R.C. Can Co.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. If the foundation is deemed to be skills and/or functions within an administrative unit, there are still employees in this so- called appropriate unit who do not belong because of their diverse skills and functions. As the unit found appropriate cannot be supported on any rota- tional basis, I dissent from my colleagues' refusal to set aside the Regional Director's unit determination. R.C. Can Company and United Steelworkers of America, AFL- CIO. Case No. 16-CA-1651. August 26, 1963 DECISION AND ORDER On March 18, 1963, Trial Examiner John P. von Rohr issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. The General Counsel also filed exceptions, a supporting brief, and a reply 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 In- termediate Report and the entire record in the case, including the exceptions, brief, and reply brief, and hereby adopts the findings,' 1 On April 24, 1963, the General Counsel moved for leave to file a reply brief. By letter dated April 29, 1963, General Counsel 's motion was granted and the reply brief was re- ferred to the Board for consideration . Thereafter, on June 5, 1963 , Respondent moved for leave to file a response to General Counsel's reply brief . Respondent also moved to strike part of General Counsel's reply brief. On June 10, 1963, the General Counsel filed an opposition to Respondent 's motion for leave to file a response to General Counsel's reply brief and the motion to strike a part thereof . By wire dated June 10, 1963, Re- spondent's response to General Counsel's reply brief was accepted and referred to the Board for consideration . In addition , Respondent's motion to strike a part of the reply brief and General Counsel 's opposition thereto were referred to the Board for a ruling thereon. In essence, Respondent contends that that portion of General Counsel 's reply brief whereby General Counsel "objects and excepts to the Trial Examiner 's failure to make a specific finding . . that Respondent violated Section 8 ( a) (5)" constitutes a late excep- tion We agree. The last day for filing exceptions was April 15. General Counsel's brief was dated April 24. As these exceptions are clearly late, we will grant Respondent's mo- tion to strike that portion of the reply brief relating to these belated exceptions. 2 Respondent excepted to the Trial Examiner 's reliance on Lee's testimony as to the efforts of Lee and U S. Conciliator White to arrange further negotiating sessions after February 26, 1962. Lee testified in great detail as to his contacts with White during this period and as to what White reported to him. Inasmuch as Lee's testimony as to what White told him was received in evidence without objection by Respondent's counsel, we find no merit in this exception. 144 NLRB No. 26. R.C. CAN COMPANY 211 conclusions, and recommendations of the Trial Examiner with the following modifications:I We agree with the Trial Examiner that Scott was discriminatorily laid off on April 26, 1962, because of his union activity and for giving testimony under the Act. However, we do not agree with the Trial Examiner that Scott should not be reinstated because of the altercation between himself and Plant Manager Smith. In our opinion, Scott's expression on May 7, advanced belatedly by Respondent as a cause for discharge, does not warrant the withhold- ing of the customary remedy. Whenever there is a discriminatory discharge for the foregoing reasons, the remedies of reinstatement and backpay must be provided to effectuate the purposes of the Act, except in those instances where the dischargee has engaged in such aggravated and gross misconduct which renders him unfit for further employment 4 Scott's spontaneous utterance under the extreme prov- ocation present in this case hardly meets this test.' Moreover, it seems clear that the incident was seized upon by Respondent long after its occurrence as a pretext for its unlawful failure to recall him. Having been employed by Respondent for approximately 31/2 years, Scott had established a near perfect employment record. Plant Man- ager Smith, himself, had highly praised Scott's work and conduct and Plant Superintendent Hargrave concurred in this appraisal. In seek- ing an interview with Smith on May 7, Scott, by enlisting the presence of the other union committee members, made it clear he was acting as chairman of the Union's grievance committee. Needless to say, Scott was then under the stress of his discriminatory treatment by Smith and it is also quite evident that Smith had no intention of discussing the merits of the layoff with Scott. This is manifest by Smith's state- ment that there was nothing to talk about and his order for Scott to leave, purportedly because Scott used the word "hell." By peremp- 8 Members Fanning and Brown agree with the General Counsel that Respondent violated Section 8(a) (5) when it failed to bargain with the Union over the decision to move the 21! -inch line from Arlington to Denison , Texas. These members find that the removal of a segment of the production process involves a matter pertaining to "terms and condi- tions of employment" and is a mandatory subject of collective bargaining concerning which Respondent could not, with impunity , act unilaterally . See Town ci Country Mania facturing Company, Inc , et at, 136 NLRB 1022 , enfd 316 F 2d 846 ( C.A 5) ; Fibreboard Paper Products Corporation, 138 NLRB 550 , enfd 322 F. 2d 411 (C A D C ). However, in the absence of any exception by the General Counsel or the Charging Party to the failure of the Trial Examiner to recommend a return of this production line to Denison, or any request for such remedial order, Members Fanning and Brown will not direct such action in this case. 4 See Georgia Rug Mill, 131 NLRB 1304 , enfd in pertinent part 308 F 2d 89 ( C.A. 5) ; Schott Metal Products Company, 128 NLRB 415; Stewart Hog Ring Company, Inc., 131 NLRB 310. 5 N L R B . v. Thayer Company and H . N. Thayer Company, 213 F. 2d 748 ( CA. 1), cert. denied 348 US 883 ; N.L.R B v. Local 833, International Union , United Automobile, Aucraft and Agricultural Implement Workers of America (Kohler Co ), 300 F 2d 699 (CA.D C.), cert denied 370 U S 911 727-083-64-vol. 144-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torily ordering Scott to leave, Smith thus further provoked Scott by making it clear that Respondent was persisting in maintaining Scott's unlawful layoff status. Scott reacted to this additional provocation with an utterance which was contrary to his normal behavior pattern, but it is apparent that Smith neither resented nor took the statement seriously. Furthermore, as Smith is no longer employed at this plant by Respondent and as current supervisors have stated they have no ill feeling toward Scott, reinstatement of Scott would not militate against a harmonious plant relationship. In these circumstances, we find that Respondent's failure to rein- state Scott is but a continued expression of its unlawful motivation leading to his layoff; and the incident of May 7, 1962, was a pretext for, and in any event does not excuse, its failure to reinstate him. Accordingly, we shall direct that Respondent reinstate Milford Scott and make him whole for any loss of pay he may have suffered.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 1. Paragraph 2(b) shall be amended to read as follows : Offer to Milford Scott immediate, full, and unconditional rein- statement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and make hull whole for any loss of earnings that he may have suffered as a result of the discrimination against him from the date of his discharge to the date of his reinstatement in the manner set forth herein in the section entitled "The Remedy." 2. The Appendix attached to the Intermediate Report is modified by amending the eighth substantive paragraph to read as follows : WE WILL OFFER Milford Scott reinstatement to his former or substantially equivalent position, without prejudice to his senior- ity or other rights and privileges, and we shall make him whole for any loss of pay suffered as a result of our discrimination against him. 6 As, in his view , a nondiscriminatory layoff decision is not a mandatory subject of bar- gaining, .Member Rodgers would not adopt the Trial Examiner' s finding that Respondent violated Section 8(a) (5) by failing to bargain with the Union concerning its April 26 lay- off Further, Member Rodgers would find no violation with respect to either Respondent's decision to move the 2% -inch line, or Respondent's failure to bargain as to the effect of that move. See his dissenting opinions in Town & Country Manufacturing Company, Inc., et at, supra, and Fibreboard Paper Products Corporation, supra. Member Rodgers also disagrees with the majority' s ordering the reinstatement of Scott. In his opinion, the record adequately demonstrates that Scott was justifiably denied reinstatement because of his abusive conduct toward an official of management in the presence of other representa- tives of management as well as rank-and-file employees , and that such conduct was not "provoked" or "further provoked" by Smith , for in Scott's own words , "the first thing I said . . I asked him if he had guts enough to talk to me alone " R.C. CAN COMPANY 213 3. The Appendix attached to the Intermediate Report is modified by amending the ninth substantive paragraph to read as follows : WE WILL NOT in any other manner interfere with our employees' rights as guaranteed in the Act. 4. The Appendix attached to the Intermediate Report is modified by adding the following