Texas Industries, Inc.

TEXAS INDUSTRIES, INC., ETC . 365 The provisions of this notice relating to the discrimination against Linnenberg shall not be taken to apply to International Longshore- men's Association, Independent, and the provisions of this notice relating to the payment of backpay and the reimbursement of percent- ages shall not be taken to apply to C. B. Morrow. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, IND., Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 1351, STEAMSHIP CLERKS AND CHECKERS, INTER- NATIONAL LONGSHOREMEN'S ASSOCIATION, INC., Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- B C. B. MORROW (Business Agent, Local 1351) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone Number, Capitol 8-0611, Extension 296, if they have any question concerning this notice or compliance with its provisions. Texas Industries, Inc.; and Dallas Lightweight Aggregate Com- pany, Texcrete Structural Products Company, Texcrete Mosaic Company, and Texcrete Company, Divisions of Texas Indus- tries, Inc. and International Hod Carriers, Building & Com- mon Laborers Union of America Local 518. Case No. 16-CA- 1565. October 23, 1962 DECISION AND ORDER On April 26, 1962, Trial Examiner Lloyd A. Fraker issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 139 NLRB No. 22. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the General Counsel's exceptions and brief, and, as it finds merit in some of these exceptions, hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. 1. The Trial Examiner found in his Intermediate Report that the charge filed in this proceeding did not support certain allegations in the complaint of violations of Section 8 (a) (1). We do not agree. The original charge, filed on October 26, 1961, alleged that the Re- spondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. As a basis for these violations, the charge further alleged that, on or about September 18, 1961, the Respondents laid off Henry Tadlock because of his membership in and activities on behalf of Local 518, Interna- tional Hod Carriers, Building & Common Laborers Union of America, and, by other acts and conduct, interfered with, restrained, and coerced "the above-named employee" in the exercise of the rights guaranteed by Section 7 of the Act.' The complaint, on the other hand, alleged, inter alia, that the Re- spondents had violated Section 8(a) (1) by their conduct toward employees other than Tadlock. At the hearing, the Respondents moved to dismiss such allegations of the complaint on the ground that they were not supported by the charge. The Trial Examiner denied the motion and received evidence on all the alleged violations of Sec- tion 8 (a) (1). In the Intermediate Report, however, the Trial Ex- aminer reversed this ruling, refused to consider evidence of any con- duct by the Respondents which did not directly involve Tadlock, and recommended dismissal of all such allegations on the ground that the charge did not allege violations with respect to any individual other than Tadlock. It is well established that a charge is not a pleading, but merely serves to initiate a Board investigation to determine whether a coin- plaint shall be issued. Subject only to the requirement that there must be some relationship between the allegations in the complaint and the language of the charge, it is the function of the complaint, and not the charge, to serve notice upon a respondent of the particular conduct alleged to be violative of the Act. Where, as here, the charge alleges, in general language, that Section 8 (a) (1), as well as 8 (a) (3), have 1 The amended charge, filed November 16, 1961 , was identical in these respects to the original charge. TEXAS INDUSTRIES, INC., ETC. 367 been violated, without particularizing the conduct alleged to be viola- tive of Section 8(a) (1), the charge is sufficient to support the specific allegations in the complaint of Section 8 (a) (1) conduct during the 6-month period preceding the service of the original charge, and subsequent thereto. We therefore find that the charge was adequate to support the entire complaint 2 2. Undisputed evidence shows that, shortly after the complaint issued, Nelson, one of the Respondents' attorneys, and Personnel Man- ager Logan separately interviewed a total of 147 of the Respondents' 200 employees. Each employee interviewed was told by his foreman, during working hours, to report to the office, where Nelson or Logan, in the presence of a supervisor, read to the employee a statement to the effect that a complaint had been issued by the Board, and asked the employee if he had any objections to telling what he knew about the case. The employee was then asked a list of questions, including the following : Have you talked to an agent of the NLRB about this case? If answered yes, state who, what, when, and where. Did you give a sworn statement? What, if anything, did you tell the agent of the NLRB? Do you object to giving us a copy of the statement you gave the NLRB? Will you sign a request for the NLRB to send a copy of your statement? After the interviews were concluded, four employees were picked up at the Respondents' Dallas plant, during working hours, by two supervisors in a plant official's automobile. After they left the plant, the supervisors told the employees they were going to Fort Worth to get copies of their Board affidavits. At Fort Worth, Attorney Nelson joined the group. They then proceeded to the Board's Re- gional Office, where they obtained a copy of one employee's affidavit, and to the homes of the other three employees, where copies of their affidavits were obtained. When the group returned to the plant, the affidavits were turned over to Price, another of the Respondents' at- torneys. Price interviewed each of the four employees in a private office, in the presence of a supervisor. Price read each employee's affidavit to him, and asked him whether the statements therein were true, and questioned him about the details of the incidents referred to in his affidavit. The Board has held that such statements given to Board agents are confidential, and that an employer's demands on employees for copies thereof or interrogation about their contents necessarily exerts an 2 N L.R.B v Raymond Pearson, Inc., 243 F. 2d 456 (CA 5) ; Triboro Carting Corpora- tion, 117 NLRB 775. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inhibitory effect on the willingness of employees to make such state- ments, and thereby interferes with employees' exercise of their rights under Section 7 of the Act.' We therefore find, contrary to the Trial Examiner, that the Respondent, by the above conduct, violated See- tion8(a) (1). 3. The complaint also alleged that the Respondents violated Sec- tion 8 (a) (1) by threatening to abolish the employees' credit union if the Union won the election scheduled to be held by the Board. At the hearing, testimony was presented by some of the General Coun- sel's witnesses that Production Manager Sewell had written a letter to all employees before the Board election in which he threatened to abolish the credit union if the Union won. The Respondents then introduced in evidence a copy of a printed letter which was the only letter Sewell wrote to the employees before the election. In the Intermediate Report the Trial Examiner discussed only the last para- graph of this letter, which he found, and we agree, did not contain a threat to abolish the credit union. However, the Trial Examiner made no reference to other paragraphs in this letter which the Gen- eral Counsel contends in his exceptions were violative of Section 8 (a) (1).4 The letter contained the following two paragraphs. There is only one way a union representative can enforce his demands upon the Company. This is by calling a strike. When you strike, you will lose your wages and possibly your job. The Company is free to hire someone to take your place while you are striking and when the strike is over there may not be a job for you. You know that under union methods we would not have been able to operate with continuous employment for you during the past year. Good pay checks depend upon continuous full time employment. We find that the Respondents, by these statements, indicated to their employees that the designation of a union representative would inevitably lead to strikes, lower wages, and loss of jobs, as well as the discontinuance of full-time employment. Such threats of economic loss, should the union win the election, clearly constituted interference, restraint, and coercion of employees in the exercise of the rights guar- anteed by Section 7, in violation of Section 8 (a) (1) of the Act.' 8 Hilton Credit Corporation, 137 NLRB 59 , footnote 1 ; Corpus Christi Grain Exchange, Inc., 132 NLRB 145 (Intermediate Report). d Although the complaint did not allege that the letter itself was unlawful, the Respond- ents introduced it and relied on it as a defense The legality of the entire letter was thereby put in issue by the Respondents Moreover, the facts with respect thereto were fully litigated See Seaboard Terminal and Refrigeration Company, 114 NLRB 1391, footnote 11. 