Lock Joint Pipe Co.

LOCK JOINT PIPE COMPANY 943 Lock Joint Pipe Company and United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410. Cases Nos. 16-CA-1533, 16-CA.-1616, and 16-CA-1633. March 28,1963 DECISION AND ORDER On September 5, 1962, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the amended consolidated complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed excep- tions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning and Brown]. 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 brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent with its Decision and Order herein. This case arises out of an amended consolidated complaint. The complaint alleges that Respondent violated a settlement agreement by unfair labor practices committed after the approval of such settlement in Case No. 16-CA-1533 by the Regional Director for the Sixteenth Region ; and that certain presettlement conduct and certain post- settlement conduct constitute unremedied violations of the Act. Postsettlement Unfair Labor Practices Section 8(a) (1) 1. The Trial Examiner found, and the record shows, that about January 1, 1962, Supervisor Stuart Boldry interrogated employee Rekie about when the Union was going to hold its next union member- ship meeting; that on January 26, 1962, and some 2 weeks earlier, Supervisor Higgins interrogated employee Steele concerning the progress of the Union and whether the Union was going to call a strike ; that a few days after January 26, 1962, Supervisor Caldwell asked Steele about the number of union adherents; and that on January 29, Supervisor Boldry, commenting that Steele did not get to bed early on January 26, questioned Steele about his asserted sickness on the evening of January 26 when a union meeting was held at which Steele was present, signed a union card, and ran for a union office. The Trial Examiner concluded, however, that these acts were trivial and isolated, 141 NLRB No. 82. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wholly unrelated to the principal issues of the case, and insufficient to support a finding of a violation of Section 8(a) (1) of the Act. In addition to the facts found above, it appears that on the same occasion, when Supervisor Caldwell interrogated Steele about the number of union adherents, Caldwell told Steele that it would be bad for the workers to strike because, if they struck, they would be dis- charged. Also, when employee Byrd was soliciting union memberships on his own time, just before his layoff, which we find hereinafter to have been discriminatory, he was observed by Supervisor Kinnard, who asked Byrd if he was engaged in solicitation of union member- ships. The foregoing statement by Caldwell to Steele was a threat of reprisal for engaging in protected activity, and the interrogation of Byrd by Kinnard culminated in Byrd's unlawful layoff. We do not agree with the Trial Examiner that these acts by Respond= ent were isolated, trivial in nature, and wholly unrelated to other unfair labor practices in this case. On the contrary, it is clear, and we find, that all such conduct was committed in a context of the other unfair labor practices found herein and that such conduct interfered with, restrained, and coerced employees in the exercise of their rights. guaranteed by Section 7 of the Act, in violation of Section 8(a) (1) of the Act. Section 8(a),(3) 2. The Trial Examiner concluded that the General Counsel failed to prove that employees Donald May Steele was discharged because of his union activity. Although the Trial Examiner found that the assigned reason for Steele's discharge was suspicious, he found that Respondent was not aware that Steele had joined the Union on January 26. Thus the Trial Examiner found that Steele's discharge, 2 weeks after January 26, was not unlawful. We disagree and find that Steele's discharge was discriminatory and violated Section 8(a) (3) and (1) of the Act. The evidence shows that Steele was the target of interrogation and, threats about union activities by Supervisors Biggins, Caldwell, and Baldry. We are finding, herein, that such interrogation and threats, together with other conduct by Respondent, were violative of Sec- tion 8(a) (1) of the Act. The evidence also shows that Steele was nominated for the office of secretary-treasurer of the Union at the meeting held on January 28, 1962, at which time Steele signed a union card. The record further supports an inference, based upon Boldry's. comments to Steele about that meeting, supra, that Boldry was aware of Steele's participation therein. Also relevant is the fact that at the time of his discharge, Steele was told by Boldry that his union activity possibly had something to do with his discharge and, as found by the Trial Examiner, the reason advanced for Steele's discharge is plainly LOCK JOINT PIPE COMPANY 945 unconvincing. Upon the entire record, we conclude that Respondent had knowledge of Steele's union activity prior to the discharge and fur- ther that Respondent's asserted reason for Steele's discharge was a pretext to cloak the discriminatory reason for such discharge, i.e., Steele's union activity. 3. The Trial Examiner found that Respondent laid off employee Floyd Byrd on March 16, 1962, because Byrd punched in late for work, and not because of Byrd's solicitation on behalf of the Union. We disagree. As found above, Supervisor Kinnard interrogated Byrd on March 15, 1962, just prior to Byrd's starting time for work, as to whether Byrd was soliciting union memberships then and received an answer in the affirmative. Kinnard followed Byrd as he punched in and observed that he had punched in 3 minutes late. That afternoon Kinnard called the employees together and announced he was enforcing plant rules and the employees should be at their place of work on time. The next morning, Kinnard gave Byrd a 6-day layoff for being late the previous morning and for "continuous verbal warnings." The evidence shows that the only verbal warnings to Byrd were two Or three admonitions that he wear his safety glasses. Further, it is undisputed that it was the practice of Respondent at the time Byrd punched in late not to discipline employees until they were at least 6 minutes late: Under the circumstances, it is clear, and we find, as in the case of Steele, that Byrd's asserted derelictions were used by Respondent as a pretext to cloak Respondent's real motivation in lay- ing off Byrd, namely, Byrd's union activities, and that by such lay- off Respondent violated Section 8(a) (3) and (1) of the Act. Section 8(a) (5) 4. We disagree with the Trial Examiner's finding-that Respondent did not violate Section 8 (a) (5) of the Act when it refused the Union's request to furnish the Union with data on job classifications and pay rates. The evidence is uncontradicted that, at the first negotiating meet- ing on November 16, 1961, the Union asked Respondent to "prepare [for the Union] a list of classifications and the present wage rates being paid. . . ." Respondent refused. The request was reiterated at the two following meetings. At the fourth meeting, on January 15, 1962, Respondent supplied the Union with a list of job classifications, wage rates, and the numbers of employees in each classification. A dispute ensued as to whether the wage rates and job classifications were accurate and complete. Respondent refused to furnish any fur- ther information, including a requested further breakdown of the laborer classification. The stated reason for such refusal was that 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had provided the Union with all requested information. From the evidence, as a whole, it is clear, and we find, that the list supplied the Union was a list of minimum rather than actual rates paid for each job. Thus, Johnson, one of Respondent's negotia- tors, admitted that the rates contained in Respondent's contract pro- posals to the Union were minimum, and not actual, rates; and it ap- pears that the rates in Respondent's proposals were identical to the rates contained in the list furnished the Union. Furthermore, Brock, one of the Union's negotiators, attributed to another company negotia- tor, Miller, the statement that the rates on the list were only minimum rates. Miller was not called to testify and no explanation was given for the failure of Respondent to call him. Respondent thus refused and failed to furnish the Union with the actual rate paid for each job. Such refusal was clearly unlawful. It is also clear, and we find, that the failure of Respondent to honor the request of the Union for a further breakdown of the laborer classi- fication was not because of an honest belief that the Union was not re- questing any further information pertaining to this classification, but was rather because of Respondent's adamant position that it had given the Union the information originally requested and it was not legally obligated to break down such information any further. It is undis- puted that the Union questioned Johnson about the job duties of em- ployees in the classification entitled "Laborers (After probationary period)." This classification comprised 78 out of a total of 173 em- ployees in all jobs listed. It is also undisputed that the Union "sug- gested a further breakrown of the laborers" into either their actual job duties or into classifications of "Labor first class, second class, etc."; that Respondent never furnished any further breakdown, say- ing "who could say what's labor first class, second class, etc." Consid- ering the large number of employees in this