paragraph immediately below the signature line : NoTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge filed on May 1 and 16, 1962, respectively, the General Counsel for the National Labor Relations Board for the Regional Director for the Sixteenth Region (Fort Worth, Texas ), issued a complaint on October 19, 1962, against R.C. Can Company, herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), (4), and (5) of the Na- tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Dur- ing the hearing the General Counsel added a number of allegations to- the com- plaint, all of which he incorporated in an undated , amended complaint which was received in evidence as General Counsel Exhibit No I-T. The Respondent's answer, as amended , denies the allegations of unlawful conduct alleged in the complaint, as amended. Pursuant to notice, a hearing was held in Fort Worth, Texas, on October 17, 18, and 19 and November 12, 13, 14, and 15, 1962, before Trial Examiner John P. von Rohr. All parties were represented by counsel and were afforded full op- portunity to adduce evidence , to examine and cross-examine witnesses , and to file briefs. Briefs were filed by the General Counsel and by the Respondent and they have been carefully considered . Subsequent to the close of the hearing , the Re- spondent filed a motion to correct record. The General Counsel filed a motion in opposition in which he objected to 52 of the 163 proposed corrections. Having reviewed the proposed corrections, I am satisfied that none of them would have any effect upon the merits of the case or any of the matters in dispute. Accord- ingly, the Respondent's motion is granted.' Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT R.C. Can Company is a Missouri corporation , with plants located in various States , where it is engaged in the manufacture and sale of fiber cans , containers, and related products. The sole plant involved in this proceeding is its plant lo- cated at Arlington, Texas. During its past fiscal year, the Company in the course of its operations at the Arlington, Texas, plant produced products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from the Arlington plant to customers outside the State of Texas In the same period it purchased goods and materials valued in excess of $50.000 from places outside the State of Texas. The Respondent concedes and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 'The Respondent's motion and the General Counsel's motion in opposition thereto are hereby received in evidence as Trial Examiner 's Exhibits Nos 1 and 2 , respectively 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union or the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The layoff of Milford Scott 1. Background The complaint alleges that Respondent discharged and/or laid off Milford Scott on April 26, 1962, in violation of Section 8(a)(1), (3), and (4) of the Act. The 8(a) (4) violation is predicated upon Scott's giving testimony in R.C. Can Company, 140 NLRB 588, where he appeared on April 23 and 24, 1962, as the General Coun- sel's principal witness. The parties stipulated that the entire record in that proceed- ing be incorporated and received in evidence in the instant case. However, the Board decision cited above having issued in the meantime, it will suffice to sum- marize the following Board findings which I regard as pertinent to the issue involv- ing the alleged discrimination against Scott in this case. The Charging Union was certified by the Board as the collective-bargaining agent of Respondent's production and maintenance employees on May 29, 1961.2 Milford Scott became chairman of the employee bargaining committee and remained such until the time of his layoff on April 26, 1962.3 On January 29, Scott stood by the plant exit just after work and passed out leaflets which, in effect, protested that no contract had been reached since the negotiations began on June 13, 1961. On January 31, Scott organized and led a walkout of eight employees which began at 10 a.m. and ended at 3:30 p.m. At approximately 3:45, the employee bargaining committee entered the plant and met with Plant Manager Lloyd T. Smith. Scott advised Smith that he had been selected as spokesman for the group and indicated "that the striking employees would like to return to work." It is sufficient to note here that the employees were not reinstated at this time. On February 5, Scott and Brewer met with Smith at the plant for the second time. Scott again acted as spokes- man and again advised Smith that the employees were ready to return to work. On February 19, the employees who had walked out on January 31 were reinstated without loss of benefits or seniority. While the foregoing does not purport to detail all of the facts involved, the Board found that Respondent violated Section 8(a)(1) and (3) of the Act by failing and refusing to reinstate the striking em- ployees upon their request to return to work. Of particular pertinence to the in- stant case is that the findings and conclusions of the Board in the foregoing case show that Scott unquestionably was the most militant employee to engage in union activities at Respondent's plant and that the Respondent clearly had knowledge that such was the fact. 2. The April 26 layoff Four female and two male employees were laid off at Respondent's plant on April 26, 1962. These included Mary Lowry, Joyce Ewton, Lila Mae Bracheen, Alva Lynch, and Milford Scott. The General Counsel does not challenge the testimony of Plant Manager Smith to the effect that a layoff of some employees was necessitated due to the loss of a contract for 2-inch biscuit cans. Rather, it is the General Counsel's position that some other employee should have been laid off in Scott's stead, i.e., that the selection of Scott for layoff at this time was dis- criminatorily motivated. As noted more fully hereinafter, Respondent contends that Scott was laid off in accordance with its seniority policy Scott was hired by the Respondent as a floorman on October 2, 1958. In September 1960, Scott was given a position in Respondent's commercial department where he learned the work of operating and setting up convolute winders .4 There- after, and for the 21/2 years preceding his layoff on April 26, Scott was classified as a convolute setup man. As contrasted to production work, this job principally 2 Case No. 16-RC-2909 (not published in NLRB volumes). Unless otherwise indicated, all dates hereinafter referred to are in 1962. ' Respondent's brief, as in accord with the testimony, describes the basic structure of the commercial department as follows : "The commercial department embraced the con- volute winders on which fibre cans of various shapes and sizes were wound, the crimpers which were used in affixing the metal bottoms to such fibre bodies, and two spiral winders which were used in making spirally wound fibre bodies for cans or tubes of various diame- ters and lengths." R.C. CAN COMPANY 215 was that of maintenance and repair.5 Thus, Scott was responsible for the maintenance, repair, and adjustment of 3 convolute winders, 12 crimpers, a stitching machine, and a threader. On occasion Scott's duties also included welding and the making of parts in the machine shops. I note here that the General Counsel in his brief characterized Scott's work as a "highly skilled job," while Smith for the Respondent described it as a "simple job." Without belaboring this report with all the testi- mony on the subject, I am satisfied, and I find, that the convolute setup job in reality was a semiskilled job. In this connection, I credit Scott's testimony that it took him about 4 months to learn the skills which this job required. On April 26 all employees to be affected by the layoff were called into the office as a group about 15 minutes before quitting time (3:15 p.m.). There, and in the presence of the negotiation committee,6 these employees were notified of their layoff by Lloyd Smith, the plant manager, Verne Hargrave, the plant superintendent, and Richard Cargill, assistant plant superintendent. We need have no further con- cern about Alva Lynch and the five female production employees who were laid off at this time for the General Counsel does not contend any discrimination as to these employees. On the early shift of the following day Scott' s job was taken over by Robert Turner, an employee who had greater plant seniority than Scott.7 Turner previously had operated one of the two spiral winding machines in the commercial depart- ment. The other was operated by employee Paul Huffman. One of these was shut down on April 26, thereby eliminating one of these jobs. Turner was senior to Huffman, but Huffman had only 3 days greater seniority than Scott. Turner was first apprised that he would be transferred from his spiral winder job shortly after the group meeting in which the layoffs were announced. According to Turner's unrefuted and credited testimony, Hargrave at this time called him into his office and advised him that one of the spiral winder jobs was to be abolished and that this would afford him the "opportunity" to transfer to the convolute setup job because Scott was to be laid off. Turner further testified, also without con- tradiction, that "He [Hargrave] told me that even though I had more seniority than Paul Huffman he would appreciate it if I didn't move Huffman." Although Turner first told Hargrave that he was not "too hot for the idea," he finally agreed to try the convolute set-up job. After spending only 5 hours on this job, Turner told Foreman George Tekell that he did not like the work and that he never would be