6 Member Leedom would find that the statements in the Sewell letter constituted per- missible predictions, which the Union had ample opportunty to refute, and, therefore, that they did not violate the Act. TEXAS INDUSTRIES, INC., ETC. 369 4. On the basis of the entire record and the Trial Examiner's credi- bility resolutions, which we adopt, we concur in his finding that the Respondents did not violate the Act by the discharge of Henry Tad- lock. While Tadlock was the leader of the union activity, obtained authorization cards from 40 employees, and was the union observer at the Board election conducted on June 30, 1961, the evidence fails to establish that he was terminated for discriminatory reasons. In September 1961, it became necessary for economic reasons to reduce production in the block plant cubing department, where Tad- lock was employed as a forklift operator, by 25 percent. At a man- agement meeting on September 15 attended by Spraggins, the pro- duction manager of all the Respondents' operations, and Cook, production superintendent of the block plant, it was decided to dis- continue the cubing department night shift. Upon inquiry, it was learned that the foreman of the prestress plant, where work was picking up, could use men experienced in that work. As five of the night shift employees had had such experience, it was decided to trans- fer them to prestress. The prestress foreman was also persuaded to take an additional employee who had no prestress experience but whom Cook particularly wanted to keep because he was available for night work. It was then decided that a forklift operator job could be eliminated. Cook selected Tadlock for layoff after examining the personnel folders of the department's four forklift drivers. At the hearing, Cook explained that it was his policy to lay men off accord- ing to seniority if everything else, such as qualifications, ability, and willingness to do the job, were equal; that he selected Tadlock for layoff because Tadlock had the least seniority of the four forklift drivers,6 because his production was less than that of the one other driver doing the same work, and because of his poor attitude toward the Respondents; that by poor attitude he had reference to Tadlock's recent complaints that the Respondents had "cheated" him out of his earnings by the operation of a new timeclock, and similar complaints in terms of "cheating" him on other occasions. Whe Cook informed Tadlock of his layoff for the foregoing reasons, Tadlock asked Cook whether there was any other job in the plant he could fill, but Cook replied there was not. Cook testified that Tadlock had no experience in the prestress plant, and for personal reasons had been unable to work nights. Tadlock was laid off on September 18. Four cubing production employees were also laid off in the reduction in force, one on the same day as Tadlock and three in October. None have been replaced. 9 The three forklift drivers in this department , all with greater seniority than Tadlock, were: Betts, Golden, and Valesquez . The dissenting opinion refers to forklift drivers with less seniority than Tadlock who were nevertheless retained . These individuals , however, worked in different departments, and it was not Respondent's practice to permit depart- mental "bumping." The record shows that departmental transfers , which are referred to in the dissent, occurred only in the event of job vacancies. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above facts clearly show that the Respondents decided to re- duce production for economic reasons, with the result that a reduction in personnel became necessary. The Respondents selected Tadlock, among others, for layoff because he was junior in seniority, his pro- duction rate was low, and he had several times accused the Respondents of "cheating" him with regard to his pay. Moreover, there was no job available to which Tadlock could be transferred, as there was for some of the employees scheduled for layoff, because he did not have their qualifications for such jobs. Accordingly, we find that the General Counsel has not established by a preponderance of the evidence that Tadlock's selection for lay- off was discriminately motivated, and, therefore, we find that his dis- charge was not violative of Section 8 (a) (3) of the Act. The General Counsel contends, however, that even if Tadlock's ter- mination did not violate Section 8 (a) (3), it was a violation of Sec- tion 8 (a) (1) because one of the asserted reasons for Tadlock's selec- tion for layoff was "his attitude," by which the Respondents referred to his complaints about the timeclock. These complaints, the Gen- eral Counsel continues, were protected, concerted activity. In sup- port of this contention, the General Counsel points out that the opera- tion of the new timeclock was a matter of concern to all the employees, and many of them had complained about it; that Tadlock had dis- cussed the timeclock with other employees; that, on one occasion, Tad- lock said to employee Valesquez : "Well, here comes Mr. Cook now. I think I will just ask him if he can fix my [time] card up"; and that Valesquez replied that, if Tadlock could get his timecard fixed, Vales- quez would do the same. The General Counsel also relies on the fact that Tadlock's foreman, Cottrell (who was not, however, consulted by Cook in selecting Tadlock for layoff) testified that Tadlock had told him, "The timeclock is cheating us." Tadlock himself, however, did not testify that he was speaking for anyone else. We find no merit in the General Counsel's contention. We have found that Respondents laid off Tadlock for economic reasons. Tad- lock's attitude as exemplified by his accusation of "cheating" was merely one of several peripheral circumstances considered by Re- spondents in deciding not to depart from the seniority standard normally used to select employees for layoff in a reduction in force. Accordingly, even assuming arguendo that Tadlock's "cheating" accusations could be regarded as a concerted activity within the mean- ing of the Act, we conclude that under all the circumstances of this case, it was not an operative factor in the discharge and that Respondents' selection of Tadlock for layoff did not abridge any Section 7 right in violation of Section 8(a) (1) of the Act.7 Y N L R B. v. Blue 13e11, Inc, 219 F. 2d 796 (C A. 5) ; Miller Electric Manufacturing Co , Inc v. N L R.B , 265 F. 2d 225 (C.A 7). TEXAS INDUSTRIES, INC., ETC. 371 THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in con- nection with its operations as set forth in the Intermediate Report, 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. THE REMEDY Having found that the Respondents engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Texas Industries, Inc., and Dallas Lightweight Aggregate Com- pany, Texcrete Structural Products Company, Texcrete Mosaic Com- pany, and Texcrete Company, Divisions of Texas Industries, Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Hod Carriers, Building & Common Laborers Union of America Local 518 