Union's agency status and direct unilateral change in wages back on May 1, 1958, because it occurred more than 6 months before the filing of the charge.'° However, as in the case of the unlawful speech by President Kingsbery in October 1957, this independent action further emphasizes the Respondent's intention to ignore the Union in its dealings with the employees, while simultaneously carrying on what was only ostensible bargaining towards an agreement with the Union." Arguing that it did not bypass the Union by this action, the Respondent contends that the raises followed an impasse in the negotiations and that it was the Union which chose not to discuss the raises after being advised of the Company's intention. At the end of the last preceding conference, on February 24, to which the Union had called a Federal mediation conciliator, the Respondent's firm position was that it would yield on none of the Union's economic demands, including wages. It never receded from insistence that there could be no raises whatever. Agreement had been reached on several very insubstantial, mostly procedural matters. The Union in turn refused to accept the Company's proposed contract, which in essence re- flected denial of the Union's demands and reserved to the Company exclusive authority in many areas of employment conditions over which the Union was deeply concerned. Clearly, these conflicting positions added up to disagreement between the parties. What legal import Respondent's counsel would add to the then situation by characterizing it as "impasse," or by what legal theory he would reason that in .consequence of the disagreement, the Respondent was relieved of its duty to bargain 6 months after the certification, and be free to grant raises at will as through the Union did not exist, I do not understand. Counsel for Respondent cited no law or precedent at the hearing, and he filed no brief either in explanation or support of his position. This is not the case where a company offer is adamantly refused by the union to the extent where further discussion becomes futile and the employer may be justified in putting the rejected wage raise in effect for economic reasons. No offer was ever made to this Union. The contention that the Company desired to negotiate the proposed raises and that the Union refused to do so is equally without merit. The letter of April 23 merely set out the new wage rates gas something "we propose to do, effective May 1." The next sentence reads: "Our attorney advises us that the law requires that we meet with with [sic] the representative of the employees and discuss such changes. There- fore, I suggest that you contact Mr. John Price, in Fort Worth, concerning any such discussion." Shippey, who received the letter, was unable to reach the Federal conciliator for a few days. The latter called Price on the telephone on May 2, to arrange a meeting. The Company did not wait, but proceeded immediately to carry out its announced intention. As I read the April letter, it was not an invita- tion to the Union to consider and discuss the raises as a counterproposal to the Union's wage demands. It announced a flat coupled with lip service to the statutory duty to bargain with the Union. Unmistakably implicit in its language is the thought that if the union representative wished he could talk with Price, but that, talk or no talk, and quite regardless of what might be said, the Respondent was going to do exactly what it had announced. In fact, the letter had already been posted in the plant bulletin board. As will appear in later unilateral actions of the Company, this was the start of the Respondent's program to have Price talk with the Union on any -and all subjects, while the Company continued to run its business, and make any changes it saw fit in terms and conditions of employment, as though the running of the plant and the discussions which Price carried on with the Union bore no relationship one to the other. The Union demanded a contract clause providing for progressive vacation benefits with a minimum of 2 weeks. Price refused to grant it and instead proposed a re- duction in past vacation benefits. In the past, up to and including 1957, the employees had enjoyed at least 2 weeks off with 2 weeks' pay. Again the Respondent never yielded its position on this subject. During 1958, however, and again without either notice or consultation with the Union, the vacation benefit was reduced by the Company. Another substantial demand of the Union was for a seniority clause, pl^antwide among capable employees. This had been the Company's past practice. Price refused to agree to such a clause now that a contract was in the offing. He made it quite clear, both during the conferences and at the hearing, 10 See Section 10(b) of the statute. "Senorita Hosiery Mills, Inc., 115 NLRB 1304. AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 921 that the Company simply did not wish to be bound to continue its past method of operation. In its place he proposed an "efficiency first clause," whereby the Union would agree that the Company was to be the sole judge on promotions, merit raises, layoff, etc. Thus, what in the past the Respondent had done without a union, and might well continue to do in the future, it was not willing to do as a "contract matter" with the Union in the picture. A peep into the Company's intransigent attitude towards the entire concept of collective bargaining is possible through Price's remark, at the February 24 meeting, that the employees' seniority at that time dated back to "last Monday." Still another issue on which Price started with a fixed position and never waivered, arose from the Union's proposal for a grievance procedure in the contract. It proposed that at the first stage an employee, together with his steward, discuss the matter with the foreman; at the second stage a committee of three continue to process the grievance with the plant manager; and that the third stage be binding arbitration. The counterproposal was that at the first step only the employee take up the matter with his foreman; at the second step the employee process the grievance further with the plant manager, with permission to a union representa-% tive to be present; and that thereafter, if the employee and the Union were not satisfied, the Union could strike without violating any possible no-strike clause in the contract. Price consistently refused to agree throughout all the meetings that a committee of employees be permitted to function as part of the grievance procedure. He also refused to agree to any appeal directly to Kingsbery, the Respondent's president, despite the fact that before the election, apparently as an alternative to union representation, Kingsbery had himself told the employees they could turn to him if not satisfied in the plant, with the Company even paying their travel expense. But refusal to permit the Union to represent the employees in their grievances is one of the most persuasive indicia of an employer's rejection of the principal of collective bargaining and of his refusal to accord the Union true representative status. 