satisfied with it. When Hargrave was so advised he told Turner that he could return to his old department and bump Huffman. Turner, however, indicated that he would prefer to go to another department and operate the 2-inch biscuit winder. Hargrave assented and Turner that same day went to the biscuit line where he was permitted to bump employee Billy R. Murphy. Murphy, in turn, was assigned to Scott's convolute setup job which Turner had just abandoned. At this point we must digress to note that Murphy himself had just been transferred to the biscuit line on the preceding day. Until April 26, Murphy's regular job, one which he had held for 31/2 years, was that of spiral winder operator on the cinnamon line. It was shortly after the general layoff announcement on April that Cargill took Murphy aside to tell him that the cinnamon line was to be shut down and that his seniority entitled him to bump employee James Harris, a biscuit winder operator on the 2-inch biscuit line.8 Murphy took Harris' place on the morning of April 27. As noted, Murphy worked on this job for but a few hours when he was replaced by Foster and transferred to the convolute setup job. In the meantime, Harris was advised by Cargill that he would be bumped back to floor work.9 Concerning his status after April 26, it was Harris' unrefuted testimony that for the following several weeks he relieved several other male production employees who were on vacation and that he then took his own vacation. He testified that upon returning to work, "I done several different jobs . . . I loaded out trucks , cinnamon cans, biscuit cans, and I did floor work, clean up around the biscuit line and [relieve] label men that was absent." Thus completes the numerous personnel moves from one job classification to another as a result of the April 26 layoff. 6 The convolute machines were operated by female employees As occasion necessitated Scott would fill in an relief. 9 The negotiating committee was called into the office at the time of the layoff In addi- tion to Scott, the other members were Martin Brewer and Paul Huffman 7 Turner was hired as a floorman on August 24, 1954. s The biscuit winder is also a type of spiral winder 0It does not appear that Harris bumped anyone out of a job 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Additional facts; conclusions as to Scott's layoff That Scott was competent, well qualified, and in all other respects a satisfactory employee is not open to question. Respondent concedes this to be the fact. Re- spondent's sole defense to the issue of Scott 's April 26 layoff is predicated upon the assertion that Scott was laid off in strict accordance with its seniority policy and not for any other reason. Respondent's layoff policy is expressed in its brief as follows: "The force reduc- tion was accomplished in accordance with the agreed upon procedure of laying off employees having least seniority with due regard for qualifications ." [Emphasis supplied.] 10 With Respondent's defense in mind, we turn to a further consideration of the facts. As has been noted, the end result of the various job maneuvering described in the preceding section was that Billy Murphy wound up by replacing Scott on the convolute setup job. Murphy, it will be recalled, was a production worker who for 31/2 years had operated the spiral winder on the cinnamon line. It is undisputed that Murphy had no experience whatsoever in convolute setup work or in any other type of maintenance and repair work. In his job as spiral winder on April 26, Murphy's hourly rate was $2.05. As of the same date , Scott received the hourly rate of $2.10 on his convolute setup job. Murphy testified without contradiction that upon being assigned to the convolute job he was given "at least six weeks" training as to the duties which this job required.il At this point certain conclusions are in order. First, to me the incongruity of replacing an employee engaged in maintenance and repair work with a production employee is apparent on its face . This is particularly true where , as here, the re- placement was inexperienced in this type of work and required a considerable amount of training to learn the duties and skills of the new job . Secondly, the implausibility of this action is further emphasized by the fact that the new job merited Murphy a 5-cent hourly wage increase, this nothwithstanding his lack of qualification for this work.12 Thirdly, and equally significant, it is apparent and I find that Respondent's action in replacing Scott with Murphy was made in patent contravention of its own policy that layoffs be made on a seniority basis, but with due regard for qualifications. As has been noted , the latter consideration was completely disregarded in the in- stance under discussion.13 But Respondent's motives become all the more suspect when, by carrying the situa- tion one step further, it is revealed that Respondent did not accord the same con- sideration or treatment to Scott as it did other employees when effectuating the April 26 layoff. Thus, the evidence reflects that on April 26 the Respondent retained in its employ four employees who had less seniority than Scott. These were Walter Dunn, Rufus Kevil, Lloyd Holland , and Martin Brewer. Since Dunn was a supervisory trainee I shall eliminate him from further discussion . But as to the other three, Respondent asserts that these were retained in lieu of Scott because Scott allegedly was not qualified to perform the work in which these employees were engaged. For the purposes necessary to this discussion it will suffice to consider the case of Lloyd Holland. After being first employed in July 1955, Holland quit his job in Octo- ber 1961. He was reemployed on February 19, 1962, but at that time admittedly lost his seniority because of his voluntary break in service . 14 Between 1955 and 1961 Holland was principally engaged in the setup , maintenance , and repair of spiral winders. Between the time of his return to the Company in February 1962, and the 11 This is in accord with the following unrefuted testimony of Scott concerning a state- ment of layoff policy made by Plant Manager Smith at one of the bargaining meetings: "Lloyd Smith said that he would follow seniority , plant seniority , where there was a job that was discontinued , the senior man could buck back in if he was gvahfied." [Emphasis supplied ] 11 Murphy was thus trained by Bobby Foster , an experienced maintenance employee Additionally , the maintenance foreman, George Tekell , continued to render him assistance when necessary. za When first approached by Hargrave, Murphy stated that he did not want the con- volute job. At this point, according to the unrefuted testimony of Murphy , Hargrave in- duced him further by stating that he would be "better off" if he took it and that "it would he more money." la All of the discussion as concerns Murphy is equally applicable to Turner. Turner, it will be recalled , first replaced Scott but remained on the job for only 5 hours before being replaced by Murphy . Like Murphy , Turner was a production emplovee who had never worked in the convolute job He also lacked any experience in maintenance and repair. 14 This was in accordance with Respondent's '.eniority poli cy. R.C. CAN COMPANY 217 April 26 layoff, Holland was assigned to various miscellaneous work. This prin- cipally included operation of the spiral winders, biscuit winders, and paper-slitter machine, in addition to which he also performed some part-time maintenance work. In arguing that Holland possessed greater skill than Scott, Respondent stresses that Holland had 1 year's schooling as a welder. However, not only does the record show that Scott was able to perform some welding work while in Respondent's employ, but it appears that Holland did very little welding work during the period prior to April 26.15 In any event, and even if it be assumed that Holland had greater general maintenance and repair experience than Scott, the fact remains that Respondent did not permit Scott to exercise his seniority and bump Holland even if it meant that Scott require some additional training. As noted heretofore, the exact reverse was true when Respondent permitted Murphy to bump Scott. In my opinion the only explanation for this obvious disparity in the treatment of employees-as well as the discriminatory application of its layoff-seniority policy-is that Respondent de- sired to be rid of Scott.16 As previously noted, Scott was by far the most aggressive union adherent among all Respondent's employees. Furthermore, his layoff on April 26 was effected only 2 days after a Board hearing in which he gave testimony that was decidedly adverse to the Respondent's interests. Any doubt of Respondent's antipathy toward the union activities of its employees is dispelled when it is considered that but a few months prior to the events herein Respondent engaged in other unfair labor pracices which were clearly demonstrative of such antipathy. Thus, in finding that on January 31, 1962, the Respondent discriminated against employees in violation of Section 8 (a) (1) and (3) of the Act, the Board in the prior proceeding 17 adopted the following finding of the Trial Examiner: Moreover even if some reduction-in-force had later taken place it is purely conjectural to assume that the fortuities of the situation would have been such as to include each or any of the strikers. I am persuaded and find that the emergency revision in work assignments and scheduling was retained in effect after 3:45 p in. on January 31 as a retribution against the striking employees and that the economic defense