is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interrogating employees in connection with, and obtaining copies of, their Board affidavits, and by threatening them with eco- nomic loss if they designated a collective-bargaining representative, the Respondents have violated Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) 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 Respondents, Texas Indus- tries, Inc., and Dallas Lightweight Aggregate Company, Texcrete Structural Products Company, Texcrete Mosaic Company, and Tex- crete Company, Divisions of Texas Industries, Inc., their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating their employees in connection with, and obtain- ing copies of, their Board affidavits in a manner constituting inter- 672010--63-vol. 139-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. (b) Threatening their employees with economic loss if they desig- nated a collective-bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self- organization, to form, join, or assist International Hod Carriers, Building & Common Laborers Union of America Local 518, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their plants in Dallas, Texas, copies of the notice attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondents' representative, be posted by the Respondents immediately upon receipt thereof, and be main- tained by them for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondents violated the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. MEMBER BROWN, dissenting in part : I dissent to my colleagues' failure to find that Tadlock was unlaw- fully terminated. My colleagues would minimize Respondent's consideration of Tad- lock's "attitude" by asserting that it was merely one of several "periph- eral" circumstances considered by Respondent in the selection of em- ployees for layoff. I believe however, that the record amply supports the conclusion that Tadloc's alleged "attitude" as illustrated by his complaint about the timeclock was a substantial factor in his selection. Respondent acknowledged this when Cook, production superintend- ent, testified that Tadlock's attitude was a factor considered and Cook 8 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 " TEXAS INDUSTRIES, INC., ETC. 373 then testified at length concerning various purported incidents exem- plifying this attitude. The events leading up to Tadlock's statement about the timeclock commenced with the installation of a new timeclock about 1 month prior to Tadlock's layoff. Thereafter the Respondent received ap- proximately 20 complaints from various employees concerning the timeclock's operation. Tadlock, who was known to the Respondent as the chief protagonist of the union organizing campaign, had dis- cussed the timeclock with other employees and told employee Vales- quez he was going to see if he could have his timecard adjusted. Valesquez replied that if Tadlock got his card fixed up, Valesquez would do the salve. The credited testimony of Foreman Cottrell is that Tadlock told him, "the timeclock is cheating us." Under these circumstances I would find that Tadlock in his complaint concerning the timeclock was engaging in protected concerted activity.9 My colleagues further find that in laying off Tadlock Respondent did not depart from its normal layoff standards and practices. I disagree. Superintendent Cook in testifying concerning company policy, stated that "In layoffs and job assignments and all, seniority rules if everything is equal." Both Cook and Production Manager Spraggins testified that employees were frequently transferred from department to department, and Foreman Cottrell stated that whenever possible men would be transferred rather than laid off. Cook also testified that he had praised Tadlock's work and that Tadlock was more dependable than Betts, a forklift operator who was retained. Addi- tionally the record reveals that Tadlock was senior to two other fork- lift employees, Wright and Trammel, who also were retained. Fi- nally, it appears that Cook took it upon himself to notify Tadlock of his layoff without prior consultation with Tadlock's immediate su- perior as was customary. In view of the foregoing, I would direct Tadlock's reinstatement with backpay as a remedy. U Walls DTanufacturtng Company, Inc, 137 NLRB 1317 ; Burnup <C Sams, Inc , 137 NLRB 766, NLRB. v Washington Aluminum Company, Inc., 370 U.S. '9, Salt Racer Valley, etc v. NLR.B., 206 F 2d 325 (CA. 9). APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees in connection with, or obtain copies of, their Board affidavits in a manner constituting 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT threaten our employees with economic loss if they designated a collective-bargaining representative. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in their right to self-organization, to form or join International Hod Carriers, Building & Common Laborers Union of America Local 518, or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for their mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. TEXAS INDUSTRIES, INC., Emnployer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 110 West Fifth Street, Fort Worth 2, Texas, Telephone Num- ber, Edison 5-4211, Extension 2131, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER 1. STATEMENT OF THE CASE A. The unfair labor practice charges and the complaint The original charge in this case was filed October 26, 1961, thereafter an amended charge was filed on November 16, 1961 . The complaint was issued on Novem- ber 21, 1961. In the original charge it is alleged that "Texas Industries , Inc., Subsidiaries and Divisions" had "laid o$" one Henry Tadlock, on September 18, 1961, because of hiN membership in and activities on behalf of Local 518, International Hod Carriers Building & Common Laborers Union of America and had, by such conduct (the layoff), and "by other acts and conduct . . . interfered with, restrained and coerced the above named employee in the exercise of the rights guaranteed in Section 7 of the Act," in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act. [Emphasis supplied.] In the amended charge it is alleged that Texas Industries, Inc., and Dallas Light- weight Aggregate Company, Texcrete Structural Products Company, Texcrete Mosaic Company and Texcrete Company, Divisions of Texas Industries , Inc., herein called the Respondents , had "discharged" the said Tadlock on September 18, 1961, because of his membership in and activities in behalf of said Union and had, by such con- duct ( the discharge ) and "by other acts and conduct . interfered with, restrained and coerced the above named employee in the exercise of the rights guaranteed in Section 7 of the Act." [Emphasis supplied. ] Since no individual other than Tad- lock is named in either of the charges, the respective so-called "catch all" allegations, which are quoted above, can apply only to him and there is no allegation in any charge before me, of any violation of the Act with respect to any individual other than the said Tadlock. Since both the original and the amended charge were filed by International Hod Carriers, Building & Common Laborers Union of America, Local 518 it will be hereinafter referred to as the Charging Party. TEXAS INDUSTRIES, INC., ETC. 375 B. The hearing and the briefs This case was heard by Trial Examiner Lloyd R. Fraker at Dallas, Texas, on January 9, 10, 11, 12, 15, 16, 17 and 18 and February 13, 1962. All of the parties were represented at and participated fully in the hearing. After the close of the hearing the General Counsel and the Respondents filed briefs in support of their respective positions both of which briefs have been fully considered by me in arriving at my findings and conclusions herein. C. Procedure At the hearing the General Counsel was permitted, over the Respondents' objec- tions, to amend the complaint by interlineation in the manner and to the extent indicated in his exhibit No. 1(e). Thereafter the Respondents were permitted to file an amended answer which is in evidence as the General Counsel's Exhibit No. 1(i). At the