Blades Manufacturing Corp.

BLADES MANUFACTURING CORPORATION 561 organization, to join or assist Local 1031, International Brotherhood of Electri- cal Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose 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 employment, as authorized in Section 8(a)(3) of the National Labor Relations Act. All our employees are free to become , remain, or to refrain from becoming or remaining members of any labor organization except to the extent that this right may be affected by an agreement executed in conformity with Section 8(a)(3) of the Act. RADIO KEMETAL INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) RADIO INDUSTRIES, INC., 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, Midland Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. Blades Manufacturing Corporation and International Associa- tion of Machinists, AFL-CIO. Cases Nos. d6-CA-1170 and 26-CA-1236. September 16, 1963 DECISION AND ORDER On March 16, 1962, Trial Examiner Thomas F. Maher, upon grant- ing the General Counsel's Motion for Judgment on the Pleadings, issued his Intermediate Report in Case No. 26-CA-1170, 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, and a supporting brief. On June 18, 1962, the Board issued an order in that case directing that the record be reopened for the purpose of furnishing to the Re- spondent pretrial statements which had been denied to counsel for the Respondent in Case No. 26-RC-1553; and directing further that, if duly requested by the Respondent, a hearing was to be held before the Trial Examiner to permit the Respondent to cross-examine the witnesses from whom the foregoing statements were taken. After receiving the pretrial statements, the Respondent made timely request for a hearing in Case No. 26-CA-1170. 144 NLRB No. 54. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on July 17, 1962, the Board ordered that Cases Nos. 26-CA-1170 and 26-CA-12361 be considered.2 A hearing thereon was held before Trial Examiner Maher on August 14, 1962. On November 23, 1962, the Trial Examiner issued his Supplemental Intermediate Report in both cases,3 finding that the Respondent had not engaged in the unfair labor practices alleged therein and recom- mending that the complaints be dismissed in their entirety, as set forth in the attached Supplemental Intermediate Report. There- after, the General Counsel and the Respondent filed exceptions and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Supplemental Intermediate Report, the exceptions and briefs, and the entire record in the cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with this Decision and Order. Violations of Section 8(a) (5) and (1) in Cases Nos. 26-CA-1170 and 26-CA-1236 1. The Trial Examiner found that the Respondent did not unlaw- fully refuse to bargain with the Union. More specifically, he held that the first election in Case No. 26-RC-1553, which the Union lost, should not have been set aside, and thus the second election, which re- sulted in the Union's certification, was invalid because it was held within 12 months of the first. We disagree and find that the first election was properly set aside, and that the certification resulting from the second election is a valid one. As set out more fully in the Intermediate Report, the Board set aside the first election held on January 20, 1961, following a hearing on objections to the election filed by the Union, and the report of the Hearing Officer on said objections. So far as is pertinent here, the Hearing Officer credited the testimony of employees Brady, Gossett, Wortham, and Mobley and found, in accord with such testimony, that Superintendent Davis and Plant Manager Mauldin had threatened them with plant closing if the Union won the election, and that such threats were made during the critical period, i.e., the week before the first election.' He discredited the denials by Davis 'The charge in Case No 26-CA-1236 was filed on March 8 , 1962, and the complaint thereon issued on May 10, 1962, alleging violations by the Respondent of Section 8(a) (3) and further violations of Section 8(a) (5) and ( 1) of the Act. 2 The General Counsel moved the consolidation of the cases on July 9, 1962 3 The Board finds merit in the objection of the General Counsel to the inclusion of Case No 26-RC-1553 In the caption of the Supplemental Intermediate Report and deletes the same. s The Hearing Officer, applying the then existing rule in Board cases , viewed the period between January 13 and 20, 1961, as the critical period, as this was the time between BLADES MANUFACTURING CORPORATION 563 and Mauldin that any threats were made during the critical period.' The Hearing Officer also found that during the 3- to 4-week period immediately prior to the critical period, Mauldin and Davis, admitted- ly, had systematically engaged in extensive antiunion discussions with individual employees. He concluded that threats of plant removal if the Union won the election made during the critical period (by Davis to Brady, Mobley, and Wortham; and by Mauldin to Gossett and Wortham) amounted to substantial interference with the em- ployees' freedom of choice, and could not be viewed as isolated par- ticularly when considered in the admitted background of widespread and flagrant improper campaigning immediately prior to the 1-week critical period. Accordingly, he recommended setting aside the elec- tion, and the Board duly adopted his report and recommendations. The Regional Director conducted the second election on October 17, 1961. The Union concededly won this election. Accordingly, on October 25,1961, the Board certified the Union. Thereafter the Union requested the Respondent to meet and negotiate, but the Respondent refused. This refusal was the subject of the complaint case, Case No. 26-CA-1170. As noted above, the Board reopened Case No. 26-CA-1170, follow- ing the Trial Examiner's issuance of an Intermediate Report in re- sponse to Respondent's claim that it had been denied a fair oppor- tunity to cross-examine employee witnesses who testified before the Hearing Officer in Case No. 26-RC-1553.6 Acting pursuant to the Board's directions, the Trial Examiner afforded Respondent the op- portunity to cross-examine `Northam and Brady at the reopened hearing.' Unlike the Hearing Officer, however, the Trial Examiner the stipulation for consent-election agreement and the election Since the election the Board has changed the rule so that conduct which occurs between the date of the filing of the petition and the election may be considered in determining whether to set aside an election Goodyear Tire and Rubber Company, 138 NLRB 453 e Davis and Mauldin admitted making the threat ; their denials only went to the testi- mony that these threats were made during the week preceding the election e Respondent's claim of prejudice to its right of cross-examination went wholly to the testimony of Wortham , Brady, and Gossett. These were the only witnesses whose pretrial statements were requested by and denied to counsel for the Respondent , and the Board's order to the Trial Examiner limited the scope of the reopening solely to the matters affect- ing the credibility of these witnesses Although Respondent excepts to the Board 's failure to direct an entirely new hearing on the election objections , we find no merit to these exceptions. 7 Gossett did not appear at the instant hearing, and the Trial Examiner was satisfied that his failure to appear was attributable to his deliberate evasion of service of a subpena upon him Acting on a motion made by the Respondent, the Trial Examiner therefore struck all of the testimony given by Gossett before the Hearing Officer in Case No 26-RC-1553. The Trial Examiner, however , denied an earlier motion of the Respondent to dismiss the complaint in Case No . 26-CA-1170 in its entirety and to continue the hearing herein until Gossett could be produced for cross-examination Respondent now excepts to these findings . We find no merit in its exceptions For we are satisfied upon our review of the record that the Trial Examiner did not abuse his discretion in denying these motions , and that, in the circumstances set out above , these and other rulings he made did not prejudice the Respondent. We note, in passing, that the action of the Trial Examiner in striking Gossett's testimony could only have injured the General Counsel's case and that the General Counsel did not object 727-083-64-vol. 141-3 7 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not believe their testimony that Davis' and Mauldin's threats to shut down the plant if the Union won were made to them during the week before the election. He also vacated, as substantiated, the Hear- ing Officer's findings in Case No. 26-CR-1553 with respect to testimony by Wortham and Brady. However, he concluded that Mobley's testimony before the Hearing Officer remained unimpaired. Mobley had then testified that several days before the election Davis told him that "the reason they moved the factory out of St. Louis was to get away from the union and if they went union down here, they would move it away from it." We find that the foregoing coercive statements by Superintendent Davis to employee Mobley during the critical period, particularly when considered against the precritical period background of ex- tensive antiunion discussions admittedly held by Davis and Plant Manager Mauldin with individual employees, including threats simi- lar to those made to Mobley, prevented the holding of a free election. Accordingly, we further find that the results of the first election were properly set aside and that the second election was a valid one. As the second election was valid, Respondent was required to honor the certificate establishing the Union as the collective-bargaining representative of the employees in the appropriate unit. By its ad- mitted refusal to do so and to bargain with the Union on and after October 25, 1961, Respondent violated Section 8(a) (5) and (1) of the Act. We so find. The Respondent also admitted in Case No. 26-CA-1236 that it placed in effect a group life and hospitalization plan covering em- ployees in the certified unit on or about January 31, 1962, without consultation with the Union, and refused to bargain with the Union on February 15, 21, and 28, 1962, concerning grievances. As we have found that the Union was validly certified, we find that by these additional refusals to bargain, and by each of them, the Respondent also violated Section 8 (a) (5) and (1) of the Act. 8 (a) (3) and (1) Violations Alleged in Case No. 26-CA-1236 2. The Trial Examiner found that the Respondent lawfully dis- charged 31 employees for engaging in unprotected activity. We disagree. The facts leading to the discharges alleged to be violative of Sec- tion 8(a) (3) and (1) in Case No. 26-CA-1236 are as follows: As noted above, the Respondent unlawfully refused to meet and negotiate with the certified Union on and after October 25, 1961. As a result, the Union filed a refusal-to-bargain charge in Case No. 26-CA-1170 on November 2, 1961, which was later amended. On November 18, 1961, the Union sent a letter to the Respondent complaining about the Respondent's refusal to meet with the Union to adjust grievances BLADES MANUFACTURING CORPORATION 565 relating to written warnings issued to various employees within the certified bargaining unit. The letter threatened concerted action against the Respondent for its refusal to abide by its legal obliga- tion. The Respondent never replied to the November 18 letter. On February 10, 1962, a union meeting was held as the result of continuing disciplinary actions by the Respondent. At the meeting, employees expressed concern about their rights. Upon being told that unfair labor practice charges were awaiting Board action and that they should continue to present their grievances, the employees asked what measures should be taken if the Respondent continued to refuse to meet with the Union. The union representative replied that a walkout for a day might cause the Respondent to adjust griev- ances or to reduce its disciplinary actions. The employees then voted to walk out if the Respondent refused to consider a future grievance. At that meeting, employees Osborn Wilcoxson, Homer Hany, Elmer