advanced by Respondent is a mere pretext. I conclude and find moreover that Respondent visited this retribution upon the employees because they had engaged in protected activities. [Emphasis supplied.] In addition, Respondent engaged in further unfair labor practices, including threats to get rid of Scott, as hereinafter found. Accordingly, and for the reasons cited above, I find that Respondent laid off Milford Scott on April 26, 1962, because of his union activity and for giving testimony under the Act, thereby discriminating against him in regard to his hire and tenure of employment, discouraging member- ship in the Union, and committing an unfair labor practice within the meaning of Section 8 (a) ( 1), (3),and (4) of the Act. 4. The May 7 incident ; Respondent bars Scott from further employment The Respondent asserts that on May 7, 1962 , Scott engaged in certain conduct which has barred him from any further employment with the Company. It is Respondent's position that for all practical purposes Scott was discharged at this time.is There is no dispute as to the facts , Scott having admitted what occurred. On the day in question Scott drove to the plant by himself and asked to see Plant Manager Smith When advised that Smith would see him , he requested and was granted per- mission to be accompanied by employees Huffman and Brewer, these being the 16 Note Holland's following testimony on the subject: Q (By Mr ECKHARDT) Do you recall any specific welding you did before April 26 while working at the R C. Can Company5 [Question repeated.] A No, nothing big. 15 This conclusion is further buttressed by the following: Thus, it will be recalled again that Holland lost all seniority when he quit his employment with the Respondent in October 1961 Accordingly, Respondent's alleged seniority policy was rendered meaning- less when it did not permit Scott to exercise his seniority to bump Holland As a matter of fact, and as the General Counsel points out, this course of action in any event would have been rendered unnecessary if Respondent had followed the normal industrial pro- cedure of having Murphy (or Foster) bump into a production job rather than into the area of maintenance and repair. 17 R C Can Company, supra 18 During the hearing Respondent asserted that but for the May 7 incident Scott would have been recalled to the position of bag sealer or floorman on May 28. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the bargaining committee. After a few minutes wait in the outer office, and without Scott's telling the others the purpose of this visit, all three were ushered into Smith's office. What happened then can best be described in Scott's own words: And the first thing I said to Mr. Smith was, I asked him if he had guts enough to talk to me alone. And he said he didn't have anything to talk to me about since the lay-off. And at that time I said I thought I had a hell of a lot to talk about. And in response he told me that I couldn't curse in his office like that and to come on out. And at that time I went outside and waited, and Mr. Smith stayed inside. And then I went back [in about 5 minutes] . I came back and asked him if he didn't have enough guts to finish what he started. And he again stated he didn't have anything to say since I had been laid off. And I believe I stated then that it may not be that night or the next night, but I would kick hell out of him the first chance I got. Smith's version of the above incident was substantially the same as Scott's but he elaborated to say that Scott prefaced his outburst upon returning to the office the second time by stating that he wanted "everybody to hear this," including Huffman and Brewer who were still present. Smith's testimony to this effect is credited. The General Counsel contends that Scott's conduct on May 7 was not so serious as to render him unfit for future employment or to constitute a bar to his reinstate- ment. I disagree. The cases cited by the General Counsel in support of his position are readily distinguishable on their facts. Except for actual physical assault, I can perceive of no conduct more serious than Scott's threat of physical violence made to the head of the Company in the presence of two employees. Indeed, since nothing of a provocative nature occurred upon his return to the plant one might reasonably conclude that Scott's acts and conduct on this occasion were deliberate and pre- meditated. Granted that Scott may have been the victim of an unfair labor practice, a lawful remedy was provided therefor under the Act. In fact such remedy already had been elected when the Union filed a charge on his behalf on May 1. Accord- ingly, and in view of all the foregoing, I shall recommend that Respondent not be required to reinstate Scott. B. Interference, restraint, and coercion The General Counsel adduced evidence , the entire testimony concerning which is unrefuted, of the following incidents alleged to be in violation of Section 8(a) (1) of the Act: 1. Concerning a statement made to Scott by Foreman Charles Tibbs 19 in Novem- ber 1961 , Scott testified : "And then at that time he stated that I'd be better off without a union, that after the contract was signed , that the Company could take all our privileges, our smoking privileges . Said there wouldn't be any more of that sneaking in the cafeteria and smoking or running out in the shipping dock." 2. Foreman Tibbs was transferred to Respondent's Dennison plant during the month of December 1961. Scott testified that on the day of his transfer Tibbs came up and told him, "I had better watch myself, that Lloyd Smith was out to get some- thing on me and get rid of me." 3. Robert Turner testified concerning a conversation he had with Acting Super- visor James White in November or December 1961, as follows : James White came to my window . and told me that Verne Hargrave 20 had instructed him to learn all he could about the convolute setup job. They were going to get rid of Milford Scott." Turner's testimony concerning this incident was corroborated by employee Martin Brewer who was present and overheard the conversation. 4. Employee Alva Lynch testified that on about November 15, 1961, Acting Supervisor White told him: "This damn bunch is never satisfied . Well Mr. Hargrave wants me to learn Milford Scott's job . They are going to lay him off or do some- thing with him." With respect to incident ( 1), above, it is well settled that a threat to remove em- ployee privileges in the event of employee unionization is unlawful and violates Section 8 (a) (1) of the Act, and I so find. As to incidents (2), (3), and (4), it is 11 Although Respondent initially took the position that Tibbs was not a supervisor within the meaning of the Act after September 1, 1962, it appears to have abandoned this position when the evidence revealed that Respondent never notified the employees as to any change in Tibb's status and that Tibbs, in fact, continued to exercise supervisory functions up to the time he was transferred from the Arlington plant 20 The transcript here incorrectly refers to Hargrave's first name as James (Page 339, line 4 ) It is hereby corrected accordingly. R.C. CAN COMPANY 219 true that the threats against Scott did not include specific reference to his union activities. Nonetheless, Scott was known to be the chairman of the negotiating committee at the time such threats were made. In view of this and Respondent's entire conduct throughout the period involved in this case, the inference is in- escapable, as I am sure it was to the employees involved, that the threats against Scott related to his union activities. Certainly, there is no evidence that Tibbs or White had anything else in mind. Accordingly, I find that the statements in question were unlawful under Section 8 (a) (1) of the Act. C. The alleged refusal to bargain 1. Introduction As noted at the outset of this report, the Union was certified by the Board on May 29, 1961, as the bargaining agent of Respondent's production and maintenance employees. Thereafter, to and including a meeting held on February 26, 1962, the parties participated in a total of 14 bargaining sessions. The February 26 meeting was the last time the parties met. Preliminarily, it is pointed out that the General Counsel does not contend, nor does the complaint allege, that the Respondent refused to bargain in good faith during the negotiations which were conducted during the period prior to and including the February 26 meeting. Thereafter, however, the Respondent is charged with having engaged in various acts and conduct, all of which are alleged to constitute, indi- vidually and collectively, a refusal to bargain within the meaning of Section 8(a) (5) of the Act. While each of the items thus alleged are considered below, I shall begin with those which I regard as being the most serious alleged violations of Section 8(a) (5), these being that- (1) Respondent refused to meet with the Union at reason- able times; and (2) Respondent unilaterally granted its employees a general wage increase in excess of its last wage offer to the Union. 