hearing and before any evidence other than the formal papers had been offered or received, the Respondents moved orally, on the record, for dismissal of the complaint in its entirety or, in the alternative, that it be dismissed as to para- graphs 10, 11, 12, 13, 13(a), 13(b), and 13(c) thereof. Briefly the grounds urged by the Respondents in support of said motion were, that the amended charge consti- tuted a departure from the original charge in alleging the discriminative discharge of Tadlock rather than a discriminative layoff as alleged in the original charge and that there were no allegations in either of the charges on which the allegations of paragraphs 10 through 13(c) of the complaint, could be properly based. I overruled that portion of the motion which was directed to the complaint in its entirety because the amended charge was not a fatal departure from the original charge since the discriminative termination of Tadlock's employment by the Re- spondents either by way of layoff or discharge would constitute a violation of both Section 8(a)(3) and (1) of the Act and because the amended charge was filed within 6 months after the alleged discrimination so that standing alone it would sup- port the alleged violations of Section 8(a)(3) and (1) of the Act. In any event the issue of Tadlock's termination whether by discharge or layoff was fully litigated at the hearing and no further amendment of the complaint was necessary or required. (See Rule 15(b) of the Federal Rules of Civil Procedure.) I overruled that portion of the motion which was directed at paragraphs 10 through 13(c) of the complaint under the complete misconception by me that both charges contained catchall allegations of violations by the Respondents of Section 8(a)(1) of the Act directed at employees other than Tadlock. That does not mean, however, that that portion of the motion was well taken, since it is impossible to determine from the language of the paragraphs of the complaint in question, whether or not some or all the alleged direct violations of Section 8(a)(1) of the Act which were alleged therein were directed at Tadlock as well as at other employees. Except for such misconception by me, of the allegations of the charges, I would have confined the evidence in support of those paragraphs of the complaint to direct interference with, restraint, and or coercion, by the Respondents, of Tadlock alone in his exercise of the rights guaranteed to employees in Section 7 of the Act. Therefore in arriving at my findings and conclusions herein I shall eliminate all evidence of direct violations by the Respondents of Section 8(a)(1) of the Act except such as might be considered to have been directed at Tadlock individually and/or at all of the Respondents' employees including Tadlock. I am proceeding in this manner because of the Board's decisions in Mid-States Steel & Wire Company, 112 NLRB 800 and New York Shipping Association, etc., 112 NLRB 1047 which indicates clearly that the allegations of a complaint may not go beyond the charge or charges on which it is based. IT. THE PLEADINGS A. The complaint as amended at the hearing 1. Jurisdiction of the Board As the basis for the assertion by the Board of its jurisdiction in this case the General Counsel alleged that the Respondents , operating as a single integrated enter- prise, are engaged at Dallas, Texas , in the manufacture , sale, and distribution of lightweight aggregate and other related structural products , that during the 12-month period immediately prior to November 21, 1961, they sold and shipped such prod- ucts, of a value in excess of $50.000, directly to customers in States other than the State of Texas and that now and at all times material to the issues herein they are and have been engaged in "commerce" as defined in Section 2(6) of the Act. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The status of the Charging Party The General Counsel also alleged that the Charging Party is a labor organization as defined in Section 2(5) of the Act. 3. The alleged supervisors and agents involved The General Counsel also alleged that Eldon Mays, Clyde S. Spraggins, Wendell P. Logan, Lewis W. Mims, Ernie Cottrell, Bert Cook, and Virgil Sewed are "super- visors" as defined in Section 2(11) of the Act, and inferentially, that John Edward Price and John B. Nelson, the Respondents' counsel, acted as its agents in the commission of certain alleged unfair labor practices. 4. The alleged violations of Section 8(a)(3) and (1) The General Counsel alleged in paragraphs 6, 7, and 8 of the complaint, the Respondents discharged Henry H. Tadlock on September 18, 1961, and have failed and refused to reinstate him all because he had joined the Charging Party or had engaged in other concerted protected activities, and thereby violated Section 8(a) (3) and (1) of the Act. 5. The alleged direct violations of Section 8(a)(1) In paragraph 10 of the complaint the General Counsel alleged that, during the period from about June 15 to 30, 1961, the Respondents, by the said Mays, Price, Cottrell, and Cook, questioned and interrogated their employees as to their union activities, their union membership, their attitude toward the Union (the Charging Party) and their voting intentions in an election i "in order to defeat the Union's campaign to organize" the Respondents' plants. In paragraph 11 of the complaint the General Counsel alleged that between June 26 and 30, 1961, the Respondents, through the said Price and the said Sewell, addressed various meetings of said employees in which they, Price and Sewell, threatened the employees with "abolition of its employees credit union if the Union should become" their certified representative. In paragraph 12 of the complaint the General Counsel alleged that on or about June 16, 1961, the Respondents, through the said Price, solicited the resignation of one of the employees "because of his activities in behalf of the Union." In paragraph 13 of the complaint the General Counsel alleged that during the period between April 15 and May 15, 1961, the Respondents, through the said Cook, threatened the employees with a reduction in wages if the Respondents "found out that they were in favor of the Union." In paragraph 13(a) of the complaint the General Counsel alleged that on or about December 28, 1961, the Respondents, through the said Nelson, Spraggins, Logan, and Mims, questioned and interrogated the employees and "thereby forced and com- pelled them to disclose the contents of their affidavits given to an agent of the Na- tional Labor Relations Board during the investigation herein " In paragraph 13(b) of the complaint the General Counsel alleged that on Decem- ber 28, 1961, the Respondents, through the said Nelson, Spraggins, Logan, and Mims forced and compelled the employees to "sign letters to the Regional Office request- ing that copies of their affidavits be transmitted to the Respondent." In paragraph 13(c) of the complaint the General Counsel on or about Decem- ber 28, 1961, the Respondents, through the said Nelson, Spraggins, Logan, and Mims "questioned and interrogated" the employees and "attempted to force and compel them to sign written statements to the effect that they had not been questioned or interrogated about their union activities nor threatened with loss of any of their benefits by the Respondents' supervisors." In connection with the allegations of paragraphs 13(a), (b), and (c) it should be noted that none of the allegations thereof constitute violations of the Act except by intendment and then only in the event that in so interrogating their employees the Respondents exceeded the limits which are permitted to them in the preparation of their defenses of the complaint. In any event there is no evidence in the record that Tadlock was so interrogated. B. The Respondents' amended answer In an amended answer to the complaint, filed at the hearing, the Respond- ents admitted all of the allegations of the complaint as to the facts on which 1 A Board election was conducted among employees of the Respondents on June 30, 1961. TEXAS INDUSTRIES, INC., ETC. 377 