classification and the Union's questioning the completeness of the information about the classification, it must have been clear to Respondent that the Union wanted a more meaningful breakdown of job duties and rates. As the classification bore only a minimum rate, actual rates could have varied with different job duties in the classification. The Union was entitled to this information which was pertinent to bargaining on a contract. We reject the Trial Examiner's conclusion that Respondent was not obligated to furnish such further information because of a lack of sufficient justification for this demand.' We find that Respondent's failure to furnish, upon request, such further information concerning the laborer classification was unlawful? ' Peyton Packing Company, Inc., 129 NLRB 1358, 1362. Upon the present record, we find it unnecessary to pass upon the nature of the strike which commenced on March 19, 1962. LOCK JOINT PIPE COMPANY Presettlement Unfair Labor Practices 947 5. The charge in Case No. 16-CA-1533, which was settled by agree- ment of the parties, charged violations of Section 8(a) (1), including a specific charge of unlawful interrogation, threats, and promises of benefit. In view of our findings, supra, that, subsequent to the execu- tion of the settlement agreement in Case No. 16-CA-1533, Respondent violated Section 8(a) (1) and (3), engaging, among other things, in unlawful interrogation and threats, we disagere with the Trial Ex- aminer and, instead, approve and adopt the action of the Regional Director in vacating and setting aside the provisions of the settlement agreement in Case No. 16-CA-1533.3 The record shows the following presettlement violations by Respondent Safety Director Mose Arnette, on August 1, 1961, interrogated em- ployee William T. Hart, Jr., concerning his opinions about the Union and threatened Hart that, if the employees voted for the Union, it would be a good way for everyone to lose his job. Arnette, during the middle of August 1961, similarly interrogated employee Herman Wilson about the Union and also inquired whether he had signed a union card or attended a union meeting. Supervisor Don Kinnard, on August 23, 1961, interrogated employee Robert Braswellas to who had union cards and warned Braswell that he would be discharged if he had cards and that he would get into trouble if he did not leave the cards at home. Finally, Supervisor Kinnard, on August 30, 1961, in- quired of employee Walter Brown about the Union, stated that em- ployees would make more money if they would keep out of the Union, and suggesting that Brown talk to employees about dropping out of the Union. We find that, by each of the above acts of interrogation and threats and promise of benefit, Respondent interfered with, re- strained, and coerced employees in their exercise of rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. THE REMEDY Having found that Respondent violated Section 8 (a) (1) of the Act, we shall order it to cease and desist from engaging in such conduct in the future. We shall also order Respondent, upon request, to furnish the Union with the information to which it is entitled, to the extent that such information has not heretofore been furnished. The broad pattern of the violations found evinces a general hostility on the Respondent's part to the principles of collective bargaining and to the right of employees to engage in legitimate concerted activities for purposes of organization or other mutual aid and protection. Ac- s Angus Manufacturing Company, Inc., 123 NLRB 1919, footnote 2. 708-006-64-vol. 141----G l 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordingly, in order to make the remedy coextensive with the threat of future unfair labor practices, we shall issue a broad order enjoining all forms of unlawful interference with rights guaranteed employees by Section 7 of the Act 4 Having found that Respondent unlawfully discharged Donald Ray Steele and unlawfully laid off Floyd Byrd and thereby violated Section 8(a) (3) and (1) of the Act, we shall order that Respondent offer Steele immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Steele and Byrd whole for any loss of earnings they may have suffered as a result of the discrimina- tion against them, by payment to each of them of a sum of money equal to the amount he would have earned from the date of the discrimina- tion to the date of reinstatement or future offer of reinstatement,5 less earnings during said periods, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing d Heating Co., 138 NLRB 716.6 We shall also order that Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. CONCLUSIONS OF LAW 1. By threatening employees with reprisals for their union activity, by promising employees benefits for refraining from union activity and for soliciting other employees to refrain therefrom, and by coer- cively interrogating employees regarding union activities, Lock Joint Pipe Company has interfered with, restrained, and coerced employees in the exericse of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 2. By discharging Donald Ray Steele on or about February 9, 1962, and by laying off Floyd Byrd on or about March 16, 1962, Lock Joint Pipe Company has discriminated in regard to the hire and tenure of employment of these employees, thereby discouraging membership in United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, the labor organization herein, in violation of Section 8(a) (3) and (1) of the Act. 4 Mooney Aircraft, Inc., 132 NLRB 1194, 1195. 6 A.P.W. Products Co., Inc., 137 NLRB 25. 6 Member Rodgers, for the reasons set forth in his dissenting opinion in the Isis case, would not award interest. LOCK JOINT PIPE COMPANY 949 3. All production and maintenance employees of Respondent at its Ada, Oklahoma, plant, including laboratory employees, firemen, watchmen, storeroom clerks, and shipping clerks, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above labor organization was, on October 18, 1961, and at all times since has been, the exclusive representative of all the em- ployees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 8 (a) (5) of the Act. 5. By refusing on and after November 16, 1962, to furnish to the above labor organization, at the specific instance and request by said organization, data relating to employee wages and job classifications, and related matters, Lock Joint Pipe Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. 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 Respondent, Lock Joint Pipe Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to furnish information concerning wages and job duties of employees to United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, as the representative of all production and maintenance employees at its Ada, Oklahoma, plant, including laboratory employees, firemen, watchmen, storeroom clerks, and shipping clerks, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) Discouraging membership in United Cement, Lime and Gyp- sum Workers International Union, AFL-CIO, Local 410, or in any other labor organization of its employees, by discharging or laying off any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (c) Threatening employees with reprisals for their union activity or promising them benefits for refraining therefrom and for soliciting other employees to refrain therefrom. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Interrogating employees regarding union activities in a man- ner constituting interference, restraint, or coercion in violation of Section 8(a) (1). (e) In any other manner interfering with, restraining, or coercing employees in connection with their exercise of the right to self- organization, to form labor organizations, to join or assist United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, or any other organization, to bargain collectively through :representatives of their own free choice, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, furnish United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, with informa- tion to which it is lawfully entitled, including information previously requested to the extent that it has not been heretofore furnished. (b) Offer to Donald Ray Steele immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him and Floyd Byrd whole for any loss of earnngs each may have suffered by reason of the discrimination against him in the manner set forth in the section entitled "The Remedy" in this Decision and Order. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. (d) Post at its place of business in Ada, Oklahoma, copies of the attached notice marked "Appendix."' Copies of this notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all such places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. ' 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." LOCK JOINT PIPE COMPANY 951 (e) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaints, insofar as they allege that the Respondent violated the Act by conduct other than that found to be violative herein, be, and they hereby are, dismissed. 