12 There were other items in dispute, each concerned with an aspect of employ- ment in which the Union sought to obtain concessions from Price only to be met throughout with flat refusals. Price ignored the Union's demand that the men be paid by weekly, instead of semimonthly, checks, so that they might better under- stand their overtime pay formula. There may have been merit in the Respondent's claim throughout that any change would inconvenience its bookkeeping department; there can be no good-faith explanation of its refusal to explain the method of cal- culation to the union representatives so that they could discuss it with the employees and assist them. In April 1959, again with no advance notice to anyone, the system was changed to biweekly paychecks.13 Shippey tried to prevail upon the Company to change its group hospitalization insurance policy to a more desirable one. The Respondent insisted it would make no change. However, in the spring of 1959, the employees were notified the old policy had been replaced with one from another company; neither the Union nor the employees had advance notice of the change. Shippey asked that the Company place the Christmas bonus which it had always paid into its basic wage structure; the Company refused. Price justified the refusal on the ground that the Company wished to retain a free hand on that subject. For the Christmas of 1957, which followed the election of the Union by 2 months and the first bargaining session by 1 week, the Company discontinued the Christmas bonus. For the Christmas of 1958, by which time the Company had decided that the Union no longer represented a majority of the employees, the bonus was restored! 14 In defense of its independent action in 1959, the Respondent candidly admits that as early as December 1958 it decided the Union no longer represented a majority. It now argues its unilateral action was therefore in no event improper. In the circumstances of this case, I find the defense of loss of majority without merit. A majority status once shown is presumed to continue.15 And this is especially true 12Bethlehem Steel Company, Shipbuilding Division, et al., 89 NLRB 341, enforcement denied on other grounds, 191 F. 2d 340 (C.A., D.C.). 13 Price explained away this unilateral action by the Respondent by saying, from the witness stand, that the change had been deemed advisable by the Company, for reasons which Price himself said he did not know, in consequence of an FLSA check of the Company's book. Like most of Price's statements as a "witness," this explanation amounted to no more than an attorney's defensive assertion. 14 Iron Castings, Inc., 114 NLRB 739, 745. 's E. A. Laboratories, Inc., 80 NLRB 625, 683, enfd. as modified 188 F. 2d 885 (C.A. 2), cert. denied 342 U.S. 871. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respecting a certification issued by the Board.16 If the Respondent in good faith doubted the Union's continuing representative status, it was privileged to have it put to a test in a Board-conducted election by filing a petition. Instead it high- handedly arrogated to itself the authority to resolve the question adversely to the Union, while rejecting the Union's offer to prove its majority again. It had no reasonable foundation for its conclusion.17 In these circumstances, not only was its unilateral action an out and out bypassing of the Union, but Price's repetitive assertions, in his communications with Shippey, that the Union did not represent the employees served all the more to render what negotiations did take place only meaningless words. The foregoing are the substantive facts upon which the General Counsel rests his charge of bad faith. He suggested others, which I do not consider of material significance. The shift hours of some employees were changed and when "round the clock" operations on some machines were discontinued, the operators were asked to take time off for lunch instead of eating on company time. These would appear but normal incidents in the day-to-day operation of any plant. As the Respondent's counsel argued at the hearing, there are also some facts indicating that the Respondent really bargained with the Union. Agreement was reached on a number of subjects. Although these seem to be many, in substance they are few. The leave-of-absence clause, provision for starting and quitting time, advance notice to the Union of changed work schedules, and call-in time, are matters of substance, although all but the last do not pertain to economic demands because they involve neither cost to the employer nor money benefits to the employees. Agreement on the phrasing of the recognition clause, on a 1-year term for the contract, and on the Company continuing to furnish ice water during the hot months, can hardly be called effective settlement of issues in dispute in collec- tive bargaining. Likewise with what Price called agreement in overtime schedules. The Union wanted overtime rates for more than 8 hours work daily, and double time after 16 hours. The counteroffer was time and a half for over 40 hours weekly. This was not only what the Company had always done, it was also a minimum legal requirement. In these circumstances, any "acceptance" by the Union was only abandonment of a lost cause. On the total evidence I find that the Respondent, from and after August 10, 1958, did not bargain with the Union in good faith, and thereby committed an unfair labor practice in violation of Section 8(a)(5) and (1) of the statute. The Re- spondent's never changing and adamant total rejection of virtually all the Union's economic demands, its concomitant concessions directly to the employees of some 1° Ray Brooks v. N.L.R.B., 348 U.S. 96. "The Board recently had occasion to treat with an employer's doubt concerning a union's continued majority status after the end of the certification year. In Stoner Rubber Company, Inc., 123 NLRB 1440, the Board considered an employer's rights- whether it could raise a question concerning representation, whether it could suspend bargaining, whether it could take unilateral action-where an employer "in good faith" had "a reasonable basis" for doubting the union's continued majority. Implicit in that decision is the rule that when the employer does not act in good faith or does not have a reasonable basis for doubting the majority, it violates the statute if it deals with the employees directly instead of through their union. On this point, the Stoner decision only reaffirmed earlier Board and court decisions. In the instant case the parties stipu- lated that there were 47 employees in December 1957 and 46 in December 1958. In