the jurisdiction of the Board herein was predicated, except the conclusionary allegation of paragraph 5 thereof, that they are engaged in "commerce within the meaning of Section 2(6) and (7) of the Act." The Respondents also admitted in said answer the status of Cook, Sewell, Spraggins, Mims, and Logan, as "supervisors" as defined in the Act but denied that either Cottrell or Mays were supervisors. The Respondents also denied in said answer, the alleged discriminative char- acter of Tadlock's termination and alleged affirmatively that he was laid off in an economic reduction in force and had not been replaced. Other than as indicated above the Respondents denied the allegations of the complaint. III. THE ISSUES TO BE RESOLVED As I view this case the issues to be resolved are: A. Did the Respondents terminate their employment of Tadlock and/or fail to reinstate or reemploy him, because of his membership in the Charging Party, his activities in its behalf and/or because of any other concerted activities in which he may have engaged? B Was any or all of the conduct alleged in paragraphs 10, 11, 12, 13, 13(a), 13(b), and 13(c) of the complaint, as to which the General Counsel has sustained the burden of proof, directed at Tadlock either individually or collectively with the other employees of the Respondents and, if so, did it tend to interfere with, restrain or coerce him in the exercise of the rights guaranteed in Section 7 of the Act? IV. THE EVIDENCE AND CONCLUSIONS THEREFROM A. As to the alleged discrimination in violation of Section 8(a) (3) and (1) As to the termination of Tadlock, if it was illegally motivated it makes no difference whether it was effected by discharge or layoff. It is true that "discharge" not "layoff" is alleged in both the amended charge and the complaint. The General Counsel also alleged, however, that the Respondents failed and refused to "reinstate" Tadlock and that both the termination and the failure and refusal to reinstate him were illegally motivated. Although I sustained the General Counsel's motion, at the conclusion of the evi- dence to conform the pleadings to the proof, insofar as "dates and first and last names, minor inconsistencies, such as typographical errors" were concerned it is clear that all parties and the Trial Examiner did not consider such amendment of the pleadings to include an allegation that Tadlock was laid off rather than dis- charged. Since that issue was raised at the inception of the hearing and was there- after litigated fully, under Rule 15(b) of the Federal Rules of Civil Procedure the failure to amend the complaint in that respect "does not affect the results of the trial" of that issue. It is undisputed that in September 1961 the production in the Respondents block plant cubing department had outstripped sales to the extent that storage capacity was filling up so that if production was continued at the then-current rate it would be necessary to shut down the operation completely during the winter months. Con- sequently on September 15, 1961, the Respondents decided to curtail production in that operation by 25 percent, at once.2 As a result of that decision the night produc- tion shift was discontinued on Friday, September 15, 1961, and six employees were transferred to the prestress plant of the Texcrete Structural Products Company Five of said transferees had had experience in the prestress operations, the other transferee was from the night shift and the superintendent of prestress was induced to take him, although he only wanted five experienced men, because Cook wanted to keep him in the Respondents' employ due to the fact that he was available for night work.3 On September 18, 1961, due to the installation of a new brick machine in the block plant, which permitted the cubing of one and one-half times as many brick with the same amount of labor, the operation of one of the three production belts was eliminated and this permitted the elimination of one of the four forklift oper- ators in the cubing department, where Tadlock was employed in that classification. In addition new forklifts with a greater capacity than those then in use and which would permit a further reduction of the labor force necessary to handle the block 2 This summarizes the credited testimony of Clyde Spraggins the production manager of the Respondents' entire Dallas operations, except trucking. 3 Previous to the reduction in force under discussion Tadlock had been transferred, at his request, to the night shift for a short time but had been returned to the day shift also at his request , when he found it impossible to keep away sufficiently to do his work and to drive to and from the plant without falling asleep. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant operations , were then on order for September 1961, delivery. They were not, however, actually delivered until the middle of October 1961. As a result of the reduction in sales and production and of the technological changes above described, Tadlock was selected by Cook for termination and was terminated on September 18, 1961 , because he had the least seniority of the four forklift operators then employed in the cubing department , because compared with the other such operator doing comparable work his production was less and because of his attitude toward the Respondents . Cook testified that Tadlock had accused the Respondents of cheating him through the operation of a new timeclock and on other occasions, once when his overtime was misfigured , on another occasion when he thought he was entitled to holiday pay at higher rate than the Respondents were paying, on another occasion when he was not satisfied with the Respondents makeup pay during a period when he was serving on the jury and on another occasion when he was not satisfied with hospital benefits given him by the Respondents during a period of hospitalization. Although Tadlock denied that he had ever accused the Respondents of cheating him, he admitted that he had raised the question of the holiday rate of pay with the United States Department of Labor and had told Cook that the new timeclock was not recording his time correctly . He also admitted that when the mistake in figuring his overtime pay was called , by him, to the attention of management it was corrected. Cook's testimony that Tadlock had accused the Respondents of cheating was corroborated by their witness Billie J. Smith, a pro- duction clerk in Cook's office and by their witness Albert Geer , the Respondents' maintenance foreman both of whom I credit. I have determined the issue of credi- bility raised by this conflict in the testimony of Tadlock and Cook by crediting Cook because of, such corroboration, his demeanor as a witness in giving full, complete and straightforward answers, without equivocation, to all questions propounded to him and because Tadlock, on the other hand , equivocated in his testimony as to whether he was discharged , laid off or cut off at the time of his termination . At first on direct examination by the General Counsel he testified that Cook discharged him later, on cross-examination , he equivocated as to whether he was discharged, laid off, or cut off. Tadlock was also evasive when confronted with his claim for unemployment compensation , a copy of which is in evidence as the Respondent's exhibit No . 