Craft, and Johnny Goodman were elected to the grievance committee. On February 15, 1962, employee Reynolds received a written rep- rimand assertedly for not putting out enough work. The union members among the employees immediately held a meeting, at which it was decided that if the Respondent would not meet with Wilcoxson, the union steward, to discuss grievances, they would walk out "for approximately one day at a time." Wilcoxson sought to talk with Mauldin. Mauldin refused to meet with him. The men then walked out for the remainder of the shift. They returned to work at the beginning of their shift on the following day. On February 21, 1962, Mauldin refused to discuss the layoff of Union Committeeman Hany with Wilcoxson. Wilcoxson warned Mauldin that the men would walk out if Respondent did not recognize the union committee in the handling of employee grievances. Mauldin replied that he would discuss a grievance with the individual involved, but not with representatives of the Union. The union mem- bers then walked off their jobs but reported back for work at the beginning of their shift on the following day. On February 21, after the walkout, the Respondent sent a letter to, each employee involved stating that the two work stoppages made it impossible for Respondent to know whether employees would do their assigned work so as to allow it to operate its business. The letter warned that if the employees did not report for work on February 26. they would be replaced, and that if this conduct was repeated the par- ties engaging in such temporary work stoppages would be discharged. On February 28, employee Beliew, a union official, was given a 3-day layoff for the stated reason that he was slowing down his work as a part of union activity. Upon Respondent's refusal to discuss, Beliew's grievance with Wilcoxson, the men again walked off the job_ 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter of March 1, the Respondent discharged all those employees who had walked out, including three of the four union committeemen, stating that they had been warned about engaging in unprotected activity and were being discharged for failure to obey such warning e The dischargees have not been reinstated so far as the record shows. The Trial Examiner found that the discharged employees had en- gaged in unprotected strike activity and that the discharges were there- fore unlawful, citing the Briggs & Stratton decision.' We do not agree with the Trial Examiner's characterization of the strike activity. In Briggs & Stratton, the union adopted the strategy, in order to exert pressure on the employer, of calling union meetings at irregular times during working hours, without notice to the employer of any specific demands these tactics were designed to enforce or of what concessions the employer could make to avoid them. The Supreme Court held that the State of Wisconsin could lawfully prohibit such conduct. By contrast, in this case the Union told the Respondent why the men were walking out and what the Respondent could do to meet the demands of the employees. Each walkout was precipitated by, and was in protest against, a separate unlawful act of the Respondent- the refusal to recognize the right of the Union to represent an em- ployee in the processing of a grievance. Each strike was therefore a separate, protected concerted activity.10 The fact that the employees struck each time the Respondent refused to deal with the Union in the handling of a new grievance does not make their conduct "intermit- tent" in the sense in which the Board and courts have used that term to describe a form of unprotected concerted activity. If the em- ployees struck repeatedly, it was because the Respondent repeatedly denied them their statutory rights. Accordingly, we find, contrary to the Trial Examiner, that the dis- charged employees did not engage in unprotected strike activity. Ac- cordingly, the Respondent could not validly discharge employees for engaging in such a strike. By discharging the employees for hav- ing done so, the Respondent violated Section 8 (a) (3) and (1) of the Act. 3. Moreover, even assuming that the employees who were discharged had engaged in a planned series of strikes involving partial or in- termittent strike activity which was unprotected, we hold in the cir- 8 The employees who were discharged are: Carroll Barr, Joseph Boyd , Johnny Bozark, Ronald Brown, Elmer Craft , Duane Dickinson , Bobby Dounham , A. G. Eubanks, Gary Franks, Ed Gardner, Johnny Goodman , James Gregory , Gerald H. Hall , Byron Hill , William D. Hill, Burl Haley, Joey Lamb, Billy Gene Reinhart, Jerry Reynolds, Glenn Turpin, Sammy Turpin, Archie Lee Vardell, Osborn wilcoxson, Randal Williams, Jerry Lee Wagster, James Watson, Danny Wyatt, Joe Clayton, Jerry Hubble, Terry Holt, and Ralph McDonald. 9 International Union, U.A.W A., A.F. of L., Local 232, et al (Briggs & Stratton Corp v. Wisconsin Employment Relations Board, at al , 336 U.S. 245. '5N L R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9; NLRB. v. Lundy Manufacturing Corp., 316 F. 2d 921 (C.A. 2). BLADES MANUFACTURING CORPORATION 567 cumstances of this case that it would nonetheless effectuate the pur- poses of the Act to reinstate them with backpay. In N.L.R.B. v. Thayer Company and H. N. Thayer Company, 213 F. 2d 748, 753 (C.A. 1), cert. denied 348 U.S. 883, the court stated that : ... where collective action is precipitated by an unfair labor practice, a finding that action is not protected under Sec. 7 does not, ipso facto, preclude an order reinstating employees who have been discharged because of their participation in the unprotected activity. The principle of the Thayer case has the specific approval of the Court of Appeals for the District of Columbia Circuit. See Local 833, International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America (Kohler Co.) v. N.L.R.B., 300 F. 2d 699, cert. denied 370 U.S. 911, where that court, remanding the case to the Board, said : We conclude that the teaching of the Thayer case is sound and must be followed in order to assure the Board's compliance with the statutory command that its remedial orders effectuate the policies of the Act. We believe that the Thayer principle should be applied here. The conduct engaged in by Respondent here was a flagrant dis- regard of the rights of its employees under the Act and of the Union as their exclusive bargaining representative. On the other hand, the strike activity of the employees was not in violation of any law. It was at all times peaceful, and there is no showing that such activity caused any greater damage to Respondent's business than a concededly protected strike would have. Accordingly, specifically noting, in connection with the Thayer principle, that the strikes were provoked by the Respondent's unfair labor practices, we hold that the discharge of the strikers was not for cause within the meaning of the Act and that the reinstatement of these strikers, with backpay, will effectuate the Act's purposes. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. In order to remedy these unfair labor practices, we shall order the Respondent to bargain with the Union in the appropriate unit desig- nated herein. We shall also, in accordance with our usual practice, order revocation by the Respondent of the group life and hospitaliza- tion plan unlawfully instituted by it, as well as the restoration of the 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment existing prior thereto. However, inas- much as we are not in a position to predict with certainty whether the employees desire such revocation, we shall condition our revocation and restoration order upon the wishes of the affected employees as expressed through their collective-bargaining representative. Having found that the Respondent unlawfully discharged 11 Carroll Barr, Joseph Boyd, Johnny Bozark, Ronald Brown, Elmer Craft, Duane Dickinson, Bobby Dounhan, A. G. Eubanks, Gary Franks, Ed Gardner, Johnny Goodman, James Gregory, Gerald, H. Hall, Byron Hill, William D. Hill, Burl Haley, Joey Lamb, Billy Gene Reinhart, Jerry Reynolds, Glenn Turpin, Sammy Turpin, Archie Lee Vardell, 'Osborn Wilcoxson, Randal Williams, Jerry Lee Wagster, James Wat- son, Danny Wyatt, Joe Clayton, Jerry Hubble, Terry Holt, and Ralph McDonald, and thereby violated Section 8(a) (3) and (1) of the Act, we shall -order that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and, make them whole for any loss of earnings they may have suffered as a result of the discrimination 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 discrimination to the date of reinstatement, " less, earnings during said period, 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. The broad pattern of coercive and unlawful conduct found evinces a general hostility on the Respondent's part to the principles of collec- tive bargaining and to the right of employees to engage in legitimate, concerted activities for purposes of organization or other mutual aid or protection. Accordingly, 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 guaran- teed employees by Section 7 of the Act. We shall also order that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment 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. n Our Order directing reinstatement and backpay is the same even if bottomed on our alternative holding under the Thayer principle, supra. 12 A.P W. Products Co., Inc., 137 NLRB 25. BLADES MANUFACTURING CORPORATION 569 CONCLUSIONS OF LAW 1. By discharging Carroll Barr, Joseph Boyd, Johnny Bozark, Ronald Brown, Elmer Craft, Duane Dickinson, Bobby Dounhan, A. G. Eubanks, Gary Franks, Ed Gardner, Johnny Goodman, James Gregory, Gerald H. Hall, Byron Hill, William D. Hill, Burl Haley, Joey Lamb, Billy Gene Reinhart, Jerry Reynolds, Glenn Turpin, Sammy Turpin, Archie Lee Vardell, Osborn Wilcoxson, Randal Williams, Jerry Lee Wagster, James Watson, Danny Wyatt, Joe Clayton, Jerry Hubble, Terry Holt, and Ralph McDonald on March 1, 1962, the Respondent, Blades Manufacturing Corporation, has dis- criminated in regard to the hire and tenure of employment of these employees, thereby discouraging membership in International Asso- ciation of Machinists, AFL-CIO, the labor organization herein, in violation of Section 8 (a) (3) and (1) of the Act. 2. All production and maintenance employees employed at Re- spondent's Rector, Arkansas, plant, excluding office clerical employ- ees, professional employees, guards, watchmen, 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. 3. The above labor organization was, on October 25, 1961, and at all times since then has been, the exclusive representative of all the employees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after October 25, 1961, to bargain with the above labor organization at the specific instance and request of said organization, by placing in effect an insurance plan on January 31, 1962, without consultation with the above labor organization, and by refusing to bargain with the above labor organization on Febru- ary 15, 21, and 28, 1962, concerning grievances, the Respondent, Blades Manufacturing Corporation, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER On the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Blades Manufac- turing Corporation, Rector, Arkansas, its officers, agents, successors. and assigns, shall : 1. Cease and desist from : 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to recognize and/or bargain collectively with the International Association of Machinists, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described above. (b) Taking unilateral action with respect to terms and conditions of employment without prior consultation and bargaining with Inter- national Association of Machinists, AFL-CIO, as the above exclusive representative. (c) Refusing to permit the designated representative of the above exclusive representative to assist employees in presentation and reso- lution of grievances. (d) Discouraging membership in the International Association of Machinists, AFL-CIO, or in any other labor organization of its em- ployees, by discharging its employees, or in any other manner dis- criminating in regard to their hire or tenure of employment, or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in connection with their exercise of the right to self-organi- zation, to form labor organizations, to join or assist International Association of Machinists, AFL-CIO, or any other organization, to bargain collectively with representatives of their own free choice, and to engage in other concerted activities for the purposes 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 the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively in good faith with Inter- national Association of Machinists, AFL-CIO, as the exclusive repre- sentative of all the employees in the appropriate unit, above, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Revoke the group life and hospitalization plan unlawfully placed in effect in the appropriate unit and revert to those terms and conditions of employment in effect prior thereto, if International As- sociation of Machinists, AFL-CIO, as the exclusive representative of these employees, so desires. (c) Offer to Carroll Barr, Joseph Boyd, Johnny Bozark, Ronald Brown, Elmer Craft, Duane Dickinson, Bobby Dounhan, A. G. Eubanks, Gary Franks, Ed Gardner, Johnny Goodman, James Gregory, Gerald H. Hall, Byron Hill, William D. Hill, Burl Haley, Joey Lamb, Billy Gene Reinhart, Jerry Reynolds, Glenn Turpin, Sammy Turpin, Archie Lee Vardell, Osborn Wilcoxson, Randal WVil- BLADES MANUFACTURING CORPORATION 571 liams, Jerry Lee Wagster, James Watson, Danny Wyatt, Joe Clayton, Jerry Hubble, Terry Holt, and Ralph McDonald immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings each may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy" in this Decision and Order. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security 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. (e) Post at its place of business in Rector, Arkansas, copies of the attached notice marked "Appendix." 11 Copies of this notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by a representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS LEEDOM and JENKINS took no part in the consideration of the above Decision and Order. "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 "A Decision and Order " the words "A Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL, upon request, bargain with International Association of Machinists, AFL-CIO, as the exclusive representative of all our employees in the bargaining unit defined below 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 understanding in a signed agreement. The bar- gaining unit is : 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees employed at Respondent's Rector, Arkansas , plant, excluding office clerical employees, professional employees, guards , watchmen, and supervisors as defined in the Act, constitute a unit appropri- ate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. WE WILL NOT institute unilateral changes in terms and condi- tions of employment of our employees in the appropriate unit above without consulting and negotiating with International As- sociation of Machinists, AFL-CIO. WE WILL NOT decline to entertain grievances presented by em- ployees with the assistance of any designated representative of International Association of Machinists, AFL-CIO. WE WILL, if requested by International Association of Machin- ists, AFL-CIO, revoke the group life and hospitalization plan for employees in the appropriate unit and revert to the terms and conditions of employment in effect prior thereto. WE WILL NOT discourage membership in the International As- sociation of Machinists , AFL-CIO, or in any other labor organ- ization of its employees , by discharging its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations , to join or assist International Association of Machinists, AFL-CIO, or any other labor organ- ization, to bargain collectively through representatives of their own free choice and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activity. WVE WILL offer to Carroll Barr, Joseph Boyd, Johnny Bozark, Ronald Brown , Elmer Craft, Duane Dickinson , Bobby Dounhan, A. G. Eubanks, Gary Franks, Ed Gardner, Johnny Goodman, James Gregory, Gerald H. Hall, Byron Hill, William D. Hill, Burl Haley, Joey Lamb, Billy Gene Reinhart, Jerry Reynolds, Glenn Turpin, Sammy Turpin, Archie Lee Vardell, Osborn Wil- coxson, Randal Williams, Jerry Lee Wagster, James Watson, Danny Wyatt, Joe Clayton, Jerry Hubble, Terry Holt, and Ralph McDonald immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings each may have suffered by reason of the discrimination against them. BLADES MANUFACTURING CORPORATION 573 All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization. BLADES MANUFACTURING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employees if presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice 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, Seventh Floor Falls Building, 22 North Front Street, Memphis, Ten- nessee, Telephone No. Jackson 7-5451, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and amendments thereto filed respectively on November 2 and 7 and December 13, 1961, by International Association of Machinists , AFL-CIO, herein referred to as the Union, the General Counsel of the National Labor Relations Board, herein referred to as the Board, by the Regional Director of the Board's Twenty-sixth Region, issued a complaint on December 20, 1961 , against Blades Manufacturing Corporation, the Respondent herein,' alleging a violation of Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. In its answer the Respondent, while admitting certain allegations of the complaint , denied the commission of any unfair labor prac- tice. Thereafter General Counsel filed a Motion for Judgment on the Pleadings wherein he moved, upon consideration of the Respondent's answer, that the allega- tions of the complaint be deemed admitted and found to be true, that findings of fact and conclusions of law be made based upon these allegations , as admitted, that an appropriate order be recommended thereon, and that an appropriate report be issued setting forth the findings and conclusions and Recommended Order. This motion having been duly referred to Trial Examiner Thomas F. Maher on January 30, 1962, I thereupon reviewed all of the pleadings in the case , including the Motion for Judgment on the Pleadings , General Counsel's memorandum in sup- port of it, Respondent's opposition, and the Board's several decisions in Case No. 26-RC-1553, a representation case involving this Respondent and forming the basis for the issue of refusal to bargain raised in the instant proceeding. Upon review I granted General Counsel's Motion for Judgment on the Pleadings by order dated February 5, 1962, a copy of which is attached and marked "Appendix A." At the same time I canceled the notice of hearing previously issued in the case, provided a period of 5 days within which parties might request oral argument before me respecting the issues presented by the pleadings , and set February 26, 1962, as the final day for the filing of briefs. Oral argument was never requested . A brief was filed by Respondent. i By order of October 4, 1961 , in W H.B., Inc, Case No. 26-RC-1553 , involving the Respondent herein, the Board eliminated the name of the employer in that case, sub- stituted the name "Blades Manufacturing Corporation " 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon consideration of the entire record, including the record in Case No. 26-RC- 1553,2 and the briefs and memorandums of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 'Blades Manufacturing Corporation is an Arkansas corporation, operating a pre- cision aircraft parts manufacturing plant at Rector, Arkansas, where it annually purchases and receives materials valued in excess of $50,000, shipped to it directly from points outside the State of Arkansas. During the same annual period it ships finished products valued in excess of $50,000 directly to points outside of the State of Arkansas. The Board found in Case No. 26-RC-1553 that this Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists , AFL-CIO, is stipulated to be a labor organization within the meaning of the Act and I so find. III. THE UNFAIR LABOR PRACTICE A. Introduction Following the Regional Director's certification of the Union on October 25, 1961, as the exclusive bargaining representative of an appropriate bargaining unit among Respondent's employees, the Union requested of Respondent that it bargain collec- tively with it and that it furnish certain information concerning job classifications, rates of pay, and vacation policy. Respondent refused and has continued in its refusal to provide the information requested or to meet with the representatives of the Union for the purposes of collective bargaining. In support of its refusal to bargain or to provide information necessary to prepara- tion for bargaining Respondent denies that the Union is or ever has been the exclusive bargaining representative of the employees, because the election conducted on January 20, 1961, was a valid one, and the Union failed to obtain a majority vote. Therefore, it claims, by reason of that valid election that the second election held on October 17, 1961, upon which the Union's certification was based, was null and void inasmuch as Section 9(c)(3) of the Act precludes the holding of more than one valid election within a given 12-month period. B. Procedural sequence 1. Case No. 26-RC-1553 December 20, 1960.-Representation petition filed. January 13, 1961.-Stipulation for Certification upon Consent Election signed. January 20, 1961.-Election held among 92 eligible voters, 83 voting. The Union lost by a vote of 44 to 38, with I vote challenged. January 26, 1961.-Union filed with the Regional Director its objections to con- duct affecting the results of the election. March 3, 1961.-Regional Director issued Report on Objections in which he overruled these stated objections, but upon a finding of other conduct which he deemed to constitute interference with the employees' free choice in the election, he recommended that the election be set aside and a new election held. March 14, 1961.-Employer filed exceptions to Regional Director's Report on Objections, together with a supporting brief, wherein the Employer denied the state- ments attributed to its supervisors, objected to the basis of credibility resolution, and contended that the Regional Director's findings were not based upon objections alleged by the Union in its objections to the election. April 6, 1961.-Board issued order directing a hearing. May 12, 1961.-Hearing before Hearing Officer Roy E Breckenridge. June 9, 1961.-Hearing Officer issued his Report on Objections to the Election. June 21, 1961.-Employer filed exceptions to Hearing Officer's report. 2It is established by statute and rule of decision that the record in a representation case is the appropriate subject of official notice in an unfair labor practice proceeding wherein the alleged refusal to bargain is related to the Board 's determination in the earlier representation proceeding. National Labor Relations Act, as amended , Section 9(d) Pittsburgh Plate Glass Company v. N.L.R .B., 313 U.S. 146, 158 BLADES MANUFACTURING CORPORATION 575 September 25, 1961.-Board issued Decision, Order, and Direction of Second Election. October 17, 1961.-Second election held. The Union won by a vote of 55 to 33. October 25, 1961.-Union certified as collective-bargaining representative of the Employer's employees. 2. Case No. 26-CA-1170 November 2 and 7 and December 13, 1961.-Charges and amendments filed alleging Respondent's refusal to bargain and to provide information. December 20,1961.-Complaint issued. December 29, 1961.-Respondent filed answer admitting the alleged refusal to bargain and denying the Union's representative status by virtue of the alleged in- validity of the election held on October 17, 1961. January 26, 1962.-General Counsel's Motion for Judgment on the Pleadings. February 5, 1962.