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, upon request, furnish United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, as the exclusive representative of all our employees in the bar- gaining unit defined below, information to which it is lawfully entitled, including information previously requested to the extent that it has not been heretofore furnished. The bargaining unit is : All production and maintenance employees of Lock Joint Pipe Company at its plant at Ada, Oklahoma, including laboratory employees, firemen, watchmen, storeroom clerks, and shipping clerks, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL offer to Donald Ray Steele immediate and full rein- statement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and make him and Floyd Byrd whole for any loss of earnings each may have suffered by reason of the discrimination against them. WE WILL NOT, by threatening employees with reprisal for their union activity, promising them benefits for refraining from union activity or soliciting others to do so, coercively interrogating em- ployees regarding their union activities, discharging or laying off any employees, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to join United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, Local 410, or any other labor organi- zation, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as amended. 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 a lawful agreement requiring membership in a labor organization as a condition of employment. LOCK JOINT PIPE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employees presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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 with the Board's Regional Office, 110 West Fifth Street, For Worth, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon separate charges duly filed by United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Local 410, herein called the Union , the General Counsel of the National Labor Relations Board issued a complaint dated May 11, 1962, against Lock Joint Pipe Company, herein called the Respondent or the Com- pany, alleging violations of Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. The answer of the Respondent admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice , a hearing was held before Trial Examiner Reeves R. Hilton at Ada, Oklahoma, on June 19 and 20, 1962. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by the General Counsel and the Respondent about July 23, 1962. Upon consideration of the entire record and the briefs of the parties , and upon my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE COMPANY'S BUSINESS The Company, a New Jersey corporation, has its principal office in East Orange, New Jersey, and operates a plant at Ada, Oklahoma, where it is engaged in the manufacture of concrete pressure pipe. During the 12-month period preceding the issuance of the complaint the Company purchased parts and equipment valued in excess of $50,000, which were shipped directly to it from suppliers located outside the State of Oklahoma. I find the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. LOCK JOINT PIPE COMPANY III. THE UNFAIR LABOR PRACTICES 953 A. Preliminary statement J. Harvey Johnson, project manager of the Ada plant operation, testified that, at some unspecified date, the Company entered into an agreement with the Oklahoma City Municipal Improvement Authority, herein called the Authority, to manufacture concrete pipe to be use in the construction of a water pipe line from Atoka to Okla- homa City. Thereafter, in February 1961 the Company began construction of a plant in Ada, Oklahoma, and in June 1961 commenced manufacturing pipe in accordance with the foregoing contract. The Company's entire operation in Ada was designed and used exclusively for the Authority project. Johnson estimated the Company would complete its contract with the Authority sometime during the first part of 1963, at which time , according to present plans, the plant is to be dismantled and moved. Apparently the Union initiated an organizational drive when the plant went into production and about July 12, 1961, filed a representation petition which resulted in a Board-directed election which was held on October 18, 1961 . The Union won the election and on October 26, 1961, was certified as the exclusive bargaining representative for all production and maintenance employees at the Ada, Oklahoma, plant, including laboratory employees, firemen , watchmen , storeroom clerks, and shipping clerks, exclusive of office clerical employees , guards, professional employees, and supervisors as defined in the Act. Meantime on August 23, 1961, the Union filed a charge , Case No. 16-CA-1533, which was settled by the parties by a settlement agreement, approved by the Regional Director on or about November 20, 1961, by which the Company agreed to post a notice providing that it would refrain from interrogating its employees, from main- taining or enforcing any rule, prohibiting employees from engaging in union solicita- tion on company property during nonworking hours, and from in any manner interfer- ing with, restraining, or coercing its employees in the exercise of their right to self- organization or to refrain from such activities. On February 13, 1962, the Union filed a second charge, Case No. 16-CA-1616, which on March 22, 1962, resulted in the Regional Director vacating and setting aside the provisions of the settlement agreement , except the provision relating to the maintenance and enforcement of an invalid "no-solicitation" rule. On March 23, 1962, the Regional Director entered an order consolidating the cases and issued a complaint against the Company alleging violations of Section 8(a)(1) and (3) of the Act. On March 23, 1962, the Union filed a third charge, Case No. 16-CA-1633. On May 11, 1962, the Regional Director entered an amended order consolidating the three cases and issued a complaint against the Company alleging violations of Section 8(a)(1), (3 ),and (5) of the Act. B. The pleadings The complaint alleges that on various dates in August 1961 , certain supervisory employees of the Company ( 1) interrogated employees concerning their union mem- bership and activities, (2) warned an employee to leave his union material home or he would get in trouble, and ( 3) promised benefits to employees if they refrained from bringing the Union into the plant and solicited these employees to encourage other employees to drop the Union . As already stated the parties entered into a settlement agreement covering these acts , which was subsequently set aside . The answer denies the above allegations of the complaint. The complaint further alleges that the Company ( 1) since October 5, 1961, has unlawfully granted general wage increases ; (2) illegally interrogated employees in January 1962; (3) maintained surveillance of a union meeting in January 1962; (4) discriminatorily discharged Donald Ray Steele in February 1962; (5) discrimi- natorily laid off Floyd Byrd for 1 week during March 1962; (6) has refused to bargain with the Union in that (a) since November 16, 1961 , the Company has refused to furnish data requested by the Union relating to wages and job classifications and similar matters ; and. (b ) since February 21, 1962, has refused to notify or consult with the Union on the granting of merit increases to employees ; I and (7) photo- graphed activities of picketing employees about March 19, 1962 , when the em- I At the outset of the hearing , without objection , I granted the General Counsel's oral motion to amend his complaint by adding subparagraph (b) thereto. 954 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD ployees were engaging in an unfair labor practice strike.2 The answer generally denies the foregoing allegations of the complaint. C. The issue It is well settled that continuing violations of the Act will breach a settlement agreement involving unfair labor practices and will justify the Regional Director in vacating the agreement and in proceeding with a complaint which covers unlawful conduct both before and after the agreement. (The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255; International Brotherhood of Teamsters, etc., Local 554, AFL-CIO (Clark Bros. Transfer Co. & Coffey's Transfer Co.) v. N.L.R.B., 262 F. 2d 456, 459-461 (C.A.D.C.); Peter Kiewit Sons' Co., 136 NLRB 119; Barker's East Main Corporation, 136 NLRB 119; Baltimore Luggage Company, 126 NLRB 1204, 1208.) However, findings of unfair labor practices can properly be made on the earlier conduct only where there is evidence of substantial unlawful conduct following the settlement agreement, for evidence of isolated and minor incidents will not justify the Board in going behind the agreement. (Wooster Brass Company, 80 NLRB 1633, 1635.) Here there is no serious problem regarding the effect of Section 10(b) upon the presettlement conduct for the Company does not plead that section as an affirmative defense and in any event all the acts occurred within the 6-month period preceding the date of the filing of the second charge, except one act of interrogation which is alleged to have taken place about August 7, 1961.3 Accordingly, the broad question presented is whether the General Counsel has established the allegations of his complaint by a preponderance of all the evidence. In resolving this question I shall consider separately the evidence concerning the two periods. D. Presettlement conduct The Company does not contest the evidence adduced by the General Counsel show- ing interrogations and threats in August 1961, for the reason that these acts occurred prior to the election and have no bearing on subsequent bargaining negotiations be- tween the Company and the Union. The evidence on this phase of the case may be summarized as follows: William T. Hart, Jr., was interviewed by Mose Arnette, safety director, about August 1, 1961, shortly after his employment, and during the interview Arnette asked what he thought of the Union. Hart said he