4. In this connection I credit the testimony of Rodleigh Surrey, the State of Texas employee who took said application from Tadlock and who testified that Tadlock told him, when he was taking the claim, that he "was laid off by Mr. Bert Cook, supervisor, due to reduction in personnel." In view of the foregoing I am convinced that, on the occasion in question , Tadlock was laid off and not discharged. On this phase of the case the Respondents' seniority and its application in the lay- off of Tadlock must be considered In this connection Cook as well as other wit- nesses for the Respondents testified credibly, that in layoffs and assignments seniority governs "if everything else is equal. Meaning; qualifications, ability, willingness or desire to do the job, and so forth," and that "bumping is not permitted." Since the matter of seniority and its application is a management prerogative , except in cases where an employer is obligated contractually to follow a defined seniority policy and there is no evidence in the record in this case that the Respondents ' seniority policy is not uniformly applied, I cannot find that they were illegally motivated in laying off Tadlock. The General Counsel contends, however, that in complaining to Cook about a new timeclock, which had been installed by the Respondents shortly before his layoff, Tadlock was engaging in protected concerted activity because the manner in which the clock operated in recording their worktime was a matter of concern to all of the employees some of whom, other than Tadlock, had complained to manage- ment about it, he had discussed it with other employees, Mike Velasquez and Richard Bluitt, Jr., before complaining about it to Cook and his complaint was a contribut- ing factor in the motivation of his termination. No evidence was offered that the Respondents had knowledge of the fact that Tadlock had discussed the manner in which the new timeclock operated with employees Velasquez and Bluitt on the con- trary Tadlock testified positively that in complaining to Cook about the clock he did not mention any other employees but complained only about the manner in which his own timecard was punched Cook testified credibly that he laid Tadlock off because: he was junior in seniority as a forklift operator to the other three such employees in the cubing shed; his pro- duction was less than that of the other comparable operator; and because of his attitude toward the Respondents. He also testified credibly that Tadlock's com- plaint about the timeclock was a factor in the consideration of his attitude because he had accused the Respondents of "cheating" in connection with the timeclock TEXAS INDUSTRIES, INC., ETC. 379 incident. In the Indiana Gas & Chemical Corporation case (130 NLRB 1488) the Board held that where an employee had been discharged for engaging in protected activity, i.e., an anti versus a pro union argument about the Indiana "right to work" law, the discharge was not a violation of the Act where, as there, only the fact of the argument and not its protected character, was known to the employer at the time of the discharge. As I see it, that decision of the Board disposes of the issue under discussion contrary to the General Counsel's contention and I so find. The General Counsel also contends that the Respondents' admitted failure and refusal to reinstate Tadlock constitutes a violation of Section 8(a)(3) and (1) of the Act. After the hearing had been closed on January 18, 1962, on motion of the General Counsel I reopened and resumed it on February 13, 1962, for the limited purpose of receiving evidence of the Respondents' employment records and evidence relating to such records. At the resumed hearing I received in evidence an exhibit offered by the General Counsel as his exhibit No. 21. Said exhibit indicates that no one had been hired in the Respondents' cubing department since September 15, 1961, and there is therefore no basis for a finding that the failure to recall him to his former position constitutes a violation of the Act. Cook has no hiring authority for any of the Respondents' facilities at Dallas other than the block plant which is composed of the cubing department, the forming de- partment, the maintenance department and the aristocrat or glaze face facility. There is no evidence in the record that anyone has been hired in either of said departments since Tadlock's layoff and no evidence has been offered to show that he applied for employment to any of the Respondents' hiring personnel other than Cook. The General Counsel contends, however, that because Coleman Betts, one of the six employees who were transferred on September 15, 1961, from the block plant to the prestress plant of the Texcrete Structural Products Company, refused the transfer an opening was created to which Tadlock should have been assigned. This contention is not supported by the evidence since only five experi- enced men were needed in that department at the time of the transfer, Tadlock had had no experience and only one inexperienced man was included in the transfer because Cook wanted to keep him since he was available for and willing to work at night. Certainly under such conditions the prestress department could not have been required to accept an additional inexperienced man who was not available for night work. In view of the foregoing I cannot find that either Tadlock's layoff or the Re- spondents' failure and refusal to reinstate him constituted a violation of the Act. B. As to the alleged direct violations of Section 8(a) (1) Since there is no charge before me in support of the allegations of the complaint as to direct violations of Section 8(a)(1) of the Act other than the alleged acts of interference with, restraint and coercion of Tadlock, in the exercise of the rights guaranteed in Section 7 of the Act, I shall consider only the alleged conduct of the Respondents which relate to him, either individually or as one of the entire group of the Respondents' employees. (Mid-States Steel & Wire Company and New York Shipping Association, etc., supra.) Since some of the alleged direct violations of Section 8 (a) (1) of the Act, so to be considered, require a determination of the supervisory status of Ernie Cottrell and Eldon Mays, which the Respondents denied in their amended answer, I will dispose of such issues before proceeding to an evaluation of the evidence on this phase of the case. It is clear from the undenied testimony of Cottrell, as a witness for the Respond- ents, that he is a supervisor as defined in Section 2(11) of the Act. His testimony that he had authority to discharge employees and had done so, was not disputed or rebutted by any other witness. During the hearing the parties also stipulated that he was a supervisor within the statutory definition. In view of the undisputed testi- mony on this issue and of the stipulation I find that Cottrell is a supervisor as so defined. As to Mays there certainly was no such agreement of the parties and it is clear from his testimony and the testimony of Cook and Cottrell that he has and exercises no supervisory authority within the statutory definition with the exception of those infrequent occasions when Cottrell is not at the plant and even on such occasions he makes no decisions, other than of a routine nature, without consulting Cook. Even Tadlock's conclusionary testimony, by which the General Counsel sought to prove that Mays was a supervisor, clearly indicates that Cook makes the decisions when Mays is substituting for Cottrell I find therefore that Mays is not a super- visor within the statutory definition. Brooksville Citrus Growers Association, 112 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 707; West Virginia Pulp & Paper Co., 122 NLRB 738 and Lindsay News- papers, Inc., 130 NLRB 680. This finding as to Mays eliminates any consideration of the alleged conduct by him which the General Counsel contends constitutes violations of Section 8(a)( I) of the Act. I am eliminating from consideration the violations of Section 8 (a) (1) of the Act alleged in paragraph 13 of the complaint since there is no probative evidence in the record that Cook threatened the employees with a "decrease in wages" if the Respondents "found out that they were in favor of the Union ." Furthermore Tad- lock did not testify that Cook made any such threats in his presence or that, if made, it was communicated to him and the testimony of other employees on this phase of the case indicates only, that if he made the statements attributed by them to him, Cook was predicting the possible results of a strike at the Respondents ' plants. (Mylan- Sparta Company , Inc., 78 NLRB 1144, Chicopee Manufacturing Corporation, 107 NLRB 106, National Furniture Manufacturing Co., 106 NLRB 1300; Carolina Mirror Corporation, 123 NLRB 1712 and Safeway Stores, Inc., 122 NLRB 1369 ) I am also