-Order of Trial Examiner granting motion. C. The appropriate unit Respondent's answer admits that the unit appropriate for the purposes of collec- tive bargaining comprises all production and maintenance employees employed at Respondent's Rector, Arkansas, plant, excluding office clerical employees, guards, watchmen, and supervisors as defined by the Act. D. Respondent's contentions It is Respondent's position that the alleged invalidity of the second election nul- lifies any certification the Union may have received as a result thereof, and ex- cuses Respondent of any obligation to bargain. The sole issue, therefore, is the legal effect of the Board's and the Regional Director's actions during the procedural period ending on September 25, 1961, when the Board issued its decision setting aside the election of January 20, 1961; an election in which the Union failed to receive a majority vote among the employees voting. Thus Respondent, by its refusal to bargain and provide information, and by its several exceptions and its brief to me, has brought into question the Regional Director's Report on Objec- tions, the conduct of the hearing before the Hearing Officer, the Hearing Officer's Report on Objections, and finally, the Board's Decision and Order and Direction of Second Election. For purposes of summary I shall enumerate Respondent's principal arguments: 1. In his initial investigation of the objections the Regional Director: (a) Arbitrarily resolved credibility against the Employer (b) Erroneously based his action setting aside the election upon matter not initially alleged as objectionable, after having rejected the stated objections. (c) Based his setting aside of the election upon incidents which could not have affected the votes a number necessary to change the final result of the election. 2. In the hearing before the Hearing Officer, contrary to the provisions of Section 9 (c) (1), he: (a) Permitted counsel for the General Counsel to lead the witnesses whom he interrogated. (b) Denied Respondent the opportunity to cross-examine witnesses on the basis of prehearing affidavits relating to matter to which they had testified. (c) In the preparation of his report specifically resolved conflicts in credi- bility. 3. The Board, in accepting both the Regional Director 's and the Hearing Officer's reports and setting aside the election , denied Respondent due process of law in such respects as approving credibility determinations by the Hearing Officer not applying Section 9 (c) to the postelection phases of a representation proceeding, and failing to respect the "laboratory conditions " essential to the nonadversary character of a representation proceeding. Accordingly, Respond- ent contends, before the election of January 20 , 1961 , can properly be set aside for the reasons stated, it should be permitted, for the purpose of fully assessing their credibility, to further cross-examine the witnesses who testified before the Hearing Officer after being given the opportunity to inspect their prehearing statements. E. Conclusions The net effect of Respondent's refusal to bargain here by refusing to honor the Board's certification of the Union is to bring into question the Board's decision of September 25, 1961. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's theory that the adversary character of a representation proceeding extends to the postelection phases of the case was rejected by the Board in Lake field Manufacturing Co., 105 NLRB 952, wherein the Hearing Officer's right to make recommendations was contested as being contrary to Section 9(c)(1). The Board held that this section "did not intend to deprive the Board of the assistance of a hearing officer in proceedings subsequent to an election." A reading of Section 8(c) (1) would also foreclose Respondent's reliance upon the section for support of the restrictions he would place upon a postelection hearing, such as this one. Thus, the provision anticipates a hearing (without recommenda- tions) that will or will not establish the existence of a question of representation and the need for an election. The instant hearing postdates by at least 4 months the agreement between the parties that such a question of representation does exist, and that an election would be in order. Because Respondent's interpretation would ex- tend the statutory restriction beyond its stated limits and beyond the determination of whether a question of representation exists, particularly when such question has already been resolved, I would not accept it. Moreover in this respect and with further respect to the Hearing Officer's resolution of credibility conflicts, it is to be noted that he did so by order of the Board dated April 6, 1961. Therein it was ordered that the Hearing Officer "prepare and caused to be served upon the parties a report containing resolutions of the credibility of witnesses, findings of fact and recommendations to the Board." With respect to Respondent's claim to a review of the witnesses' written state- ments made prior to the hearing it is to be noted that the Board's policy in this matter was established within the context of an unfair labor practice proceeding, not a representation proceeding,3 that it was taken following court review of another unfair labor practice proceeding 4 and overruled a contrary policy previously fol- lowed in unfair labor practice cases .5 Its application to representation proceedings is, therefore, without basis in precedent. In view of the foregoing and upon the basis of settled Board policy with respect to consideration by a Trial Examiner of a Board's decision in a representation case, which relates to the unfair labor practice proceeding before him, I have no alter- native but to respect the Board's previous holding in this matter and its certification of the Union.6 Accordingly, I conclude and find that Respondent, by its refusal to honor this certification by not acceding to the Union's bargaining and infor- mation requests, violated Section 8(a)(5) of the Act, and that it thereby interfered with, restrained, and coerced its employees in the exercise of their statutory rights in violation of Section 8(a) (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. Because of the limited scope of Respondent's refusal to bargain with the Union, I shall not recommend that the Respondent cease and desist from the commission of other unfair labor practices.? Furthermore, as it is implicit in my recommendation requiring Respondent to cease and desist from refusing to bargain or to make available information that it, in effect, bargain and make the information available upon request, I find it re- dundant and unnecessary to affirmatively order Respondent to bargain or to supply the requested information. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: s Ra-Rich Manufacturing Corporation, 121 NLRB 700. 4 N.L R B v. Adhesive Products Corp, 258 F 2d 403 (C A 2) 6 Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280. 6 Olsen Rug Company, 120 NLRB 366. 7 Cf. Sinclair Refining Company, 132 NLRB 1660. BLADES MANUFACTURING CORPORATION 577 CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2 (2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent 's Rector, Arkansas, plant, excluding office and clerical employees , guards, watchmen, and supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On and since October 25, 1961, the Union has been and now is the exclusive representative of the employees in the bargaining unit described above. 5. By failing and refusing , upon request of the Union, to meet with it for the purpose of negotiating a collective -bargaining agreement and by failing and refusing, upon the request of the Union, to make available to it certain detailed information found to be necessary for the preparation for bargaining, Respondent has refused to bargain with the Union as the exclusive representative of the employees in the unit and has thereby engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (5) of the Act. 6. By the aforesaid failure and refusal to meet with the Union and make available to it certain information requested , Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] APPENDIX A ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS Upon the filing of Respondent's answer to the complaint herein, General Counsel has filed a Motion for a Judgment on the Pleadings, wherein he moves: 1. That the allegations of the complaint herein be deemed to be admitted and found to be true. 2. That the Trial Examiner make findings of fact and conclusions of law based on the allegations of the said complaint, as admitted. 3. That the Trial Examiner prepare an appropriate Recommended Order based on such findings of fact and conclusions of law. 4. That the Trial Examiner prepare and file with the Board a report pursuant to Section 102.45 of the Board's Rules and Regulations, Series 8, as amended, con- taining such findings of fact, conclusions of law, and Recommended Order. Responding in opposition thereto Respondent, by counsel, contends that factual and legal issues have been raised with respect to a prior representation proceeding involving this Respondent, in Case No. 26-RC-1553, which cannot be decided upon the face of the pleadings herein, and which rest upon objections, contentions, and findings made on the record in the earlier proceeding, thereby requiring a further hearing on the matters involved. Now, this motion having been referred to me on January 30, 1962, I have reviewed the complaint issued on December 20, 1961, Respondent's answer thereto filed De- cember 29, 1961, General Counsel's Motion for Judgment on the Pleadings and memorandum in support thereof, dated January 26, 1962, and Respondent's objec- tion thereto dated January 31, 1962, I find that no litigable issue not previously considered by the National Labor Relations Board in Case No. 26-RC-1553, has been raised by the pleadings herein. As it is established by statute and rule of decision' that the record in the aforementioned related representation proceeding is the subject of official notice by me in any determination I make and any Inter- mediate Report and Recommended Order I shall hereafter issue, the necessity of further hearing in the matter is thereby removed and there remains for considera- tion by me only such legal issues as have been raised by the pleadings herein and the record in Case No. 26-RC-1553 and the facts found therein. 1 National Labor Relations Act, as amended, Section 9(d) ; Pittsburgh Plate Glass Com- pany v. N L.R B., 313 US. 146, 158. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I HEREBY GRANT the Motion for Judgment on the Pleadings and proceed to prepare and issue an Intermediate Report and Recommended Order. IT IS THEREFORE ORDERED that the notice of hearing issued herein setting hearing of the matter for February 6, 1962, and subsequently postponed by me to Febru- ary 13, 1962 be, and hereby is, vacated. Briefs, or proposed findings and conclusions, or both, relating to the merits of the issues herein, may be filed, at Washington, D.C., pursuant to Section 102.42 of the Board's Rules and Regulations, Series 8, on or before February 26, 1962. In the event the parties, or any of them, desire to present oral argument in the matter any request therefor must be made of me in Washington, D.C., within 5 days of the date of this order. (S) Thomas F. Maher, THOMAS F. MAHER, Trial Examiner. Dated February 5, 1962. SUPPLEMENTAL INTERMEDIATE REPORT This supplemental proceeding upon which hearing was held before Trial Examiner Thomas F. Maher on August 14, 1962, at Paragould, Arkansas, is a consolidation by order of the National Labor Relations Board, herein called the Board, of two cases in which complaints have been issued against Respondent Blades Manufacturing Corporation; said consolidation being for purposes of holding a single hearing and the issuance of a single supplemental report. Because each complaint constitutes a separate and distinct action this Supplemental Report will consider each case sep- arately herein.' Cases Nos. 26-CA-1170 and 26-RC-1553 2 STATEMENT OF THE CASE On February 5, 1962, I issued an Order on Motion for Judgment on the Pleadings wherein I granted the Board's General Counsel's motion, and canceled the hearing set in the matter. After requesting and receiving briefs from the parties, I issued an Intermediate Report on March 6, 1962, wherein I concluded that Respondent, as alleged in the complaint filed by the Regional Director for the Twenty-sixth Region of the Board in behalf of the General Counsel, had failed and