2. The alleged refusal to meet at reasonable times Notwithstanding that the parties had held 13 prior negotiating meetings, a sub- stantial number of issues about which the parties were concerned remained unre- solved at the time of the February 26 meeting. These included wages, strike and lockout clauses, checkoff, work by supervisors, automatic progression for beginners, shift differentials, and jury-funeral pay. Rather surprisingly, the matter of wages had been left aside and it was not until the February 26 meeting that the parties made their first wage proposals. With respect to wages, the Respondent at this meeting proposed the following: a 10-cent hourly wage increase to all employees in the unit to be effective March 1, 1962; thereafter, hourly wage increases of 5 cents and 6 cents to be added on March 1, 1963, and March 1, 1964, respectively; the contract to be effective for 3 years. The Union countered with the following: a 12-cent in- crease to be effective on March 1, 1962, and a 7-cent increase to be effective on March 1, 1963; the contract to be effective for 2 years. Commissioner White, a representative of the Federal Mediation and Conciliation Service who was present at this meeting, was unsuccesful in getting the parties to reach any wage agreement. In view of its importance to the underlying issues of the case, I must here stress what the evidence discloses to be, and which I find was the agreement or understanding reached at this meeting with respect to the holding of future bargaining meetings. Thus, according to the unrefuted and credited testimony of J. A. Lee, staff representative and the Union's chief negotiator, Karl Mueller, Respondent's attorney and its chief negotiator, replied in response to his request for a definite meeting date that he (Mueller) was committed up to the week of March 5, but that he (Mueller) would communicate with Commissioner White during that week and arrange a date with the commissioner for further negotiations. It was with this understanding that the meeting of February 26 ended. During the week of March 5, Commissioner White called Lee to check his under- standing as to whether he (White) was to call Mueller or vice versa with respect to arranging the next meeting. Lee advised White that Mueller had agreed to call him, to which White replied, "That is the way I understood it and I wanted to check it with you." 21 Before closing the conversation, White stated that he had not yet heard from Mueller, but that he would call him to see if he could arrange for a meeting. a The credited testimony of Lee. Lee also indicated that a check of notes he had taken at the February 26 meeting confirmed that this had been the arrangement. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As already has been indicated, no further bargaining meetings took place between the parties. But what happened subsequent to the above telephone conversation be- tween Lee and Commissioner White? Concerning this the evidence is also un- refuted. Thus, Lee testified that between February 26 and July 10, 1962, he called Commissioner White's office at least once each week in an effort to arrange for further bargaining meetings. The frustration of Lee's efforts is described in his own testimony as follows: I called Commissioner White's office, I would say at least once each week. Sometimes I talked to Mr. White and other times I would talk to his secretary, Mrs. Jones, to try to find out, to find out if the date had been set up, or what was being done about getting a date set up. And I was always told that no date had been set. Karl was, Mr. Mueller was either out of town or was tied up on some other case. And Mr. White said he had been having trouble even getting in touch with Mr. Mueller. On one occasion I remember Mr. White did say that he had talked to Harold Mueller, and Harold had told him that Mr. Karl Mueller was due in town some certain week, I don't remember what week it was, at which time Karl Mueller would be in touch with Commissioner White And Mr. White said that week that I referred to, that Mr. Mueller had not called. But Mr. White had called Karl's office, and Mr. Mueller was not in his office. He was unable to set up a date during that period for negotiations. While the above in itself is indicative of Respondent's uncooperative and negative approach to its bargaining obligations, Respondent's failure in this respect is further emphasized when it is considered in conjunction with the other unlawful conduct herein found, including, as hereinafter pointed out, various unilateral action taken by Respondent in derogation of its duty to bargain. I have difficulty in perceiving Respondent's defense to the allegation under dis- cussion. In its brief, the Respondent states only as follows: An impasse was reached in the fourteenth contract bargaining session on February 26, 1962. The commissioner of conciliation did not call or fix a date for another meeting in view of the intransigence of the parties. I would first note that the second statement in the quoted portion above is erroneous as to fact. As I have heretofore found, the evidence establishes that White in fact did contact Respondent's attorney but was unable to arrange a meeting due to the latter's engagement in other affairs.22 Furthermore, it will be recalled that at the February 26 meeting Mueller had agreed to call White during the week of March 5 for the purpose of fixing a further meeting date This he failed to do. The record is devoid of any evidence that Mueller made any attempt to contact White until about July 27, a matter which is discussed hereinafter and did not involve a request for a general bargaining meeting. Returning to the quoted portion of Respondent's brief, I also am unable to agree that "an impasse was reached ... on February 26 " If it is Respondent's assertion that it was justified in refusing to meet any further with the Union because an impasse was reached at the February 26 meeting, such contention is negated by the very fact that Respondent's attorney agreed to fix a date for further negotiations before leaving that meeting. But in any event, the status of the negotiations at the conclusion of this meeting are hardly indicative of an impasse. It will be recalled that it was on February 26 that the parties for the first time made their respective wage proposals. Certainly, it cannot be assumed that the processes of collective bar- gaining contemplate immediate and final acceptance or rejection of the other party's first proposal I would think this particularly true where the proposal in question relates to such a vital matter as wages There must be some opportunity for either party to yield from its original position or to modify its initial demands A true and bona fide impasse exists only when it becomes apparent that further negotiations would be futile. Such, I find, was not the case here. I regard Lee's testimony concerning his conversations with White admissible for two purposes First, it is admissible as showing the steps taken by Lee to arrange for a negotiating meeting Second, I also regard as admissible the reports which Lee received from White as to the efforts he (White ) made to arrange a meeting with Mueller. Thus, the credited and unrefuted testimony of Lee reveals that all parties had agreed to the designation of White to act as the third party to arrange future meetings Since White was vested with such authority, it is reasonable to assume that he thereby also was authorized to make reports to either party concerning whatever actions he took in this regard. R.C. CAN COMPANY 221 Accordingly, and in view of all the foregoing, I find that the Respondent, by failing and refusing to make itself available to meet and bargain with the Union during the period subsequent to February 26, 1962, unlawfully refused to bargain within the meaning of Section 8(a)(5) of the Act.23 3. The unilateral wage increase of July 27 On July 10, 1962, the Respondent sent a letter to the Union, signed by Plant Manager Smith, advising of its intention to grant an hourly wage increase of 15 cents to its production and maintenance employees to be effective on July 16. The letter concludes as follows: We assume that your organization will not object to the employees receiving this increase or to the increased rates set out in the enclosed schedule. This communication is in recognition and satisfaction of such rights as you may have as the bargaining representative of the employees affected. Should you have any objections to the employees receiving these increases, please let us hear from you promptly. We propose to make an announcement to the employees concerning the matter on Monday, July 16, 1962, and we would be glad to report that your organization has no objection to the Company giving these increases. On July 11, upon receipt of the above letter, Union Representative Lee called Smith and announced his surprise at the proposed 15-cent wage increase. In this connection Lee credibly testified that he told Smith "That [the wage increase] is much more than we agreed to settle the contract with you at our last negotiations on February 26th. It is quite a bit more than you offered at our last meeting. Why can't we get together in a meeting and settle the whole contract." The conversation continued. Lee next proposed to meet with Smith without the presence of Respond- ent's attorney, but Smith refused. Smith then proposed that they meet on July 13 in his attorney's office. Lee was agreeable to the date, but stated he would meet any place other than the Attorney's office. It was finally agreed that Lee would contact Commissioner White and let White arrange the time and place for a meeting. It appears, however, that the date of July 13 remained tentatively agreed upon. In the afternoon of the same day, July 11, Lee called White's office. In the absence of White, who was out of town, Lee advised White's secretary of his conversation with Smith, adding that although he objected to the scheduling of any meeting in Mueller's office, he would as a last resort be agreeable to waiving this objection. Lee was in contact with White's office