eliminating from consideration the violations of Section 8 (a) (1) alleged in paragraphs 13(a), 13 (b) and 13(c) of the complaint for the following reasons. In the first place there is no evidence in the record that any of the conduct alleged in those paragraphs of the complaint was directed of Tadlock . Secondly the evidence submitted in support of said allegations indicates only that the Respondents were interrogating their employees in an effort to prepare their defense to the complaint and that in so doing they did not exceed the permissible limits incident to preparing for the trial of this case . (Shields Engineering & Mfg. Co., 85 NLRB 168; Southern Furniture Manufacturing Company, 91 NLRB 1159 ; and Babcock & Wilcox Com- pany, 108 NLRB 1622.) Tadlock testified to three alleged incidents of interrogation directed to him by Cottrell one of which he placed as having occurred in the winter of 1961-62, during a lull in the Charging Party's efforts to organize the Respondents' plants which efforts had originated in October 1961. He testified that on that occasion Cottrell asked him : "What had happened to the Union ." Cottrell did not deny directly that he had so interrogated Tadlock but he did deny generally any interrogation of Tadlock and for the purpose of this discussion I credit Tadlock . In the context of the relationship between Tadlock and Cottrell, however, I do not find the incident in question to constitute a violation of Section 8(a) (1) of the Act. Both Tad- lock and Cottrell had been employees of railroad , both of them had been members of a union while so employed and the matter of unions generally had been the sub- ject of frequent discussions between them . The question is, on its face , innocuous and there is no indication that it was a part of an illegal campaign by the Respond- ents to defeat the Charging Party's organizational efforts. On another occasion Tadlock testified, on cross-examination, that he discussed the Charging Party with Cottrell about 3 weeks before the election .4 Although he could not recall what led up to the discussion when he was asked what was said about the "Union" he testified: Well, he more or less-in just a few words , he wanted to know about how I was doing with it, and I told him we was doing pretty good as far as I could tell; everything seemed to be going O.K. and that He said, "Well, I hope you do O.K . with it." From my observation of Tadlock as a witness in this case I do not credit his testimony as to this incident. His conduct and demeanor as a witness leads me to the conclusion that he was volunteering information about his part in the organizing campaign to anyone who would listen to him and that although he may have told Cottrell, on the occasion in question, that he and the charging Party were making progress in their efforts to organize the Respondents' employees , I am convinced that Cottrell did not ask him how he "was doing" with the Chargine Party's organiza- tional campaign. Tadlock impressed me as a most voluble individual and I am convinced that his volubility caused him to conjure up this testimony when he found himself in a position where he had to make a specific answer to a question , on cross- examination and could not do so without temporizing Tadlock also testified that about a week before the election Cottrell just caught him by the arm and asked him "what percentage the plant would go union." Cot- trell testified that Tadlock brought the subject up and volunteered that he thought 4It is clear from the context in which he testified that Tadlock was referring to the election of June 30, 1961 TEXAS INDUSTRIES, INC., ETC. 381 the plant would go "strong" for the Charging Party and that he simply disagreed with Tadlock. Cottrell impressed me by his demeanor in the hearing room as a frank trustworthy witness who gave his version of his relationship to and conversa- tions with Tadlock without equivocation or reservation. I credit his version of this incident and therefore find that there was no violation of the Act involved. Tadlock testified that on June 26, 1961, Price asked him "how are you and the Union getting along?" told other employees that Tadlock was an old railroad union man and invited him to quit if he did not "like it here." By dint of leading his witness Evan Deen Jordan, over my repeated admonition not to lead his witnesses, the General Counsel succeeded in getting Jordan to corroborate Tadlock's version of this incident. Mike Valasquez, another employee whom Tadlock admitted was present on the occasion in question, testified credibly that Price did not mention the "Union" in that conversation. Price testified credibly that on said occasion Tad- lock engaged him in a conversation complaining about treatment he was receiving from the Respondents and admitted that he invited Tadlock to quit if he did "not like it here." He also testified that the "Union" was not mentioned in that con- versation. Discounting Jordan's testimony because of the manner in which it was elicited and crediting Velasquez and Price I find that Price did not ask Tadlock how he and the "Union" were getting along and that Price's invitation to Tadlock to quit if he did not like his job with the Respondents was not, under such conditions, a violation of the Act. (Rockwell Manufacturing Company, 121 NLRB 288 ) Tadlock also testified that in a meeting of employees conducted by Price on June 28, 1961. he told them, the assembled employees, "that the Company didn't have to deal with the Union" and in the next breath he qualified that statement by testifying that Price said "you can vote it in but the Company still doesn't have to deal with it because they haven't got the money to give no raise and for sure the Un- ion's not going to give you no raise." Although Price was not interrogated about this incident and did not testify concerning it, 1 do not credit Tadlock's version of the speech in question since I am convinced that he is not a credible witness, not be- cause of any inherent viciousness nor because of any conscious effort on his part to deceive, but because of his inherent propensity to talk about things in general with- out exactitude or certainty. To such a person a statement that although an em- ployer has to bargain with a certified union, he is not compelled to agree to a proposal or required to make a concession (see Section 8(d) of the Act) would be tantamount to a statement that an employer does not have to deal with a union. The latter part of the foregoing quotation from Tadlock's testimony indicates to me that Price actually told the employees that although the Respondents would have to bargain with the Charging Party if the employees voted it in, that the Respondents did not have to agree to its proposals. Tadlock also testified that at the close of Price's speech to the employees of June 28, 1961, he had a conversation with him in which Price told him, "Well, Henry, the Company would just like to know how the men is going to vote." Both Price and Logan, who was present on that occasion, denied Tadlock's version of that incident and testified that Tadlock, after apologizing to Price, told him "Well we will see how it comes out on Friday," or words to that effect and that Price replied "Fine, I am sure we will." Or according to Logan "Well I guess that is right, Henry." For the reasons stated above in connection with other portions of Tad- lock's testimony, I credit Price and Logan as to this incident. I assume that Tad- lock's testimony as to this incident was offered in support of the allegations of paragraph 10 of the complaint, in which the Respondents are charged with inter- rogating their employees as to their "voting intentions," since it is not germane to any other allegation of the complaint. In this connection I would point out that even if Tadlock's version of this incident was credited there is no interrogation involved. In any event there is no violation of the Act involved in this incident and I so find. Since Tadlock was present, on June 29, 1961, when Sewell delivered a speech to ,a captive audience composed of all of the