knew nothing about the Union. Arnette, in response to Hart's inquiry, stated that unions were of no benefit to individuals and if the employees voted for the Union at this plant "it would be a good way for all of us to lose our jobs." Herman Wilson related that about the middle of August 1961, Arnette asked what he thought of the Union and Wilson said he was not certain what was going on at that time. Arnette then asked if he had signed a union card or attended a union meeting and Wilson told him no. Robert Braswell signed a union card and solicited other employees to join the Union. About August 23, 1961, Braswell told foreman Don Kinnard the crew wanted to meet for the purpose of signing up with the Union. Kinnard refused Braswell's request and inquired who had the union cards. Braswell said he had them whereupon Kinnard warned he better not have them, that he would be fired. Shortly thereafter Kinnard asked Braswell where he kept the cards and he replied they were in his car. Kinnard stated he better leave the cards at his home or he would get into trouble. Walter Brown testified that about August 30, 1961, Kinnard, after inquiring about the Union, said the men would make more money by keeping out of the Union rather than bringing it into the plant and suggested that Brown talk to the men about drop- ping out of the Union. It is undisputed that the Company granted a general wage increase on Septem- ber 27, 1961, effective as of September 21, 1961. The General Counsel contends that since the Company announced the wage increase the same day the Board issued its order directing an election the increase was intended to interfere with and restrain the employees in their selection of a bargaining representative in the forthcoming election. Absent further explanation, I fail to see how unlawful motive may be inferred from the bare fact that the date of the pay raise announcement and the 2 Without objection, I granted the General Counsel's motion to amend his complaint to include the photographic activities. s Another act alleged to have been committed about August 3, 1961, was amended to read August 30, 1961. LOCK JOINT PIPE COMPANY 955 Board's Order happen to coincide.4 In any event Johnson fully explained the cir- cumstances under which the increase was granted, and his testimony in this respect is undisputed. As related by Johnson, the Authority retained the right to fix minimum wage rates for employees performing work under the contract and on September 26, 1961, he received a letter from the Authority establishing a new wage scale for vari- ous classifications of employees. On September 27, the Company put the new wage scale into effect, retroactive to September 21, and while it had some employees who were not included in the classifications setup by the Authority, the Company granted the increase to all its employees in order to maintain wage differentials between the classifications. On September 27, the Company distributed letters to the employees notifying them of the increase and the rate of the particular individual. In brief, the letter stated that the Authority had prescribed a new wage scale under which many employees would receive a raise of 10 cents an hour or more. The Company believed it unfair to give a blanket increase to some, but not to all the employees, so all employees who were not included in the new scale were being granted an increase of 10 cents an hour. In these circumstances, I have no difficulty in finding the Com- pany granted the general wage increase for valid reasons and neither the Union nor the pending representative proceedings had any bearing on the Company's decision in this respect. E. Postsettlement conduct The Refusal To Bargain On October 30, 1961, Clyde G. Brock, International representative, sent a pro- posed contract to the Company and thereafter, as stipulated by counsel, representa- tives of the parties held negotiating meetings on November 16 and December 11 and 27, 1961; January 15, February 5 and 23, March 9, and May 2 and 18, 1962. Brock, Orval Webber, union representative, and employee Gilbert M. Rekie were the prin- cipal members of the Union's bargaining committee while Johnson and two other persons represented the Company during the negotiations. Here the refusal to bargain is based on the Company's refusal to furnish wage data and on merit increases so, as to be expected, little time was devoted to negotia- tions covering other bargainable subjects proposed and discussed by the parties. The composite testimony of Brock, Rekie, and Johnson shows that the first meeting, November 16, the Company submitted its counterproposal to the Union's contract and the parties fully discussed the provisions of each agreement. Thereafter the Company submitted three additional proposals at the sessions held on December 11, January 15, and February 5, each of which was fully discussed, and as a consequence the parties reached agreement on some, but not all, contract terms. As set forth below the Union called a strike on March 19, 1962, which the General Counsel claims was caused by the Company's unfair labor practices, and which was still current at the time of the hearing. The Alleged Refusal To Furnish Wage Data Rekie testified that during the first three meetings Brock or Webber asked the Company to prepare "a list of the job classifications and the present wage rates" and the company representatives stated they did not believe this information was neces- sary. They also expressed some doubt that the Company was required by law to supply this information as asserted by Brock. Brock stated he asked the Company for "job classifications and wage rates, which they did not have in their proposal" 5 and its representatives stated this information was not available at that time. In the discussions that followed the Company took the position that the Union did not need this data because the plant was a temporary operation and any pay raise agreed upon would be applicable to all employees and negotiations on that subject would be conducted on an across-the-board basis. Johnson conceded the Union requested information on "present rates and classifications." It is undisputed that on January 15, the date of the fourth meeting, the Company gave the Union a written memorandum setting for 12 job classifications, the number of employees in each classification, and their hourly rate (General Counsel's Exhibit No. 3). The memorandum also shows that the Company had a group of seven S I have been administratively informed that the Board's records indicate the Order was issued and mailed to the parties on September 27, 1961. Obviously, the Company would not have received the Order at its Ada plant the same day it was mailed. 5Phe Company's first proposal, Respondent's Exhibit No. 1, contains a basic minimum rate of $1.35 an hour and minimum hourly rates for some 12 classifications. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men receiving $1.60 an hour whose job classifications were left blank (herein re- ferred to as the seven unclassified men) and one additional man receiving $1.85 an hour, whose classification was likewise blank. Johnson stated that the rates set forth therein were those actually paid the employees with the exception of the two crane operators, which were minimum rates. Rekie said after examining the memorandum he pointed out that laboratory workers were paid $1.70 an hour, not $1.60 as stated therein, where upon the Com- pany corrected this error. Rekie stated that at this meeting, and others, Brock asked about the 7 unclassified men and the company representatives replied they were miscellaneous labor and Brock then commented that the memorandum contained a "miscellaneous labor" classification showing 17 men in that category who were receiving $1.50 an hour. Brock then asked about the one unclassified employee and while the company representatives could not give his job at that time they advised the Union at the next meeting that this man was employed as a carpenter. The parties discussed the "laborers" classification and the Union took the position it was "incredible" the Company would have 78 employees in this group; that it con- sidered many of these laborers to be skilled workmen and if the Company could not give their "actual classifications," then it should classify the men as "labor first class, second class, etc." The company representatives queried, "Who would say what's labor first class, second class, etc?" and never did give a breakdown on the laborers. Although Rekie admitted he was not familiar with all types of work per- formed by the laborers, he said some of the laborers painted, chipped out, and patched the pipe. Concerning the crane operators, Brock stated he knew the two operators were paid more than $2.50 an hour and the company representatives replied that was the minimum rate for newly hired crane operators. Brock also declared that the Company had granted many merit increases, so he wanted actual rates for the classifications instead of the minimum rates set forth in the memoran- dum. The company representatives answered that they did not have to furnish any additional information. Brock testified that when he inquired about the actual pay rate of the crane op- erators the company representatives said they did not know the rate, that the mem- orandum had been prepared sometime previously. He then asked what type of work the seven unclassified men were doing and the company representatives replied they did not know. Likewise, Brock asked about the additional unclassified man, the