on several occasions between and including July 12 and July 16 or 18. He spoke personally to White on two occasions and each time White advised that he was unable to contact Mr. Mueller.24 On the last occasion, according to the credited testimony of Lee, White advised Lee that he had left word with Mueller's office for Mueller to call him but that his calls were never returned. A rather puzzling aspect of the situation occurred on July 26, at which time Lee received a call in his Dallas office from Commissioner Ted Morrow 25 asking him why be was not present at Mueller's office in Fort Worth for a meeting with Mueller and the company committee. Lee told Morrow that he had no knowledge of any such meeting being scheduled. Harold E. Mueller, Karl Mueller's brother and legal associate, testified concerning the July 26 arrangements. It was the testimony of Harold Mueller that he called White on July 22 and advised him that his brother, who had been out of town, would be back in Fort Worth on July 26, and that he would be agreeable to holding a meeting in his (Mueller's) office on that date I do not deem it necessary to detail Harold Mueller's testimony further except to say that due to a series of misunderstandings Karl Mueller was present in his office with the company committee on July 26 to meet with the Union and Commissioner White. As indicated, Lee did not appear. Neither did Commissioner White 26 23 As closely parallel to this case, see Exchange Parts Company, 139 NLRB 710 24 On July 12, White advised Lee that he attempted to arrange a meeting with Smith but that Smith would not meet without his attorney =6 Mr Morrow was attached to the Dallas, Texas, office of the Federal Mediation and Conciliation Service as was Mr. White 26 According to the testimony of Harold Mueller, he later learned from White that White did not appear because the Union would not agree to meet in Mueller's office and White therefore assumed that the April 26 meeting would not take place Mueller also testified that White later advised him that he (White) had overlooked calling him to advise him to this effect. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whatever misunderstanding may have taken place, I am convinced that Lee was never led to understand that a meeting was scheduled for July 26 27 In any event, and for the reasons noted hereinafter, I do not deem the circumstances of the ap- parent July 26 misunderstanding as a determinative factor as to the issue under discussion. On July 27, the Respondent announced to its employees that it was granting them a general 15-cent hourly wage increase to be effective on July 28. The notice to employees concerning the increase stated as follows: To All Production and Maintenance Employees: The company wants to increase your hourly rates of pay 150. On July 10, 1962, I wrote a letter to the union about this. A copy of my letter and the proposed new wage schedule is enclosed for your information. On July 11, 1962, Mr. Lee, the union representative, called and said he wanted a meeting. I agreed to meet. I also tried to get Mr. Lee to say that the union would not object to this increase but he would not do so. Mr. Lee wanted the Conciliator to meet with us and I agreed. A meeting was scheduled for July 26, 1962 at 2: 00 p.m. I was present for the meeting, along with other company representatives, but the union did not show up or call. The union still has not answered my letter of July 10, 1962. Under these conditions, we do not feel that you should any longer be denied the increases we want to give you. Therefore, the increases outlined in our letter of July 10th will be made effective July 27, 1962. In defense of the allegations pertinent to the July 28 wage increase Respondent states in its brief, "Respondent did all it could do reasonably in respect to the wage increase in July 1962, in notifying and giving the Union an opportunity to bargain." This argument, however, is not in keeping with the facts as disclosed by the entire record in this case To begin with, the very language utilized in Respondent's July 10 letter to the Union belies any bona fide willingness on Respondent's part to discuss the proposed wage increase with the Union. Thus, Respondent merely stated that it "assumed" that the Union would not "object" to the increase, but that if so the Union should promptly notify the Company. Indeed, it is evident that Respondent was extremely reluctant even to admit that it owed any obligation to bargain with the Union. This is disclosed by the statement in this letter that, "this communication is in recognition and satisfaction of such rights as you may have as the bargaining representative of the employees affected." [Emphasis supplied.] As is apparent on its face, Respondent's July 10 letter is completely devoid of any offer to meet and discuss its proposed increase with the bargaining representative. This in itself is a strong indication of Respondent's lack of good faith in the matter. That Respondent never intended to ful- fill its bargaining obligations was finally evidenced by its failure to ever give the Union any real opportunity to discuss the wage increase before placing it into effect on July 28. Assuming that Respondent was ready to meet on July 26, I find that Re- spondent was not thereby relieved of its obligation to discuss the proposed increase with the Union prior to its taking unilateral action on July 28. There is absolutely no evidence to indicate the necessity of announcing the increase on July 27 and putting it into effect on the following day. From the evidence in this case, there is no question in my mind but that Respondent very easily could have arranged to meet with the Union prior to placing the wage increase in effect if it had any good-faith intention to fulfill its bargaining obligations in this respect. The law is well settled that an employer may not unilaterally put into effect a wage increase without first consulting with the Union. Only in the event of an impasse may such an increase be granted, and then it cannot be any greater than that offered to the employees through the Union. N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. Having heretofore found that an impasse did not exist in the instant case, I would therefore hold that Respondent's unilateral wage increase of July 28 violated the Act even if it was no greater than that previously offered the Union. Respondent's action here is all the more serious when it is considered that the July 28 increase ex- ceeded that of its last offer to the Union. Indeed, the Supreme Court has held that such 27 Not only do I credit Lee's testimony in this respect, but the evidence shows that Lee took all steps possible to push for a meeting with Respondent throughout the entire period following the February 26 meeting Lee was available to meet at all times between the latter date and the instant hearing except for two periods, these being May 21 through 25 and April 24 through 27. R.C. CAN COMPANY 223 conduct "conclusively manifested bad faith in the negotiations . . . . An employer is not required to lead with his best offer; he is free to bargain. But even after an impasse is reached he had no license to grant wage increases greater than he has offered the Union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the Union." N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 745. In concluding this aspect of the case, I find that Respondent's unilateral wage increase on July 28, under the circumstances herein found, constitutes a per se violation of Section 8(a)(5) of the Act. 4. Respondent's refusal to notify or discuss the April 26 layoff with the Union The occasion and circumstances of the April 26 layoff have been set forth previously herein under the heading of the same name. Additionally, the following facts are pertinent to the allegation that Respondent violated Section 8(a) (5) of the Act by unilaterally laying off employees on April 26. Plant Manager Smith testified that the decision to lay off certain employees was not made until the actual day of the layoff, i.e., April 26. Recalling that the layoff took place about 3:15 p.m., it was Smith's testimony that earlier in the day he called Harold Mueller and advised him of the contemplated layoff. Smith testified that Harold Mueller thereupon "suggested that we contact Mr. Lee and let Mr. Lee know about the layoff." Smith testified that after this conversation Harold Mueller called him back and advised that he was unable to contact Lee. The layoff was then effected as heretofore related. Union Representative Lee first learned of the April 26 layoff when Scott reported it to him on April 28, a Saturday. Lee called Smith on the following Monday, April 30, and requested a meeting to discuss the April 26 layoff. Smith replied that he would check with his attorney to see when they could meet and that he would call back.28 On May I Lee participated in the filing of the first unfair labor practice charge herein. Lee testified that when he returned to his office on May 2 he found that Smith had left a message for him to call. Upon calling Smith, Smith advised that he had arranged to meet with Lee and the negotiating committee at 4 p.m. that day. When Lee thereupon replied that he would be over for the meeting Smith stated that since he had been unable to reach him the preceding day he had made other commitments and could not meet that day.29 Lee called Smith on May 4 and again requested to meet with respect to the layoff. Lee testified, as Smith conceded, that on this occasion Smith refused to meet and discuss the matter on the ground that