refused to bargain with the certified representative of its employees in violation of Section 8(a) (5) of the National Labor Relations Act, as amended (29 U.S C. Sec. 151, et seq.), herein called the Act. In support of my conclusions and over Respondent's express objections I held the proceedings in Case No 26-RC-1553, a representa- tion proceeding involving Respondent's employees, to be regular and valid in every respect. Specifically I rejected Respondent's suggestion that it had been deprived of an adequate hearing by virtue of the refusal of the representative of the Regional Director, at the hearing on objections to the election in that case, to furnish Respond- ent for purposes of cross-examination the pretrial statements of witnesses called by International Association of Machinists, AFL-CIO, the petitioning union in that case, hereinafter referred to as the Union. In thus reaffirming the ruling of the Hearing Officer in that case, as approved by the Board in its Decision and Direc- tion of Second Election,3 I noted that the rule established by the Board in Ra-Rich Manufacturing Co 4 requiring the production of a witness' pretrial statement had been applied exclusively to unfair labor practice cases and that its application to representation cases appeared to be without precedent. Upon review by the Board the proceeding was remanded to the Regional Direc- tor for the purpose of (1) furnishing to, Respondent's counsel the pretrial state- ments previously denied him under the Hearing Officer's, and my interpretation of the rule of the Ra-Rich case, and (2) providing a hearing for further cross- I Respondent's and General Counsel's respective motions to correct the transcript of the hearing in this matter are hereby granted and the original official report of proceedings has been physically corrected by me. In so doing I have also been guided by my own recollection of what was actually said In these poorly recorded statements. 2 By order of October 4, 1961, in W.H D., Inc., Case No. 26-RC-1553, involving the Respondent herein, the Board eliminated the name of the employer in that case, substitut- ing the name "Blades Manufacturing Corporation." 3 Dated September 25, 1961 (not published in NLRB volumes) * 121 NLRB 700 BLADES MANUFACTURING CORPORATION 579 examination of these witnesses if the Respondent so chose .5 Respondent elected to conduct further cross-examination which I permitted as a separate and distinct part of the consolidated hearing held before me on August 14, 1962 at Paragould, Arkansas. At that time I indicated it would constitute an extension of the examina- tion of petitioner's witness in the representation proceeding, Case No. 26-RC-1553. Upon the completion of cross-examination of each witness thus recalled, I per- mitted further redirect examination by counsel for the General Counsel, but only on matters covered in the most recent cross-examination of each of the witnesses. Specifically, therefore, having now heard cross-examination of witnesses Brady and Wortham, and witness Gossett being unavailable for reasons to be discussed in detail hereafter, I am now required by order of the Board (supra, footnote 5), to reexamine the credibility issues in the representation case, Case No. 26-RC-1553. In this respect I specifically note that instructions in the Board's order of June 18, 1962, state that "the Trial Examiner shall consider and resolve credibility issues raised by counsel for Respondent in its exceptions to the Hearing Officer's Report in Case No 26-RC-1553." Upon my review of the entire record in Case No. 26-RC-1553, including the testimony of all witnesses appearing in that proceeding, my observation of all the witnesses appearing before me in the instant consolidated proceeding, upon due con- sideration of the circumstances surrounding witness Gossett's failure to appear be- fore me, and upon the entire record in this consolidated case, I make the following: FINDINGS OF FACT A. Introduction Following the loss of the election in Case No. 26-RC-1553 on January 20, 1961, the Union filed with the Regional Director objections to conduct affecting the results 5 The order issued on June 18, 1962, by the Board's Associate Executive Secretary is as follows: ORDER REOPENING RECORD AND REMANDING PROCEEDING On February 5, 1962, Trial Examiner Thomas F Maher issued an order in which he granted a Motion by the General Counsel for a Judgment on the Pleadings, vacated the notice of hearing, and invited the parties to submit briefs, or proposed findings and conclusions, or both, relating to the merits of the issues in the case, with the right to request oral argument. No request for oral argument was made However, Respondent filed a brief with the Trial Examiner. On March 16, 1962, the Trial Examiner Issued his Intermediate Report, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that It cease and desist therefrom and take certain affirmative action, as set forth In the copy of the Intermediate Report attached hereto. There- after the Respondent filed exceptions to the Intermediate Report, and a brief in support thereof. The Board has duly considered the General Counsel's motion, the Respondent's opposition thereto, the complaint and answer herein, and the entire record in the case, and hereby issues the following order- IT IS HEREBY ORDERED that the record be, and it hereby is, reopened; and that this proceeding is remanded to the Regional Director for the purpose of obtaining and furnishing to the Respondent pretrial statements which were denied to counsel for Respondent in Case No. 26-RC-1553. IT IS FURTHER ORDERED that Respondent shall have ten (10) days from the furnish- ing of said statements to it within which to request a hearing before the Trial Examiner to permit it to cross-examine the witnesses from whom the foregoing state- ments were taken. In the event that such hearing is requested of the Regional Director within such time, the Regional Director shall arrange such further Diearing and shall Issue early notice thereof. At such hearing, the Trial Examiner shall con- sider and resolve credibility Issues raised by counsel for Respondent in his exceptions to the Hearing Officer's Report in Case No. 26-RC-1553, and at the conclusion of such hearing shall prepare and serve upon the parties a Supplemental Intermediate Report containing findings of fact, conclusions of law, and recommendations relating to the unfair labor practices alleged in this proceeding. Following the service of such Supplemental Intermediate Report upon the parties, the provisions of Section 102 46 of the Board's Rules and Regulations, Series 8, shall be applicable IT IS FURTHER ORDERED that in the event Respondent does not request a hearing of the Regional Director within the allotted time, the Regional Director shall so advise the Board, and transfer the proceedings to the Board for appropriate action. 727-083-64-vol. 144-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the election. Upon investigation the Regional Director overruled the objections but found other conduct which he deemed to constitute interference with the em- ployees' free choice and recommended that the election be set aside and a new one held. Upon review of the Regional Director's report the Board directed a hear- ing be held on the objectionable conduct found by the Regional Director. A hearing was thereafter held before a Hearing Officer who heard testimony of wit- nesses called by the Employer and by the Union, including employees Gerald A. Brady, Derrell Gossett, and Wilburn A. Wortham. During the course of the hearing and upon the completion of the direct examination of each of the above-mentioned witnesses, counsel for Respondent requested of the Board's counsel the prehearing statement given by each witness, so that counsel might have same for cross-examina- tion purposes. Production of such statements was refused as to each witness, the Hearing Officer stating as his opinion that the rule of the Board requiring the produc- tion of such statements,e did not apply to representation hearings held pursuant to Section 9(c) of the Act. The objections were substantiated by the facts thus found, the election was set aside and, by direction of the Board, a second election was held and won by the Union on October 17, 1961, approximately 9 months after the first election. The Union was certified by the Regional Director as the exclusive representative of Respondent's employees on October 25, 1961, and immediately thereafter re- quested Respondent to bargain collectively with it and to provide it with specified information which it claimed to be necessary to prepare for bargaining. Respondent refused and has continued in its refusal to provide the information requested or to meet with the representatives of the Union for the purposes of collective bargaining. In support of its refusal to bargain or to provide information necessary to prepara- tion for bargaining Respondent denies that the Union is and ever has been the exclusive bargaining representative of the employees, because the election conducted on January 20, 1961, was a valid one, and the Union failed to obtain a majority vote. Therefore, it claims by reason of that valid election that the second election held on October 17, 1961, upon which the Union's certification was based, was null and void inasmuch as Section 9(c)(3) of the Act precludes the holding of more than one valid election within a given 12-month period. Respondent's claim with respect to the invalidity of this second election stems from its contention that the hearing forming the basis of the Board's direction of the second election, and ultimately the second election itself, was improper in that Respondent in the hearing preceding the second election was improperly deprived of the opportunity to adequately cross- examine witnesses Brady, Gossett, and Wortham. This, it contends, impaired the resolution of credibility upon which the Board's ultimate findings were based when it directed the second election. This contention was presented to the Board in my Intermediate Report dated March 16, 1962, wherein I found that the hearing was regular in every respect and that the rule in Ra-Rich respecting the production of prehearing statements was not applicable to representation proceedings. The Board, however, as noted above, viewed Respondent's contention with favor and, in concluding that prehearing state- ments must be produced in representation cases, remanded the proceeding for that purpose and for pertinent cross-examination of the witnesses involved, if such were requested by Respondent's counsel.? B. The nature of the allegedly objectionable statements January 13, 1961, is the critical date in this case from the standpoint of determin- ing both the credibility of witnesses and the validity of the first election held on January 20, 1961. Thus, it is claimed that certain threats to close or to move the plant in the event of a union victory in the election were made by Respondents offi- cials and supervisors during the period between January 13, the date of the signing of the consent-election agreement and January 20, 1961, immediately preceding the election. Respondent contends, on the other hand, that statements found to have constituted threats were made prior to January 13 at a time when such state- ments would not, under existing Board policy, be deemed sufficiently objectionable 9 Section 102 118 of the Board's Rules and Regulations, Series 8, as amended, Ra-Rich Manufacturing Co, 121 NLRB 700. 