carpenter, and the company representatives said they did not know what he was doing. According to Brock the company representatives stated the Union did not need this additional information since they were negotiating wage increases on an across-the-board basis. Brock testified the Union requested a list of job classifications and current wage rates at six or seven meetings. The General Counsel then asked Brock (p. 198): Q. And what was the position of the Company with respect to your request. A. They contended that they had the right to give merit increases, and the reason that they didn't want to tell us what each person was making out there was because there had been some merit increase given, and we had discussions that since the date of certification they were. supposed to take this up with the Union before a merit increase could be given, but they didn't go along with that. They thought they were right, according to what they said, and they said they would continue to give the merit increases, and that they didn't have to say anything to us about it. Johnson testified the Union asked for a general wage increase of $1 in its proposed contract, which it later reduced to 37 cents an hour, and he denied that the Union ever requested negotiations on the basis of individual rates by individual job classifications .8 As already stated, Johnson testified that the hourly rates contained in the mem- orandum were the rates actually paid to the employees, with the exception of the two crane operators. At the January 15 meeting, Johnson, in answer to Brock's com- ments regarding the crane operators, explained the two operators had been with the Company for years, were highly skilled men, and their actual pay rate was much greater than prevailing area rates. The Company, therefore, fixed a minimum rate for this classification so it would be obligated to hire inexperienced crane operators at the same rate it was paying the present operators. Johnson stated the Company 6 The Union's proposed contract was not offered in evidence at the hearing. While Rekie denied the Union asked for a dollar-an-hour increase he admitted the Union did ask for a 50-cent-an-hour across-the-board increase and subsequently reduced this demand to 15 cents. The Company offered an increase of 3 cents an hour across the board. LOCK JOINT PIPE COMPANY 957 and the Union discussed the seven unclassified men, who were performing laboring work. It is clear from the testimony of Brock and Rekie that the Union questioned the sufficiency of the data supplied principally on the grounds that it did not contain a detailed breakdown of the labor force, that is, the 78 employees classified as laborers, 17 classified as miscellaneous labor, and the 7 unclassified men. At no time did the Union, as I understand the testimony, contend there was any serious discrepancy between the classifications set forth in the Company's memorandum (General Coun- sel's Exhibit No. 3) and those appearing in the proposed contracts submitted by the Company (article IV of Respondent's Exhibits Nos. 1, 6, 7, 8) or that there was any discussion, or request for discussion, on that point. However, at the hearing the General Counsel, in his cross-examination of Johnson, attempted to prove the inadequacy of the data furnished, or that it was suspect, by comparing the job classi- fications contained in the memorandum with those in the proposed contracts. In this respect Johnson testified that the classification "fork lift operator" in the pro- posed contracts is stated as "mobile equipment drivers" in the data memorandum. Again, the proposed contracts contain classifications covering, (1) payloader, mobile crane, grader, (2) helical machine operator, and (3) tension winding operator, all of which Johnson said were "lumped together for brevity in the data memorandum." In conclusion the General Counsel inquired, "The Union never asked you for a breakdown of these classifications, sir?" and Johnson answered, "No, sir." Later the General Counsel cross-examined Johnson regarding certain classifications in the data memorandum and the Authority's letter of September 25, 1961, establishing a new scale for classifications performing work on the project. There is nothing in the testimony of Johnson, Brock, or Rekie suggesting that the parties discussed classifications in that manner during the bargaining negotiations. Irrespective of that point, Johnson said the Company had nine men classified in its memorandum as "firemen and odd jobs," who were paid $1.55 an hour, and that the "odd jobs" in- cluded cleanup jobs around the plant and yard and "miscellaneous labor" referred to helpers who performed production work and were paid $1.50 an hour. In general it is well settled that an employer's failure to furnish, upon request of a bargaining agent, wage and classification data relevant to bargaining negotiations supports an inference of failure to bargain in good faith.? It also seems clear that a finding of refusal to bargain on this ground presupposes a reasonable description of the data sought to be obtained from the employer by the bargaining representative.8 Here the evidence shows that the Union asked for information regarding classifica- tions and current pay rates of the employees and the Company responded with the memorandum described above. There is no doubt the memorandum was a subject of discussion at the meeting of January 15. However, the testimony of Rekie and Brock concerning their questioning of certain data therein, as well as the discussion thereon, is not only sketchy and fragmentary but inconsistent in many respects. Rekie's account of the meeting, and Brock's version where it happens to be in general accord, warrants the finding that the Union pointed out an error in the memorandum as to the rate of laboratory workers which was corrected and then asked for an explanation of the seven unclassified men, one additional unclassified man, and the crane operators, and each of these items, in my opinion was satisfactorily explained by the Company. Beyond that point it is not clear just what additional information the Union requested of the Company. From Rekie's testimony it appears that the Union decided it was simply "incredible" for the Company to have 78 employees classified as "laborers" and that this classification should be broken down into "labor first class, second class, etc." The Company's answer to this broadside request was there was no way of categorizing the degrees of labor performed by men in this classification. Rekie then proceeded to come up with a flimsy reason to support his contention, albeit there is nothing in the record to indicate he even advanced this reason to the Company at any bargaining session. In this respect, Rekie on the basis of his limited observation of some laborers, stated he had seen some of the laborers painting, chipping, and patching pipe, so presumably the Company could give a description of the various daily tasks performed by the laborers. Brock's testimony is no more convincing than Rekie's for when asked directly to state the position of the Company concerning the additional data he responded with a lengthy and con- fusing discourse on merit increases, supra. Indeed, the General Counsel in his brief 7 "M" System Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 542; 552, citing N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152. 8 For instance in the "M" System case, supra, at p. 542, the Union submitted its request in writing and at the initial bargaining meeting the precise data sought was thoroughly discussed by the parties. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frankly concedes, "there is some testimonial conflict as to what occurred in the bargaining sessions, what was requested and what was not requested-." However, he then attempts to spell out a refusal to furnish this information on the theory that there was some variance between the classifications in the memorandum and the Company's proposed contracts , a matter not discussed at the meeting or meetings, and generally adopts Rekie's theme that the "laborers" performed different types of work requiring different degrees of skill, hence they should be classified according to their skills. The General Counsel also states that the memorandum did not give the actual pay rates for the classifications. Johnson testified to the contrary on both direct and cross-examination and his testimony stands uncontradicted . I find no merit to these contentions. I find the Company supplied the Union with necessary and available data on job classifications and pay rates and its alleged failure to furnish additional information giving a detailed breakdown of its labor force, assuming there was a request for this information, was not unlawful because of lack of sufficient justification for this demand. The Merit Increases The complaint, as amended at the hearing, alleges that since February 21, 1962, the Company has refused to bargain collectively in that it has failed and refused to notify or consult with the Union on the granting of merit increases. There is no doubt the Company's proposed contracts contained a clause reserving the right to grant merit increases at its own discretion. Brock's complaint was that the Company, without any notice to the Union, had been granting merit increases since the date of its certification and the Union wanted advance notice before effectuating any such increases . Brock claimed the Company turned down his request. Rekie stated Brock told the Company the Union was opposed to merit