the Union had filed charges relative to the layoff with the Board. Smith's position was that from there on "let the Board make their ruling on it." 30 It will be recalled that Respondent predicates the necessity of the April 26 layoff upon the loss of a contract for certain biscuit cans. Smith testified that the Company first learned of the loss of this account about the middle of April. He said that the layoff was not actually decided upon until April 26 because some employees had been on vacation and until that time he held hopes of preventing a layoff.31 In this con- nection, the record reveals that Smith and Harold and Karl Mueller participated in a Board hearing at which Lee was present on April 23. During this hearing Lee an- nounced that he was leaving for Pittsburgh on April 24 and would be gone for the rest of the week.32 Aside from the coincidence of the timing of the April 26 layoff, oc- curring as it did while Lee was absent from the area, Smith's own testimony reveals that on April 23 he was fully aware of the prospect of an impending layoff. With knowledge that Lee would be absent for the next few days, it seems to me that Smith at least might have mentioned the possibility of a layoff to Lee at the April 23 hearing. In any event, the evidence does not convince me that Respondent has shown the sudden need for a layoff on April 26 without any prior consultation with the union ^ Actually, Lee held two telephone conversations with Smith on April 30, but the sub- stance of both conversations are as set forth above. During these conversations Lee in- dicated he would like the opportunity to work out a plan whereby none of the layoffs, but particularly Seott's, would not be necessitated. 29 All the foregoing is Lee's unrefuted testimony. 30 On May 7 Lee by letter again requested Smith, inter ataa, to meet with respect to the layoff Smith made no reply to this letter which he acknowledged receiving n One reason for making the layoff on a Thursday (April 26) was because according to Smith, this was the last day of the weekly pay period. 33 Smith conceded hearing Lee say that he was leaving for Pittsburgh that day but said that he did not recall Lee's stating how long he would be in Pittsburgh 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative.33 But assuming arguendo that there was such a need, Respondent well well might have cured this deficiency if, at the very least, it had afforded Lee the opportunity to meet and discuss the situation, as Lee had requested, within a few days after the layoff. Smith's refusal to do so on the ground that the Union had filed unfair labor practice charges is legally without merit.34 Accordingly, I find that in laying off employees on April 26, 1962, without notice to or consultation with the Union, the bargaining representative, Respondent has violated Section 8(a) (5) and (1) of the Act. The Board, under analogous circumstances, has found such conduct to be unlawful under the Act. Exchange Parts Company, 139 NLRB 710. 5. The refusal to furnish information The complaint alleges that on and after March 8, 1962, Respondent refused to furnish to the Union data relating to wages, classifications of employees, and related matters. In a letter to Plant Manager Smith dated March 8, 1962, Union Representative Lee, inter alia, made the following request: "Please furnish me a list of the employees, their classifications and rates of pay who have been hired since the Union was certified as the bargaining agent." 35 Followup letters which included requests for the same informa- tion were sent to the Respondent on April 12 and May 7, 1962. It is undisputed that Respondent made no reply to any of these letters, all of which it acknowledged receiving, and that it never furnished the Union with the information requested. Apparently recognizing its obligation to furnishing the foregoing data, Respondent bases its defense upon the undisputed facts that on July 11, 1961, it had already provided the Union with the information in kind. However, the Board has also held that "the employer must make every reasonable effort to supply the Union with the requested relevant information, and that it must be as precise and current as is available. [Emphasis supplied.] John S. Swift Company, Inc., 133 NLRB 185, enfd. 302 F. 2d 342 (C.A. 7). Here approximately 8 months had elapsed be- tween the initial furnishing of this information and the Union's latest request. The record indicates that during this period Respondent hired new employees and that several others were given merit increases. The Union was entitled not only to have this information, but is was also entitled to know whether there was any change in the classifications or rates of pay of the other employees during this 8-month period. Certainly, it would have been a simple matter for the Respondent to bring the Union up to date with this information. I find that Respondent's failure to fulfill its statutory obligations in this respect not only constitutes an independent violation of Section 8(a)(5) and (1) of the Act, but it is further evidence that Respondent did not have a good-faith intention to honor the bargaining process throughout the period subsequent to February 26, 1962. 6. The transfer of the biscuit line to the Denison plant The complaint alleges that in September 1962, the Respondent moved its 21/4-inch cinnamon line from its Arlington plant to its Denison plant, at the same time trans- ferring some employees from one plant to the other, "without giving the Union an opportunity to bargain in connection therewith." The cinnamon line consists of specialized machinery which produces a type of can used by the larger baking companies for the packaging of rolls and biscusits. The Pillsbury Baking Co. is the principal customer of this product in the area of Re- spondent's Arlington plant. Plant Manager Smith testified that as early as 1960 Pillsbury had plans for the erection of a new plant in Denison, Texas, and that these ,plans included space to be leased to the Respondent for an in-plant operation 36 It also appears that Respondent did not keep secret from its employees the fact that the biscuit line ultimately would be transferred to the Denison plant as an in-plant operation. Thus, the testimony of employee James Harris reveals that Assistant Plant Superintendent Cargill approached him in February 1962 concerning his de- sire to transfer to Denison in view of the fact that this would be close to his home. While the testimony is somewhat confused in this respect, it appears that the shutting 33 The fact that the bargaining committee was called in at the last minute and told of the layoff does not in my opinion satisfy Respondent's obligation to give the Union an opportunity to discuss the matter. This was not an attempt to bargain with the Union, but merely an announcement to the committee of a fait accompli. 34 See Automotive Supply Co., Inc, 119 NLRB 1074, 1095, and cases cited therein 35 The letter also requested certain specific classification and pay information regarding employees Dunn and Ruth Lloyd. as Denison is located approximately 50 miles from Arlington R.C. CAN COMPANY 225 down of the cinnamon line was mentioned by Smith at the time of the April 26 layoff announcement. In any event, during the previously noted telephone conversation which Lee held with Smith on May 4, Lee mentioned to Smith that he heard one of the production lines was to be transferred from the Arlington plant to Denison and that he would like to discuss the possibility of some of the employees transferring to the new plant . According to Lee, Smith at this time stated that he did not know exactly when the line would be transferred , but that none of the Arlington employees would be transferred to Denison . In his letter to Smith dated May 7 (also referred to earlier ), Lee requested a meeting to discuss "the question of transferring produc- tion and maintenance employees along with any production lines that may be moved to Denison and the rates of pay and other working conditions of the employees affected." Respondent did not reply to the foregoing letter. However, on August 22, 1962, Smith wrote to Lee as follows: As you know, we are discontinuing the operation of our 21/4 inch line at the Arlington plant. The discontinuance of this operation will not result in the layoff or termina- tion of employment of any of the persons presently employed at Arlington. The actual transfer of the cinnamon line from Arlington to Denison was made on September 18, 1962.37 Four Arlington employees were transferred to the Denison plant at about this time without Respondent's giving the Union any prior notice or opportunity to discuss this action . Employees Reese and Harris were transferred as spiral winder operators, while employees Foster and Dunn were transferred to super- visory positions.38 It should be made clear that the transfer of the cinnamon line to the Denison plant does not involve the type of situation where the move was made for purposes pro- scribed by the Act. Clearly, the move here was based upon economic considerations and belonged in the area of management prerogative . The issue here rather is whether Respondent had a duty to bargain concerning the effect of moving upon the tenure or other conditions of employment of the Arlington employees whom the Charging Union represented. The Board has answered this question in the affirmative . Bickford Shoes, Inc., 109 NLRB 1346. From the facts cited above, it is apparent, and I find, that Respondent never afforded the Union an opportunity to discuss the effect of the move in question. That