7 See footnote 5, supra Although the Board did not so state in its order I must necessarily assume that Rule 102 118 of the Board' s Rules and Regulations , together with the rule set forth in Ra-Rich, is applicable to representation as well as to unfair labor practice proceedings. BLADES MANUFACTURING CORPORATION 581 to warrant the setting aside of the election.8 Accordingly, only statements of an improper nature made to employees by supervisory individuals subsequent to the execution of the stipulation for consent election on January 13, would be considered. It devolves upon me, therefore, to determine whether there is evidence to conclude that the conduct occurred in this "insulated period." This necessarily requires that I reassess the credibility of the three witnesses whose further cross-examination was authorized and who testified to the conduct during that period. And, because there were witnesses called in the representation hearing who denied the conduct attrib- uted to them, which testimony has already been discredited by the Hearing Officer in his report in the representation case, and as these latter witnesses have also been called as witnesses before me, I consider myself in a position to rule upon their testimony generally. What effect this may have upon earlier rulings concerning them and their entire testimony remains to be considered (infra). C. Analysis of testimony 1. Wilboum A. Wortham 9 In the earlier hearing employee Wortham, a witness provided by the Union and called by counsel for the Regional Director, testified, and the Hearing Officer so found, that in three separate conversations with Respondent's officials, two with Superintendent Melvin C. Davis, and one with Plant Manager Jim Mauldin, it was stated by them in substance that if the Union won the election the plant would be moved. Each of these conversations, it was found, occurred on or after January 13, 1961, the critical date. Further, cross-examination of Wortham before me was directed particularly to the dates upon which the alleged threats to move the plants were made and to the circumstances under which these threats were made known thereafter to an agent of the Board and reduced to writing. Wortham impressed me as an unreliable witness whose testimony I would reject. Upon my observation of him on the stand, and upon my study of his testimony before me and in the prior representation hearing, I found him to be evasive on occasion, and to have involved himself in contradictions which seriously weakens not only his testimony before me but also the earlier testimony upon which are based many of the crucial findings in the representation case. Illustrative of these are the continual inability to recall specific dates, excepting only dates of those events which occurred between January 13 and 20, which incidents he pinpointed in many cases to the precise place and hour; his contradiction in first placing the interview with the Board agent as being a week after the January 20 election, then stating his failure to recall the length of time, and finally agreeing that the date which appeared on the statement which he gave to the agent properly fixed the date as being a month after the election. Indeed as to two of the crucial conversations, one with Superintendent Davis and the other with Plant Manager Mauldin, the witness could not state with certainty whether they occurred on July 17 and 18, respectively, as previously found, or on January 10 10 and 11, prior to the critical period. And with respect to his conversation with the Board agent at the time his statement was given, the witness first testified that he knew before the arranged meeting that he was going there to talk with the agent, and later testified that he went to the meeting "to talk to the union representative." 11 It has long been held in decisions of the Board involving objections to elections that for an employer to intimate to employees that he would close his plant upon a union vic- tory in an election is the type of interference that warrants the Board's setting aside the results of that election . Falmouth Company, 114 NLRB 896. The Board , however, has enunciated the principle that to be grounds for setting aside an election , such improper conduct must occur during an "insulated period," commencing with the time that a stipu- lation for consent agreement is entered into and ending with the completion of the elec- tion itself to provide a basis for setting aside an election . Joanna Western Mills Co, 119 NLRB 1789, 1791. Given name is spelled W-i-1-b-u-r-n in the transcript of hearing in Case No 26-RC-1553. io Wortham testified as follows: Q Isn't it possible that this statement that you say was made on Tuesday, Janu- ary 17 , could have been Tuesday, January 10? A. Well, it could have been I wouldn't swear to it. From a reading of the transcript of the hearing in the representation case I note that witness first testified there that in no conversation with Superintendent Davis prior to January 13 was the Union ever discussed . Thereafter , he contradicted his earlier testi- mony stating that Davis did discuss the Union with him in a conversation prior to Janu- 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having thus rejected employee Wortham's testimony both before me, and, pursuant to Board remand to me, before the Hearing Officer, I conclude that the findings based upon such testimony must necessarily be vacated as unsubstantiated. 2. Gerald A. Brady In the representation hearing employee Brady, a witness provided by the Union and called by counsel for the Regional Director, testified, and the Hearing Officer so found, that on Friday evening, January 13, between 7:30 and 7:45 p.m., Superin- tendent Davis approached him and engaged him in a conversation the substance of which was that Respondent's president was ready and willing to spend con- siderable sums of money to keep the Union out of the plant, and that even then he was looking for a likely place to move the plant in the event of a union victory. Further cross-examination of Brady before me was directed particularly to the date upon which this statement was alleged to have been made and to the circum- stances under which information concerning it was made known to an agent of the Board, and reduced to writing. I do not credit Brady's testimony before me. Upon my observation of him I noted a tone of hostility in his responses to questions on cross-examination that clearly belied a forthright attitude. Thus, for example, he might be described as being adept at the art of "one-upmanship"-in this case, the strained effort of seeking to be "one-up" on cross-examining counsel with each answer. Further evidence of this was the basis upon which he preferred to establish his recollection that the critical event took place on January 13. Thus, while stating that the connection between that date and the following Monday on which he changed work shifts served to fix the date, Brady was more content, it appeared from observing him and listen- ing to him,, upon fixing January 13 as the date simply because that was it, that he knew this to be the date, insisted on it being the date, and rejected any suggestion of error. This I find to have been more a display of belligerence upon being ques- tioned by Respondent's counsel than an act of positive recollection 12 Furthermore, in respect to the supplying of information to the Board's agent, Brady involves him- self in contradictions. Thus, for example, when asked if he knew why the date January 13 was important, he answered, "No sir, I couldn't explain it to you, I couldn't tell you. I sure couldn't." Thereafter in his testimony, however, when asked if the Board agent had explained the significance of the January 13 date to him he stated, contrary to his earlier answer, "Yes, sir, we all understood that and that's the reason why I was down there, because I wouldn't have been there if I hadn't knowed that that wasn't prior to January 13." Furthermore, when Brady was being questioned before me concerning the significance of the date and was specifi- cally asked if the Board agent had explained its significance to him his several replies were classic examples of hedging-so much so that the answer was never forth- coming. A synthesis of these answers would suggest, however, a denial that the Board agent had told him in advance of his giving a statement that January 13, was a critical date. Significantly, Brady had testified in the earlier hearing that the Board agent had told him that "it was important that I remember the date." Another example of the contradictions in Brady's testimony was his account of how he happened to go to the Board agent with his story. Thus, when queried before me as to who had asked him to go see the Board agent, he replied, "It was my own idea, all together my own idea." At the previous hearing, however, Brady's description of his actions did not so clearly suggest independent, unsolicited action, as the following colloquy at page 43 of the hearing transcript will indicate: Q. Did Mr. Harris [the union representative] tell you to go see Mr. Burks [the Board agent]? A. He told us where he was, yes, sir. Q. Did he tell you to go over there and give him a statement? A. He didn't tell me to, no, I done it on my own free will. Q. And you just volunteered to go, voluntarily went over and gave him that statement that you told us about, is that right? A. Yes, sir. ary 8. Directed as I am to resolve all credibility as to this witness I would be disposed, unlike the Hearing Officer, to consider this contradiction as a further illustration of the unreliability of the witness. Particularly is this so in view of the witness' hedging account of this incident when he testified before me 12 Brady likewise conceded that in the course of being interviewed by Respondent's attorneys at the plant concerning the objections to the election he deliberately withheld information from them. BLADES MANUFACTURING CORPORATION 583 Q. Now do you know whether or not Mr. Harris told everybody in the plant where Mr. Burks was so they could go over there? A. No, I couldn't say, I don't know. Q. But he told you? A. Yes. Having thus rejected employee Brady's testimony, I necessarily reject January 13, 1961, as the date upon which Superintendent Davis, in conversation with Brady, threatened to move the plant. Under such circumstances, therefore, I would con- clude that any prior findings based upon Brady's testimony to the effect that Janu- ary 13 was the precise day of the threat must also be rejected. Accordingly, I conclude, as with respect to Wortham, that earlier findings not in conformity with my rejection of Brady's testimony must be vacated as unsubstantiated. 3. Derrell G. Gossett In the representation hearing employee Gossett, a witness provided by the Union and called by counsel for the Regional Director, testified, and the Hearing Officer so found, that 2 days prior to the January 20 election Plant Manager Mauldin told him that "If the Union came in that the `Old Man' would not put up with it and he would move the factory out." Gossett, who is no longer employed by Respondent but who continues to reside in the area, was one of the three witnesses subpenaed to appear for further cross- ,examination pursuant to the terms of the Board's order of remand (supra, foot- note 5). During the week of August 14, the week prior to the hearing herein, Union Representative W. C. Harris personally sought out Gossett and told him he was to be called for further cross-examination. At that time Gossett indicated his unwillingness to appear and testify and said he would do so only under subpena. A subpena was dispatched by registered mail to Gossett at the address given by him in the representation hearing, namely Pollard, Arkansas; and upon learning that he had moved to another residence within the area in the meantime, another subpena was sent to him at his present address at Route 1, Piggott, Arkansas. No return receipts were ever received from either mailing. Upon his failure to appear at the hearing before me, Union Representative Harris, at the behest of counsel for the General Counsel, attempted to locate and serve a new subpena upon Gossett. Before the close of the hearing Harris returned to the hearing and testified as to his fruitless efforts to locate Gossett. An account of Harris' efforts, which I credit, persuades me that Gossett knew he was being sought, having previously been advised by Harris of the time and place of the hearing, and that he was avoiding service. Upon all the circumstances, I conclude and find that Gossett's actions constitute a refusal to testify. Section 102.44 of the Board's Rules and Regulations, Series 8, as amended, pro- vides that the refusal of a witness to answer a question shall, in the discretion of the Trial Examiner, "be grounds for striking all testimony previously given by such a witness on related matters." A fortiori I deem a refusal to testify at all to be equal grounds for the exercise of the same discretion by me. Upon his refusal, therefore, I hereby rule that all testimony of Derrell Gossett, which constitutes the testimony in Case No. 26-RC-1553 whose credibility I am ordered to resolve,13 be and hereby is stricken.14 Having thus stricken Gossett's testimony it follows that any finding of objectionable conduct based thereon must be vacated as unsubstantiated. 