increases because they "created disharmony in the plant," and the merit increases which the Company had been granting were illegal since the Company had failed to give prior notice thereof to the Union . Seemingly, Brock claimed the Company should discuss future merit raises with the Union before making them effective . The Company took the position it had the right to grant merit increases without consulting with the Union . While the representatives discussed merit increases during the negotia- tions neither side changed its position and, of course , no agreement was reached on that subject. Johnson testified the Union objected to bargaining on the Company 's merit in- crease clause because it questioned the legality of the clause. Johnson said discus- sions on merit increases centered on the provision in the Company's proposed con- tract and he denied there were any discussions regarding the granting of merit in- creases to employees during the negotiations or that the Company had in fact granted any such increases during this period. Johnson further denied that the Company took the position it would not inform the Union regarding merit increases. The only evidence regarding a wage increase came from Henry Brandon who stated he was hired in the latter part of January or early February 1962, and about 30 days later was given a 10-cent an hour increase. Brandon reluctantly admitted that when he was hired Arnette told him that under company policy he would be given a 10-cent an hour raise 30 days after his employment. Johnson said Brandon was hired February 2, 1962 , at $1.35 an hour and on March 5 he was raised to $1.45, which was a probationary or automatic raise given to all new labor employees at the end of 30 days. . Unquestionably, the Union opposed the Company's contract proposal reserving to it the right to grant merit increases at its own discretion . Plainly this provision was a legal and proper subject for the bargaining and the parties discussed the pro- vision during the negotiations but were unable to reach any agreement thereon. Here, the only issue concerning merit increases is whether the Company refused to bargain by failing to notify or consult with the Union on the granting of such increases . In my opinion the testimony of Brock and Rekie, flimsy as it is, demon- strates that the real issue centered on the Company's insistence on the merit increase provision and as there was nothing unlawful in taking that stand the Union shifted its theory to suit its convenience . Obviously, the Union disapproved merit increases and Brock and Rekie made futile efforts to come up with something to support their claim that somehow and in some manner the Company refused to bargain on this subject. Likewise, the General Counsel seems uncertain of his theory of the violation for he summarizes the Union's position as "they [the union representatives] would prefer that merit increases not be granted , but insisted if they were , the Union be notified and consulted with." It is sufficient to say the undisputed evidence shows that no merit increases were even granted by the Company during the negotiations. a LOCK JOINT PIPE COMPANY 959 I find the Company did not unlawfully refuse to bargain with the Union concerning merit increases as alleged in the complaint as amended. The Positions of the Parties On and After January 15, Conclusions With Respect to the Strike of March 19 Johnson related that at the conclusion of the January 15 meeting he asked Brock to state the contract terms still in dispute, which he did. Thereafter Johnson pre- pared a written list of these items which he presented to the Union at the next meeting which was held on February 5, and the union representatives conceded the list correctly set forth the items in dispute.9 Rekie admitted the list was presented to the Union at the February 5 meeting, that it was discussed by the parties and they agreed it was a correct statement of the dis- puted items. Later, Rekie sought to qualify his testimony by stating that while the list set forth the major items in dispute there were other items of a minor nature also in dispute. Brock did not deny Johnson's testimony relating to the list although he testified in rebuttal on other matters. According to Rekie substantially the same situation prevailed on February 23, at which time, apparently, a representative of the Federal Mediation and Conciliation Service was called into the dispute. On the evening of January 26, the Union held a meeting at the VFW hall at which time Brock, as related by Rekie, advised the members that the Union had been unable to reach agreement with the Company on many contract provisions such as union shop, wages, and checkoff and that the Company had refused to furnish classification and wage data. Further, complaints had been received from employees regarding discriminatory treatment on the part of supervisors. Therefore, by reason of the Company's "unfair labor practices, and their refusal to bargain in good faith, or negotiate with us concerning these wage rates and classifications," the employees, by secret ballot, voted to strike the Company. Brock admitted that the Union held an important meeting about March 14, but there is no evidence as to what transpired at this meeting. On March 17, Brock notified Johnson the Union was striking the plant on March 19. The strike, which the General Counsel contends was an unfair labor practice strike, commenced on March 19, and was still current at the time of the hearing. Having found that the Company did not refuse to bargain collectively on the grounds alleged in the amended complaint, and as appears below that the Company has not engaged in any other alleged unfair labor practices, I further find that fol- lowing the unsuccessful negotiations the Union engaged in the strike for the purpose of forcing the Company to agree to more favorable contract terms, therefore the strike was prompted by economic reasons and was not caused or prolonged by any unfair labor practices on the part of the Company.lo Other Alleged Unfair Labor Practices; Interrogation, Surveillance Rekie said since he was a member of the negotiating committee and had to be excused from work at times, he frequently talked to his foreman, Stuart Boldry, about the Union. Around the first of January, Boldry asked when the Union was to hold its next meeting and Rekie queried if he meant the next negotiating meeting. Boldry said he was referring to a union meeting and Rekie replied he could not talk about the Union on company time and property because he could be fired. 9 The list (Respondent's Exhibit No. 2) specifies 11 disputed items but makes no mention of wage data or merit increases. Accompanying the list was the Company's proposal in respect to each item. "To show that the strike was not caused by any unfair labor practices and to discredit Rekie's testimony to the contrary, the Company introduced the transcript of his testimony before the Oklahoma Security Commission which reveals that he testified the strike was called because the Union could not obtain the kind of contract it wanted. While the transcript contradicts Rekie's previous testimony and constitutes an admission against interest on Rekle's part and, therefore, entitled to some consideration , I do not deem these factors controlling or decisive on the issues herein. The Company also introduced newspaper articles covering the strike wherein Brock is quoted as saying the Union was asking for a reasonable wage increase and a contract similar to the one it had with the Company at its New York plant. The newspaper re- porter testified to the accuracy of the quotation obtained during his interview with Brock, while Brock testified to the contrary. I do not rely upon this evidence to support any of the findings herein, so it is unnecessary to discuss the articles or to resolve the credibility issue. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steele joined the Union on January 26, and about 2 weeks prior thereto Foreman Higgins asked how the Union was coming along and if it was going to call a strike. Steele did not state what, if any, answer he gave Higgins. A few days later Foreman Caldwell asked how many men were in the Union and Steele replied he did not know. Steele further stated that he had been sick with the flu and on Monday, January 29, Boldry asked how he was feeling. Steele replied he was trying to get to bed early and Boldry commented he did not get in early Friday night, which was the night of the union meeting. Steele said he had business to attend to that night. Boldry, Higgins, and Caldwell did not testify at the hearing. As already stated the Union held a meeting at the VFW hall the evening of January 29. Rekie and Steele arrived at the hall about 7 o'clock, the meeting was scheduled for 7:30, and Rekie saw Elwood Pitsenbarger, production manager, sitting in his car which was parked across the street from the hall. In substance Rekie said Pitsenbarger was looking in the general direction of a number of employees who were standing in front of the hall and that he remained there until shortly before the meeting started. While Steele saw Pitsenbarger drive slowly past the hall, he did not see him park his car for Steele immediately entered the building. In brief, Brock said Pitsenbarger was in his car parked across the street from the hall and he remained there for about 20 or 30 minutes. During part of the time Pitsenbarger was talking to an employee who was standing alongside the car. Pitsenbarger admitted he parked his car at the time