employees of all of the Respondents and the letter which he wrote to all of said employees for delivery to all of them on or about that date, was presumably delivered to Tadlock, both the speech and the letter must be considered and evaluated in connection with the allegations of paragraph 11 of the complaint. In this connection it is most interesting to note that, although many of the em- ployees who were witnesses for the General Counsel testified that on the occasion of the speech either Price, who was present and spoke to the employees, or Sewell or one or the other of them, then and there threatened the employees with aboli- tion of the credit union if they voted the Charging Party in, in the coming election which was held on June 30, 1961, Tadlock testified that the credit union was not 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mentioned by "Price, Sewell or any other supervisor at that meeting ." Tadlock did not, however, testify at all with regard to the letter. It is also interesting to note that all of the still larger number of employees who testified for the Respondents as to Sewell's speech, testified positively that the credit union was not mentioned by anyone at the meeting at which Sewell delivered the only speech which he made to the employees. Most, if not all, of the witnesses who testified to this incident appeared to be testifying honestly and with the utmost candor. Many of the witnesses testified that he read a prepared speech some of them did not remember but none of them testified that he did not do so This situation poses a serious issue of credibility and I ant totally unable to account for this contrariety of opinion among the witnesses as to the content of Sewell's speech . I am convinced that most, if not all, of the wit nesses who testified about the matter did so honestly . In view, however, of the positive testimony that Sewell read his speech from a prepared manuscript, I find that he did so and that the speech , a copy of which is in evidence as the Respondents' Exhibit No. 5 did not contain any reference to the credit union much less any threat to abolish it. Since some of the witnesses who testified about the alleged threat attributed it to either Price or Sewell this raises another issue, i e., did Price on the occasion in question, voice any such threat? Price denied that he did so and a vast majority of these present, who testified at the hearing, corroborated his denial. In addition Price is a lawyer experienced in labor relations law and procedures . There- fore he must have known that any such a threat made to some 200 employees on the eve of the election and within the cutoff period, could only have resulted in an order setting aside the election in the event that the Charging Party failed to poll a majority of the ballots in the election . Under such conditions I find that he did not make any such threat and did not mention the credit union at the meeting in question. Sewell's letter to the employees poses another issue. None of the witnesses who testified about it produced the copy thereof which he received nor did (Mrs.) Bertha Lewis Bluitt, the wife of one of the employees who also testified about the letter. A copy of a letter to the employees dated June 27, 1961, and identified by Sewell as a true copy of the only letter he ever sent to the employees , is in evidence as the Respondents' Exhibit No . 6. The only mention in that exhibit of the credit union is contained in the following verbatim quotation from the exhibit: Think carefully about these points, and the benefits this Company has volun- tarily given to you without pressure from anyone because we believed it was the right thing to do-good wages, a steady job, paid holidays and vacations , credit union, group insurance, coffee breaks, safety and health conditions , etc , and I honestly believe you will vote against a union in our Company. [Emphasis supplied.] In view of the contrariety of opinions by the witnesses, the credible identification of the exhibit, the failure of any employee to produce a copy thereof and the fact that Price, who approved it, would not, in all probability , have permitted it to go out to the employees if it contained any such threat and thereby run the risk of a suc- cessive election , I find that the Respondents ' Exhibit No. 6 is a true copy of the letter and, of course, that it contained no such threat. In deciding, against the General Counsel, the issues as to the alleged threats to abolish the credit union , involving both the meeting of June 29 , 1961, and Sewell's letter dated June 27, 1961, I feel that the General Counsel's failure to recall, on rebuttal, any of the witnesses who testified that the alleged threats were made, in an effort to challenge the authenticity of the Respondents ' Exhibits Nos. 5 and 6, raised an inference that such witnesses were unable or unwilling to do so. Although I am unable to determine if the General Counsel contends that Cook's conversation with Tadlock, allegedly on June 30 , 1961, the day of the election , consti- tuted a violation of Section 8(a)(1) of the Act, I have examined Tadlock's testi- mony with respect thereto most carefully, although I could see nothing objectionable as an unfair labor practice therein as I listened to it at the hearing, and I am con- vinced that even if it occurred exactly as Tadlock testified , that no violation of the Act was involved. That is not to say however, that the conduct involved might not have constituted grounds for setting the election aside under the Board 's General Shoe doctrine . ( General Shoe Corporation , 77 NLRB 124.) In arriving at the findings and conclusions on which my recommendation herein is based, I have carefully considered all of the evidence adduced at the hearing and have based my findings and recommendation on the entire record in this case. ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48 383 V. FINDINGS OF FACT A. The business of the Respondents Since the allegations of the complaint of the facts on which the jurisdiction of the Board is predicated in this case, are admitted by the Respondents in their amended answer herein, I find that the Respondents, operating as a single integrated enter- prise, are engaged, at Dallas, Texas, in the manufacture, sale, and distribution of lightweight aggregates and of other structural products, that during the 12-month period immediately preceding November 21, 1961, they sold and shipped such prod- ucts, of a value in excess of $50,000, directly to customers in States other than the State of Texas and that now and at all times material to the issues herein they are and have been "employer [s)," as defined in Section 2(2) of the Act, engaged in. "commerce," as defined in Section 2(6) of the Act. B. The labor organization involved The General Counsel alleged, the Respondents admitted in their said amended answer, and I find that the Charging Party is a "labor organization," as defined in. Section 2(5) of the Act. VI. CONCLUSION OF LAW On the basis of the foregoing discussions and findings I conclude that the Re- spondents have not violated Section 8(a)1) and/or (3) of the Act as alleged in the complaint herein. [Recommendations omitted from publication.] Orange Belt District Council of Painters x$48, AFL-CIO, its Affiliated Local Unions, and its Agents and Calhoun Drywall Company Building and Construction Trades Council of San Bernardino and Riverside Counties, AFL-CIO and Calhoun Drywall Com- pany. Cases Nos. 01-CC-449-1 and 01-CC-449-2. October 23, 1962 DECISION AND ORDER On April 10, 1962, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Charging Party filed excep- tions 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. In- termediate Report, the exceptions and the.briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- 1 Respondents have moved to strike certain portions of the brief of the Charging Party on the ground that they include matters outside the record. Since, in reaching our deci- sion herein, we have only considered those matters which are part of the record, we deny the motion. 139 NLRB No. 32.