4. The testimony of Respondent's officials It is to be noted that in establishing the threats of Superintendent Davis and Plant Manager Mauldin to have been made on and after January 13, 1961, the Hearing Officer not only relied upon the testimony of Brady, Gossett, and Wortham, but also rejected the testimony of the two officials denying that the threats attributed to them were made during the critical January 13 to 20 period. I, on the contrary, heard testimony from both of these individuals on other matters and have credited them. I heard no testimony from either of these individuals relative to the alleged threats, however, nor do I find it necessary to reevaluate their testimony at the representa- tion hearing. As I have not found substantial evidence to support the alleged 18 Footnote 5, supra. 14 Tidelands Marine Service, Inc., 126 NLRB 261 ; Lenscraft Optical Corporation and Rayex Corporation, 128 NLRB 807, 813-817. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threats during the critical period any analysis of testimony denying such threats be- comes superfluous . I therefore attach no significance to either the denials or to the Hearing Officer's refusal to believe them. 5. Jimmy Mobley The testimony of one other witness in the representation hearing must be noted, although he was not among those whose further cross-examination was directed, there being no issue as to a prehearing statement being requested or denied . Employee Mobley, a witness provided by the Union and called by counsel for the Regional Director testified, and the Hearing Officer so found, that several days before the election Superintendent Davis told him that "the reason they moved the factory out of St. Louis was to get away from the union and if they went union down here they would move it away from it." Questioned at the representation hearing Superin- tendent Davis denied the conversation attributed to him, stating that he had merely given the reasons why the plant had moved from St. Louis, and had said nothing about a further move. At the same hearing Mobley was shown a statement signed by him during the course of an earlier interview with the Respondent's attorneys Therein Mobley stated, contrary to his testimony, that Davis "did not say anything different to me than was in that letter," referring to a letter sent to all employees several days earlier and containing no reference to a planned moving of the plant in the event of a union victory. In resolving credibility with respect to Mobley the Hearing Officer found Mobley to have been straightforward and consistent and placed no reliance upon his con- trary statement which he deemed to be conclusionary and to have lost its value because it was "prepared for him by the Employer's attorney." 15 While I read the Board's remand to me to encompass a reevaluation of all credibility in the Hearing Officer's report to which Respondent took exception, and Respondent did take exception to this particular credibility finding, I do not have any basis for such reevaluation except the transcript of the hearing which I have studied. Mobley was not included among those who would be subject to further cross- examination, consequently I never saw nor heard him. And Superintendent Davis whose explanation and partial denial was discredited by the Hearing Officer when it was never questioned concerning the incident when he credibly testified before me (supra).16 Unless then I overrule the Hearing Officer's determination and credit Davis' earlier testimony simply because he testified truthfully later before me, and I cannot do that,17 I have no other basis.ls Accordingly, I conclude that the finding as to the threat made by Davis to Mobley remains unimpaired by the reliability I have attached to Davis' subsequent testimony. D. Conclusions 1. The validity of the first and second elections Upon my resolution of credibility of witnesses Wortham, Brady, and Gossett, as directed by the Board, I have concluded that there is no credible evidence that any or all of these three employees were told by responsible company officials, be- tween January 13 and 20, that the plant would be moved in the event of a union victory. It would thus appear that the basis for setting aside the election of Janu- ary 20, 1961, had evaporated. There is, however, one element in this case and in the Hearing Officer's report that remains unchanged. I refer to the credited testi- mony of employee Jimmy Mobley and a finding of a threat having been made to Is While I respect the Hearing Officer's right to assign this as a reason for giving "mini- mal weight" to such a statement it is to be noted that this is the usual method followed in obtaining prehearing statements from witnesses and is the one which appears to have been followed, according to witness Wortham, in this very proceeding when Board Agent Burks obtained statements from the witnesses involved here. 15I do not deem the scope of the remand to have included the questioning of anyone except the three witnesses involved, Wortham, Brady and Gossett Accordingly, I would not have permitted the questioning of either Davis or Mauldin on the representation case subject matter had any of the parties sought to do so. 17 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 P, 2d 362 (CA 3). is "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it . . ." N L R B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2). BLADES MANUFACTURING CORPORATION 585 him during the critical period of January 13 to 20. If the Board's action in setting aside the January 20 election is to stand it must stand on the Mobley incident alone. A review of the Board's action in remanding this matter to me indicated that the threats to Gossett, Brady, and Wortham were determinative of the fate of the election. For were this not so I would conclude that the Mobley threat would have been sufficient, standing alone, to decide the case and make unnecessary the re- manding it to me for a further hearing. Unless then I am to assign more weight to this single incident than was assigned to it by the Board, and unless I conclude that this threat to Mobley has more vigor standing alone, as it does now, than it did in the company of threats that were not then rejected, as they are now, I have no alternative but to conclude that the Mobley testimony is still insufficient to establish Davis' remark to him as so objectionable as to require that the Janu- ary 20, 1961, election be set aside. On the contrary, upon the findings herein, I would recommend that the results of the election be certified as correct and valid and that the second election held thereafter on October 17, 1961, pursuant to the Board's affirmance of the Hearing Officer's report, considered in detail above, be vacated and the certification issued to the Union as a result of the Union's selection by the employees in the October 17, 1961, election be declared null and void in that it constitutes a second valid elec- tion directed within the preceding 12-month period, a procedure specifically pro- scribed by Section 9(c) (3) of the Act. 2. Respondent's due process argument At the hearing before me and in its brief filed with me thereafter Respondent vigorously contends that the Board's action in remanding this case in the manner it did deprives Respondent of due process. Thus it is contended that the Board, having found that Respondent should have been furnished prehearing statements of witnesses appearing for the Regional Director at the hearing on objections should have set aside the Hearing Officer's report which recommended that the first elec- tion be set aside and a new election directed. This, it is contended, would permit the rehearing and the reevaluation of all the testimony by the Hearing Officer, as contrasted with the limitations it claims are placed upon me in hearing only the extended cross-examination of three of the witnesses in the earlier case, yet be- ing directed to reevaluate all of the credibility to which exception was originally taken. This failure to order a new hearing and these limitations upon me, it is claimed, deprive Respondent of a fair hearing in the representation matter. The short answer to Respondent's claim of lack of due process requires only that we note the Trial Examiner's position in the scheme of the Board's processes. Es- sentially Respondent requests that I overrule the Board's action in remanding the case to me. This I have neither the right nor the inclination to do. The Board's order of remand is clear and I have striven to follow it, as I am required to do.19 Any complaint which the Respondent may have with the procedure ordered must be directed to the authority ordering it and not to one who believes he is complying with a proper order. 3. The Respondent's bargaining obligation I have concluded that the evidence as I view it does not establish that there was committed objectionable conduct sufficient to set aside the January 20, 1961, elec- tion. The logical sequence of results flowing from this conclusion dictates that the Union, having lost this election and not being entitled to the fruits of a second election within the year, was not properly certified as the exclusive bargaining repre- sentative of Respondent's employees Under such circumstances Respondent was under no obligation to honor the Union's requests to bargain, and its refusal to do so was completely justified. I accordingly recommend that the complaint in Case No. 26-CA-1170 alleging that Respondent refused to bargain with the Union in violation of Section 8(a) (5) of the Act be dismissed. Case No. 26-CA-1236 STATEMENT OF THE CASE Upon a charge filed by the Union on March 8, 1962, a complaint was issued on May 10, 1962, against the Respondent alleging violations of Section 8(a)(3) and 19 Cf Banco , Inc., 109 NLRB 998, 1009, footnote 8; Insurance Agent's International anion, AFT CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772, footnote 17. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further violations of Section 8(a) (5). In its duly filed answer Respondent admitted substantially the entire complaint, excepting only such allegations as denominated Respondent's conduct as violative of the Act. In this respect Respondent con- tended in its answer, as it had in its answer in Case No. 26-CA-1170, that viola- tions against Section 8(a) (5) would not lie because, for reasons previously stated (supra), it did not deem itself obliged to bargain with the Union; and with respect to the allegations of violations of Section 8(a)(3), Respondent contended that the employees involved were discharged for engaging in so-called "quickie strikes" in furtherance of their efforts to compel Respondent to bargain with the Union. By order of July 16, 1962, the Board consolidated this case for hearing with Case No. 26-CA-1170, as noted above. Pursuant to notice, the consolidated hearing was held before me at Paragould, Arkansas, which hearing I indicated would follow, if at all practicable, the com- pletion of cross-examination of witnesses in the consolidated Case No 26-CA-1170. All parties were represented and were afforded full opportunity to be heard, to in- troduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by Respondent and General Counsel and treated of issues in each of the consolidated cases. Upon consideration of the entire record of this consolidated case, including the record and the Board's formal file in Case No. 26-RC-1553, and upon my observa- tion of each witness who ,testified before me at the consolidated hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT As originally found in my Intermediate Report in the consolidated Case No. 26-CA-1170, Blades Manufacturing Corporation is an employer within the mean- ing of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists , AFL-CIO, the Union herein , has pre- viously been determined in these proceedings