the October 1957 election, 31 voted for the Union and 12 against. (The remaining employees apparently were supervisors or otherwise ineligible to vote. Manager Black's testimony that in November 1957 there were 52 employees on the payroll, is not explained on the record, although inconsistent with the stipulation of the Respondent.) Of the 1957 complement, 17 left the Respondent's employ by January 1959, and 13 or 14 new em- ployees were at work. Apart from these turnover figures, the only other evidence offered by the Respondent to establish a "reasonable basis" for its doubt of majority, was Black's testimony which, because of its illusive vagueness, I consider completely worth- less. "Some of the people who wore buttons took them off and put them back on and this, that, and the other." "I didn't have just one, two, three count, but in appearance of what I noted there being from day to day, it looked like a diminishing number." Three employees "wondered why the situation was as it was since he didn't feel like that was being represented by the Union, and that the majority of them were not." No reason appears on the entire record for any assumption that all the employees who left had voted for the Union originally or that the replacements did not include both pro and antiunion employees. Celanese Corporation of America, 95 NLRB 664. AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 923 of the very benefits denied to their union-both before and after the statutory cut- off date fixed by the Act , its substantial refusal to permit the Union's grievance committee to process grievances on behalf of individual employees , its insistence upon reserving to itself unilateral determination of the terms and conditions of employment-appearing in the combination of its rejection of any seniority rule with demanding a "company rights' clause" and an "efficiency first clause"-plus its negotiator's repeated expressions of futility in the conferences and of doubt of the Union's majority status, leave no doubt that the Respondent engaged in nego- tiations with a predetermination not to make any real concession to the Union and to reserve to itself the unilateral power to decide matters of earnings , grievances, and other conditions of employment . This attitude is incompatible with a bona fide endeavor to reach an understanding with the chosen representative of the employees, and manifests the negation of the collective bargaining envisaged by the Act. In the light of the Respondent 's proven antiunion attitude, I also credit the testimony of Nowak that Plant Manager Mann told him he did not want to employ any prounion applicant . This statement by the plant manager had the necessary effect of coercing the employees in their free exercise of the rights guaranteed in Section 7 of the Act , and therefore constituted a violation of Section 8(a)(1) of the Act chargeable to the Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with its operations set forth 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 It has been found that on August 10, 1958, and at all times thereafter the Union was the authorized and exclusive representative of the Respondent's employees in an appropriate unit for the purposes of collective bargaining , and that on and after said date the Respondent refused to bargain in good faith with said representative in violation of the Act. Accordingly, I shall recommend that the Respondent be ordered to bargain, upon request, with the Union as the authorized and exclusive representative of its employees in the appropriate unit. In view of the nature of the unfair labor practices found to have been com- mitted on the record in this case , and of the unfair labor practice found to have been committed by the Respondent in the immediately preceding unfair labor practice proceeding, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guar- anteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Stone & Allied Products Workers of America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. American Aggregate Company, Inc ., and Featherlite Corporation, are em- ployers within the meaning of Section 2(2) of the Act. 3. All production and maintenance employees at Respondent's Ranger, Texas, facility, excluding office, clerical and professional employees , guards, and all super- visory employees as defined in the Act, constitute , and have at all times material to this proceeding constituted , a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. United Stone & Allied Products Workers of America, AFL-CIO, was, on August 10, 1958, and at all times since has been, the exclusive representative of all the employees in the aforesaid appropriate bargaining unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively in good faith with the Union as the exclusive representative of the employees in the aforesaid 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. 6. By the foregoing conduct, and by telling its employees that the Respondent would not employ union members, the Respondent has interfered with, restrained, 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerced employees in the 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)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Willamette Association of Plumbing and Heating Contractors, Inc.; Hoffman Engineering Co.; Buchanan Co., Inc.; W. T. Lord and George A. Lord, d/b/a Lord Bros., Contractors; Widmer Plumbing & Heating Co. and Plumbers and Steam- fitters Local Union No. 347, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Case No. 36-CA-772. December 18, 1959 DECISION AND ORDER On July 15, 1958, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondents, Willamette Association of Plumbing and Heating Contractors, Inc., and Hoffman Engineering Co., herein called Association and Hoff- man, respectively, 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. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in Respondents' exceptions to the Intermediate Report. The issue presented here is whether the General Counsel proved by a preponderance of the evidence that the Respondents locked out their employees. The facts may be briefly summarized as follows : The Respondent Association is comprised of employers engaged in the business of plumbing and heating contracting in and near Salem, Oregon, for which members it engages in collective bargaining.' Respondents Buchanan Co., Inc., W. T. Lord and George A. Lord, i The Employers comprising the Association had formerly been members of another association, Local Joint Industry Board, which had negotiated individual agreements for each employer. The current Respondent Association was formed sometime prior to the events herein for the purpose of multiemployer bargaining . The individual contracts negotiated by Local Joint Industry Board were due to expire February 28, 1957. -125 NLRB No. 94.