at least some employees in the unit were affected is clearly shown by the fact that four employees were transferred from the Arlington plant to the Denison operation . Accordingly, I find that Re- spondent violated Section 8(a) (5) of the Act by refusing to bargain with the Union concerning the effect of moving its cinnamon line from Arlington to Denison upon the tenure and terms and conditions of employment of the Arlington employees.39 Other Contentions In his brief the General Counsel for the first time urges that certain matters not alleged in the complaint be found as violations . These include an alleged unilateral layoff of employees on December 26, 1961, the alleged unilateral granting of merit increases to employees Foster and Dunn between November 1961 and January 1962, and the setting up of an oil can line in the place of the cinnamon line. I do not deem it necessary to pass upon these purported violations not only because they were not alleged in the complaint but also because at no time did the General Counsel apprise the Respondent that he intended to urge that any of the violations in kind be found In fact, with respect to the facts concerning the layoff which occurred on December 26 , General Counsel indicated at the hearing that he was offering such only to show Respondent's past practice in laying off employees on a strict seniority basis. I would regard this as a specific disclaimer of any future intention to urge such conduct as a violation . Moreover , after the hearing began the General Counsel on three different occasions made substantial amendments to the complaint . Certain of these amendments were of such substance that I was required to recess the hearing 31 The move was delayed , it being Smith's testimony that it originally had been scheduled for about June 1 38As previously noted , Dunn was employed as a supervisory trainee at the Arlington plant :n Insofar as the record indicates, the four employees to be transferred to Denison did so voluntarily, or at least willingly Certainly, no protest was made concerning their transfer Under these circumstances , and standing alone , I might hesitate to find a viola- tion However, the entire circumstances of this case indicate this to be but another manifestation of Respondent 's general refusal to bargain with the Union in good faith during the entire period subsequent to February 26, 1962 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for several weeks in order to give Respondent an opportunity to meet the added amendments. With knowledge of all the facts involved, it cannot be said that the General Counsel did not have ample opportunity to complete his amendments prior to the close of the hearing. Under all of these circumstances, and in the interest of due process, I do not deem it appropriate to pass upon the General Counsel's latest contentions.40 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relations to trade, traffic, and commerce among the several States, and, such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent violated Section 8(a) (1), (3), (4), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused in good faith to bargain collec- tively with the Union as the exclusive representative of the employees in the ap- propriate unit described herein. It will therefore be recommended that the Respond- ent bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. It also has been found that Respondent discriminatorily laid off employee Milford Scott. Accordingly, it will be recommended that Respondent make Scott whole for any loss of pay he may have suffered by reason of said discrimination by payment to him a sum equal to that which he would have earned as wages from the date of said discrimination to May 7, 1962, and in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the extent and nature of the unfair labor practices committed, the commission by the Respondent of similar and of other unfair labor practices may be anticipated here. It will therefore be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Milford Scott, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Secton 8(a) (3), (4), and (1) of the Act. 4 By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5. All production and maintenance employees, including shipping and receiving employees, leadmen, and truckdrivers of Respondent, employed at its Arlington, Texas, plant, exclusive of guards, watchmen, office clericals, professional, technical employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. United Steelworkers of America, AFL-CIO, was, on February 26, 1962, and at all times thereafter has been, the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining. 7. By refusing after February 26, 1962, to bargain with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. "While this is not my reason for not passing on the alleged addition al violations, it might be pointed out that the scope of the remedial order herein would not he affected by whatever disposition might be made of these contentions. R.C. CAN COMPANY 227 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent, R.C. Can Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith concerning rates of pay, wages, hours of employment, or other conditions of employment with the Union as the exclusive representative of the employees in the appropriate bargaining unit. (b) Discharging or otherwise discriminating against its employees because they have given testimony under the Act. (c) Discouraging membership in United Steelworkers of America, AFL-CIO, or in any other labor organization, by discriminating in regard to hire or tenure of em- ployment or any term or condition thereof. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above- named Union, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive representative of all production and maintenance employees, including shipping and receiving employees, leadmen, and truckdrivers of Respondent, employed at its Arlington, Texas, plant, exclusive of guards, watchmen, office clericals, professional, technical employees, and all supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed written agreement. (b) Make whole employee Milford Scott for any loss of pay he may have suffered by reason of the discrimination against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Arlington, Texas, copies of the attached notice marked "Appendix." 41 Copies of said 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 the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.42 ^ If this Recommended Order Is adopted by the Board, the words "A Decision and Order" sihall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 4 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, you are notified that: 727-083-64--vol. 144-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discriminate against our employees because they have given testimony under the Act. WE WILL NOT discourage membership of our employees in United Steel- workers of America, AFL-CIO, or in any other labor organization of our em- ployees, by discriminating in regard to hire or tenure of employment or any term or condition thereof. WE WILL NOT threaten our employees for engaging in union activities. WE WILL NOT refuse to bargain collectively in good faith with United Steel- workers of America, AFL-CIO, as the exclusive bargaining representative of all our production and maintenance employees , including shipping and receiving employees, leadmen, and truckdrivers, employed at our Arlington, Texas, plant, exclusive of guards, watchmen, office clericals, professional, technical employees, and all supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL NOT unilaterally grant wage increases to, or otherwise alter the terms and conditions of employment of, our employees in the above-described appropriate unit, without first giving notice to and discussing the matter with the above-named Union as the exclusive bargaining representative of our em- ployees in such unit. WE WILL furnish to the above-named Union, or its agents, upon request, the job classifications and wage rates of the employees in the appropriate unit. WE WILL, upon request, meet with and bargain collectively with the above Union with reasonable frequency and promptness concerning the negotiation of a contract. WE WILL make whole Milford Scott for any loss of earnings he may have suffered as a result of the discrimination against him. WE WILL NOT in any manner interfere with our employees' rights as guaran- teed in the Act. All our employees are free to become, remain, or refrain from becoming or re- maining, members of the above labor organization, or any labor organization. R.C. CAN COMPANY, Employer. 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, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or any compliance with its provisions. Raymond 0. Lewis,* W. A. Boyle and John Owens, as Agents for the International Union, United Mine Workers of America and as Members of the Joint Industry Contract Committee estab- lished by the National Bituminous Coal Wage Agreement of 1950, and Edward G. Fox, C. W. Davis and Hamilton K. Beebe, as Agents for the Coal Operators signatory to the National Bituminous Coal Wage Agreement of 1950 and as Members of the Joint Industry Contract Committee established by that Agreement and Arthur J. Galligan . Case No. 5-CE-6. August 07, 1963 DECISION AND ORDER Upon charges duly filed on November 29, 1962, by Arthur J. Galli- gan, an individual, the General Counsel of the National Labor Rela- *Designated a member of the Committee to replace Thomas Kennedy, deceased. 144 NLRB No. 29.