and place as stated for the purpose of going to a beer garden located next to the VFW hall. However, just as he parked one of the employees, Roy Germany, came to his car and told him the Union was holding a meeting, so he drove off and did not return. Pitsenbarger saw Brock standing in front of the hall on this occasion. The uncontradicted testimony of Rekie and Steele regarding interrogations by foremen is not only meager but wholly unimpressive insofar as showing any union animus on the part of the Company. Although Rekie and Boldry frequently dis- cussed the Union, the only incident Rekie could relate took place sometime around January 1, when Boldry asked when the next union meeting would be held. Rekie refused to answer the inquiry and that settled the matter. Steele claimed Higgins asked how the Union was coming along and if it was going to strike and obviously, he did not even answer Higgins. Shortly thereafter, Caldwell inquired how many men were in the Union and he said he did not know. Both these queries were addressed to him before he even joined the Union. The third incident occurred January 29, when Boldry, after inquiring of Steele's health and Steele's reply, commented he had not gone to bed early Friday night. From this harmless remark it must be inferred, apparently, that Boldry was referring to Steele's presence at the union meeting on January 26, which is still meaningless, for there is no contention that Boldry criticized or threatened Steele for attending the meeting or that he sought any information concerning the meeting itself. I consider these acts trivial and isolated, wholly unrelated to the principal issues herein, and insufficient to support a finding of interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. There is no doubt Pitsenbarger was in the vicinity of the VFW hall the night in question. Rekie and Brock claimed he remained there for some 20 or 30 minutes. On the other hand Pitsenbarger said he was there for the purpose of visiting a beer garden next to the hall and when one of the employees told him the Union was hold- ing a meeting he immediately left the area. About the only conflict in the testimony is the length of time Pitsenbarger remained at the scene of the meeting. I am satis- fied with Pitsenbarger's explanation of his presence in the area and I accept his testi- mony that, upon being informed of the scheduled meeting, he left the area at once. It also strikes me that if Pitsenbarger, who was on the bargaining committee, in- tended to spy on the Union it is unlikely he would have conducted his activities in the open manner described herein. Again, absent evidence to the contrary, it cannot be said that Pitsenbarger's presence in the vicinity of a veteran's hall, as distinguished from one owned or occupied by a union or unions, warrants the inference he was there for the purpose of spying on the Union which happened to be holding a meet- ing at the premises at that time." I find the Company did not maintain surveillance of the union meeting on January 26. The Discharge of Steele Steele was hired in August 1961 and worked on quality control under Boldry until about the first part of February 1962, when he was discharged. Steele first became 11 Cf. Dal-Tex Optical Company, Inc., 137 NLRB 274. LOCK JOINT PIPE COMPANY 961 interested in the Union on January 26 when he attended the meeting at the VFW hall, at which time he signed a union card and was one of the nominees for the office of secretary-treasurer. Generally, Steele's duties included the checking of pipe in the manufacturing process to see that it complied with the standards required by the Authority. On one occasion during his early employment Boldry warned Steele to be more careful in checking the pipe for cracks, which warning he accepted and followed without any further complaints from Boldry. About 2 weeks after the January 26 meeting, Steele was called to Boldry's office where Boldry stated he was being discharged because he had checked the "fitness" of the coating in the presence of the operator. Steele asked if that were the reason for his discharge and Boldry said yes. Steele then asked if it was possible his union activities had anything to do with his dismissal and Boldry replied, "Yes, it's possible." Boldry told Steele he could finish out the day, it was Thursday, and work Friday to complete the week, or he could discharge him immediately. Steele elected to finish out the week. Steele ad- mitted that on this occasion he checked the coating in the presence of the operator but this was in line with procedure and Boldry had observed him making tests in these circumstances prior thereto. On Friday, Steele requested Pitsenbarger to watch him conduct a check, which he performed in the same manner, and during the check Steele asked if he could see anything wrong and Pitsenbarger said no. Pitsenbarger, Steele, and Boldry then engaged in conversation during which Steele referred to the check just made and the conversation ended with Pitsenbarger stating whatever Boldry said was final. Steele was discharged that day. Pitsenbarger stated an inspector or checker makes spot checks to determine the thickness of the mortor coating on the pipe by sticking a gauge in the wet mortar and be issued instructions to the effect that such tests should be conducted without pre- vious indication to the operator and after the pipe had left the control of the operator. Pitsenbarger further said the actual test could be made in the presence of the operator for he exercised no control over the pipe at that stage of the manufacturing process. On the basis of Steele's undenied testimony, I find he was discharged by Boldry for checking pipe coating in the presence of the operator. I also find from the testi- mony of Steele and Pitsenbarger that it was standard procedure to conduct the actual test in this fashion. Consequently, Boldry's dismissal of Steele for that reason presents a puzzling situation which I will not attempt to explain. But, irrespective of the baffling reason for Steele's discharge, the General Counsel still has the duty of proving the Company had knowledge of his union membership or activities and that his dismissal was motivated by unlawful considerations. Steele's activities consisted of nothing more than joining the Union at the meeting of January 26, and being one of the nominees for the office of secretary-treasurer. Certainly it cannot be said Steele was an outstanding union adherent and there is nothing in the record suggest- ing that the Company was aware of his joining the Union. The only evidence touch- ing on company knowledge and motive appears in Steele's account of his conversa- tion with Boldry at the time of his dismissal. Thus, Steele asked if he was being fired for checking the pipe in the presence of the operator and Boldry told him yes. Steele then inquired, "Could this possibly have anything to do with my union activities?" and Boldry replied, "Yes, it's possible." No doubt a statement of this character would carry weight in the context of other acts or conduct indicating discriminatory treatment, but standing alone I cannot see how the statement is sufficient proof to sustain a finding that the Company had knowledge of Steele's union membership or activities and that he was discharged for that reason. Of course, knowledge and motive may be inferred where the evidence discloses a pattern of hostility to organi- zation.12 However, as there is an absence of any such pattern in this case I am of the opinion the evidence herein would not warrant the inference the Company knew Steele was a member of the Union and therefore discriminatorily discharged him.13 While Steele's discharge might raise a suspicion that it was discriminatory, mere suspicion or surmise cannot be considered as evidence to support a finding of unfair labor practice.14 I find the Company did not discriminatorily discharge Steele. 12 N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602; Angwell Curtain Company, Inc. v. N.L.R.B., 192 F. 2d 899, 902-903 (C.A. 7) ; Wiese Plow Welding Co., Inc., 123 NLRB 616. 13 The Great Atlantic & Pacific Tea Company, Inc., 129 NLRB 757, 758-759; Trenton Manufacturing and Distributing Company, 129 NLRB 797, 801-802; William L. Law, et at., d/h/a Law Tanning Company, 123 NLRB 1748, 1753-1754. 14 N.L.R.B. v. Shen-Valley Meat Packers, Inc., and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 393, AFL, 211 F. 2d 2189, 292-293 (C.A. 4) ; Law Tanning Company, supra. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Disciplinary Layoff of Floyd Byrd About March 6, Byrd and Fullingham were given a 3-day suspension by Foreman Kinnard for eating lunch in the boilerroom during worktime. Kinnard told Byrd he was being laid off for "continuous verbal warnings," or failure to obey previous warnings. Byrd admitted he had been warned two or three times previously for failing to wear safety glasses. Byrd returned to work after his layoff and about March 15, around 4:15 in the morning, the shift began at 4:30, he met Wendell Wilmoth in the boilerroom for the purpose of signing him up in the Union. Byrd gave Wilmoth a union card which Wilmoth filled out and handed back to him together with a check. Kinnard ap- proached and asked Byrd, "Is this union business?" and he answered, "Yes, sir. Its on my own time." Apparently, the three men conversed for a minute or so and Byrd and Wilmoth then left the boilerroom to punch in. Byrd said he actually punched in at 4:33, but the clock recorded his time as 4:30, since it allowed a 6-minute leeway. Kinnard was right behind Byrd when he punched in. That afternoon Kinnard called the crew together to announce he was enforcing plant rules and that they should be at their place of work on time. The next morning, March 16, Kinnard told Byrd he was being laid off for 6 days for being late the previous morning and for "continuous verbal warnings." Byrd was then laid off but did not return to work at the expiration thereof for the reason that he joined the strike on March 19. Wilmoth testified he signed a union card in the manner described by Byrd. He further stated Kinnard saw him sign the card and asked him and Byrd if "that had anything to do with the union" and they answered yes. Wilmoth then went to work and was not thereafter laid off. Clifford Pearce said he remembered the incident when Byrd signed up Wilmoth and that he was immediately behind Byrd when he punched in that morning. Nothing was said to Pearce about punching in late that day. Pearce joined the Union during January. Kinnard did not testify at the hearing. The uncontested testimony shows that Byrd solicited Wilmoth to sign a union card and when Kinnard asked if they were transacting union business they admitted they were. That ended the conversation insofar as its related to union matters. Byrd then punched in as set forth above. The next day, March 16, he was given a 6-day disciplinary layoff for being late the previous morning and for "continuous verbal warnings." Wilmoth was not laid off, nor was Pearce, who punched in after Byrd. In essence, the General Counsel argues the discriminatory character of the layoff is established by the fact that Byrd was only 3 minutes late reporting for work, that the Company had a lenient policy in this respect, and Byrd had received no prior warnings for tardiness. Further, the layoff came quickly after his solicitation of Wilmoth and disparity of treatment is spelled out by the fact that Pearce was not disciplined for punching in late, nor was Wilmoth who was a party to the solicitation. Plainly, there is no evidence whatever of any disparity in the treatment of union and nonunion employees.15 Thus, there is no testimony that any nonunion men reported after Byrd that morning, or any other morning, and were not reprimanded. It is true Pearce punched in immediately after Byrd and was not disciplined, but Pearce had been a member of the Union since January and there is no indication he had received prior warnings for any reason. Again, and there is no testimony on this point, it may be that Pearce went directly to his work station after punching in whereas Byrd may have been delayed in reaching his place of work. Accordingly, I do not infer Byrd's layoff was discriminatory merely because the Company failed to take similar action against Pearce. I also fail to see how the Company's failure to suspend Wilmoth supports the General Counsel's position. To me it proves the contrary. The facts show Kinnard caught Byrd soliciting Wilmoth to join the Union, but he uttered no threats or warnings of any kind to them. The next day Byrd was laid off but nothing hapepned to Wilmoth. Surely, if the Company was engaging any campaign to discourage membership in the Union it would have disciplined Wilmoth as well as Byrd for both were equally participating in organizational activities. The fact that no action was taken against Wilmoth convinces me that Byrd's solicitation had nothing to do with his suspension. I, therefore, find Byrd was not discriminatorily laid off. Here, there is no contention the Company was enforcing an invalid "no-solicitation" rule. As stated above, the Regional Director did not vacate and set aside this provi- sion in the settlement agreement. 15 See Wayline, Inc., 119 NLRB 1698, 1706-1707. LOCK JOINT PIPE COMPANY 963 The Photographing of the Strikers The complaint as amended at the hearing alleges that Pitsenbarger and Johnson photographed the activities of the striking employees on March 19. Johnson related that on the morning of March 19, he was in his office and observed about 20 or 25 men standing at the east gate entrance to the plant. He and Pitsen- barger obtained their movie cameras and went to the gate to take pictures of the mass picketing but, apparently, they were unsuccessful for the men dispersed as they ap- proached the gate. Johnson had been advised by his attorney that the Union had engaged in mass picketing at other plants and in order to obtain an injunction to prevent this type of picketing it would be necessary to secure evidence of mass picket- ing at the plant. That was the reason Johnson and Pitsenbarger took or attempted to take pictures of the strikers. Rekie, who was picket captain, said that on March 19, the Union had two pickets carrying signs at the east or main gate but many cars were parked nearby and a number of men "milled around" the gate to find out if the strike was effective and when they would perform picket duty. Rekie saw Johnson and Pitsenbarger take pictures of the men on this occasion as well as the next day. Brock stated there were only two pickets at the entrance but a number of cars were parked on the street, the closest one being about 150 feet from the gate, and a lot of strikers were in the area, "all up and down the highway." Brock saw Johnson and Pitsenbarger taking pictures of the strikers on two occasions and told them they were violating the law by doing so without their permission. Byrd estimated about 100 strikers were in the area, some 20 yards from the gate. The Board has held that an employer by photographing, or pretending to photograph, organizational activities such as the distribution of literature by union representatives to his employees or of employees attending or leaving a union meet- ing thereby interfered with, restrained, and coerced his employees in the exercise of their rights guaranteed under the Act in violation of Section 8(a)(1) thereof.18 Here the Company was concerned about mass picketing at its premises and planned to seek injunctive relief if it occurred. Consequently, when a large number of strikers appeared in the area of the main gate the morning of the strike, Johnson and Pitsen- barger took, or attempted to take, motion pictures of the crowd as proof that the Union was engaging in mass picketing to support the Company's contemplated in- junction proceeding. Under all the circumstances, I find that was the purpose of photographing the strikers. The General Counsel of the Board has administratively held that an employer did not violate Section 8(a)(1) of the Act by taking photographs of picket-line activities of strikers, since such photographs were taken to support efforts to obtain an injunction against serious picket line conduct.I7 I find the Company did not unlawfully photograph, or pretend to photograph, the strikers. Conclusions Having found the Company has not engaged in unfair labor practices as alleged in the consolidated complaint as amended in Cases Nos. 16-CA-1616 and 16-CA- 1633, I shall recommend that the complaint be dismissed. Having found that the Company did not violate the Act subsequent to entering into the settlement agreement in Case No. 16-CA-1533, I shall recommend that the settlement agreement be reinstated.I8 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. The operations of the Respondent occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint as amended in Cases Nos. 16-CA-1616 and 16-CA-1633. 4. The Respondent has not engaged in unfair labor practices subsequent to the execution of the settlement agreement in Case No. 16-CA-1533. 10 Colvert Dairy Products Company, 136 NLRB 1508; General Engineering Inc., et al.,, 131 NLRB 901 ; Faulhaber Company, 129 NLRB 561. 17 Adm. Rul., No. SR-905, 47 LRRM 1011. See also Adm. Rul., No. SR-1059, 47 LRRM. 1207, and No. SR-1096, 47 LRRM 1227. 18 Peter Kiewit Sons' Co., 136 NLRB 119. 708-006-64-vol. 141-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint as amended be dismissed in its entirety. I further recommend that the settlement agreement in Case No. 16-CA-1533 be reinstated. Cless B. Davis d/b/a Queen City Transports and Paul E. Merrill, its General Manager and Chauffeurs, Teamsters, Warehouse- men and Helpers, Barre, Vermont, Local Union No. 597. Case No. 1-CA-3786. March 28, 1963 DECISION AND ORDER On October 12, 1962, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel and Charging Party, herein called the Union, filed briefs in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning and Brown]. 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 briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following exception and modifications. The Trial Examiner concluded that the Respondent violated Section 8 (a) (5) of the Act by refusing to bargain with the Union which was the designated representative of a majority of the employees in an appropriate unit. This conclusion is in part predicated upon the Trial Examiner's finding that five winter drivers, who had been ter- minated a week prior to the bargaining request, should be included in the unit and their cards counted in determining the Union's ma- jority status. We disagree with the Trial Examiner's finding as to the winter drivers and, consequently, with his ultimate conclusion. It appears, and we find, that on March 15, 1962, Respondent dis- tributed letters to five winter drivers advising them that no work I Respondent's request for oral argument is denied as, in our opinion , the record, in- cluding Respondent's exceptions and brief, adequately presents the issues and the positions of the parties. 141 NLRB No. 84.