to be a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The conclusions to be reached in this particular case flow directly from those reached in the consolidated Case No. 26-CA-1170, wherein I have concluded that the Union is not, nor has it ever been, the certified bargaining representative of Re- pondent's employees, and accordingly that Respondent is not and has not been obligated to bargain with it. In this, the sequel to the earlier refusal, the facts are not in dispute. Thus, except- ing only a dispute as to Respondent's motives in the alleged discriminatory dis- charge phase of the complaint, all facts are conceded by the answer. I shall, there- fore, without reference to any related testimony, set forth these facts as they are to be gleaned from the pleadings. B. The alleged refusal to bargain 1. Sequence of events Beginning on October 25, 1961 , the date of the Regional Director's certification of the Union following the second election (supra) and continuing thereafter, and in particular on February 15, 21, and 28, 1962, the Union requested the Respondent to negotiate with it as the representative of its employees . During this same period, meanwhile, Respondent took certain action not in line with the Union 's request. Thus, without notice to or consultation with the Union, it placed in effect a group life and hospitalization plan on January 31, 1962, it reprimanded employee Jerry Reynolds on February 15, 1962, it laid off employee Homer Haney on February 20, 1962, and it laid off employee Lynn Beliew on February 28, 1962.20 The Union 2OIn ruling upon a pretrial motion directed to the dismissal of portions of the com- plaint, Trial Examiner Sidney Sherman dismissed allegations relating to the fact of Haney's and Bellew's layoffs . As I read the Trial Examiner's ruling I deem it to be a statement of legal conclusion that prior consultation concerning the layoffs were not re- quired of Respondent. I do not, however, consider myself foreclosed from finding as a fact that the layoffs did occur as alleged, as admitted in Respondent's answer, and as thereafter admitted at the hearing. BLADES MANUFACTURING CORPORATION 587 sought to discuss with Respondent grievances which arose as a result of each of the foregoing personnel actions, excepting only the insurance action on which there is no evidence. In response to the respective Union requests Respondent on Febru- ary 15 refused to negotiate and discuss the grievance relating to Reynolds' reprimand, and refused in like manner on February 21, 1962, with respect to Haney's layoff, and February 28 with respect to Beliew's layoff. 2. Respondent's contentions It is Respondent's contention, as adequately expressed in its answer and there- after at the hearing, that because as contended in Case No . 26-CA-1170, the second election which resulted in the Union's certification was invalid and void having been conducted in violation of Section 9(c)(3) of the Act(supra ), it was under no obligation to negotiate or discuss with the Union concerning any of the grievances raised. 3. Conclusion I have already concluded that the first election held in Case No. 26-RC-1553 was not established, under the facts as I find them herein, to have been so objectionable as to warrant its nullification (supra). Accordingly, I found the Union was not the properly certified representative of Respondent's employees the Union having lost it. Under such circumstances the Respondent was entirely correct in asserting the position that it did here, namely that it was under no obligation to negotiate or discuss grievances or any other bargaining subject matter with the Union. I therefore recommend that so much of the complaint as alleges a further refusal to bargain in violation of Section 8(a)(5), and the consequent interference, restraint, and coercion in violation of Section 8(a) (1) be dismissed. C. The alleged discriminatory discharges and refusals to reinstate Quite apart from Respondent's refusal to negotiate or discuss the grievances of Reynolds, Haney, and Beliew, there is present an issue of discrimination which arose as a result of the Union's, and the employees' actions in connection with these personnel incidents. So, it is conceivable that although Respondent may not have been obliged to bargain with the Union, it may, by its treatment of those who sought to process the grievances, have discriminated against them in a manner proscribed by the Act. 1. Sequence of events As noted above, the Union, upon being certified and thereafter being deprived of the fruits of its certification by Respondent's several specific refusals, embarked upon a course of action designed to settle the issue in its own favor. As previously noted, employee Reynolds received a written reprimand on Febru- ary 15, the basis for the reprimand being, according to employee Wilcoxson, the union steward, "not putting out enough work," a shortcoming credibly testified to by Plant Manager Mauldin. The union members among the employees immediately held a meeting at which it was decided that if the Respondent would not meet with Wilcoxson, the steward, to discuss grievances they would walk out "for approxi- mately one day at a time." 21 Wilcoxson sought to talk with Mauldin who refused to do so for reasons previously considered (supra). Whereupon the men walked out for the remainder of the shift and returned to work on the following day. The same situation prevailed on February 21, when, on the day after employee Haney was given his layoff, Plant Manager Mauldin refused to discuss it with Wilcoxson, stating he would discuss it with the individual involved but not with representatives of the Union. Whereupon, and again by prearrangement, the members again walked off the shift and reported back for work on the following day. And finally, after ad- mitting to Plant Manager Mauldin on February 27 that he was slowing down his work as part of union activity, employee Beliew was given a 3-day layoff on the following day for this stated reason 22 In the usual sequence Wilcoxson sought on 21 The credited testimony of Wilcoxson. 22 The credited testimony of Mauldin. I do not credit the testimony of one Johnson, a former supervisor, that on February 28 the layoff slip was given to Bellew promptly in mid-shift, rather than at the end of the shift, to insure that the union-oriented employees would have an opportunity to walk off the shift in protest and return on the following day, thus providing Respondent an opportunity to discipline the employees for their action. Indeed, assuming the testimony to be accurate , I do not see how the employees ' motive for or methods of striking would become proper simply because the opportunity to strike became available to them. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 28 to discuss Beliew's grievance, was refused, and on the same day the men again walked off the job. Respondent's reaction to all of this was, on each occasion, to correct the slowdown that it found was creating a bottleneck to its production. Thus on Thursday, February 15, upon experiencing the first walkout, it dispatched a letter to each of the 31 employees who engaged in the walkout,23 advising them that unless they reported for work on the following Monday, February 19, they would be replaced. When the second walkout occurred a week later Respondent again dispatched a letter to each employee involved which stated as follows: In less than a week, there has been two work stoppages by certain employees. It is impossible for the Company to operate its business when it does not know from day to day that its employees will do their assigned work. This is to advise you that if the employees who walked out on February 21, 1962, do not report for work on their respective shifts on February 26, 1962, they will be immediately replaced; and if the above conduct is repeated the parties engaging in such temporary work stoppages will be discharged. Thereafter, by letter of March 1, upon the accomplishment of 'the third walkout, Respondent discharged each employee involved, stating as follows: You have been previously warned about engaging in unprotected activity. You have disregarded such warnings and engaged again in another act. Therefore, in accordance with the warning previously given you, your em- ployment with Blades Manufacturing Corp. is hereby terminated. These employees have never been reinstated to their employment with Respondent. 2. Respondent's justification for the discharges It is Respondent's contention that the employee conduct which culminated in the discharge of 31 of its employees represented a manifestation of union policy cal- -culated to obtain union recognition and bargaining when, according to Respondent, there was no obligation on its part to recognize or bargain. Respondent first points to a letter addressed to its attorney by Union Representative Harvey Christian upon its initial refusal to meet with the Union after the October 1961 election. This letter stated in part: Be advised that the employees has [sic] been informed of their protected rights under the Act, to act concertedly in protest of the company's numerious [sic] violations of the Act. Past concerted action on the part of the employees has been based on and brought about by the company's total disregard for and refusal to abide by the law. Until the company decides to start living within the spirit of the law and abiding by the intent of congress, the company, can expect future concerted moves and activities by its employees, in protest of the company's total disregard of the Act, in connection with their employment. When asked at the hearing what decision was thereafter taken concerning strike action Christian replied: It was somewhere around the 10th of February. There had been a union meeting in the City Park at Rector, in which the boys were right perturbed over the number of disciplinary warning slips, lay-offs and so forth that they were getting and they asked me what they could do about it. I told them that we had the charges filed and that we were awaiting Board action and that the only thing that they could do is they had to present those in the form of grievances and they says, "Well, what if the company won't meet with us." I says, there is only one thing that you can do in that case. I said, may be if you would walk out for a day, then the company would either start adjust- ing the grievances with you or they would slowdown on issuing them. Testifying to the purpose of this policy, when asked if he understood it to be company policy not to discuss the grievances, Union Steward Wilcoxson replied, "He (Mauldin) had a chance to recognize the union committee each and every time." And in testifying in answer to a series of questions as to the implementation of the policy, he stated: A. . . We decided if he wouldn't meet with us and adjust grievances that we would walk out. Q. For the rest of the shift9 23 By stipulation of the parties it was agreed that the 31 employees listed in para- graph 25 of the complaint were those who walked out on the three occasions herein, and was sent the communications referred to BLADES MANUFACTURING CORPORATION 589 A. For the rest of the shift. Q. . . . It was understood and agreed upon between all of you before these walk-outs occurred that they would just be for the remainder of the shift? A. Well, not necessarily. Q. What do you mean, not necessarily? A. If we walked out 10 minutes on a shift, lacked 10 minutes working that day, we wouldn't have just quit work the next day, we wouldn't be out a day. TRIAL, EXAMINER: What does being out a day have to do with it? The WITNESS: Well, it doesn't have nothing to do with it, sir. It's just that we wanted him to adjust grievances and he wouldn't do it and we walked out. Q. It was your understanding and the understanding among all of the men, an agreement among the men, that when the committee would go to Mr. Mauldin to try to adjust grievances if he would not adjust agreements with you, you would then walk out for the remainder of the shift, however many number of hours that might be? A. We agreed to, walk out. Q. You did not answer my question. A. Well, for the rest of the shift. We reported back to work within a day. Q. It was understood and agreed upon between you that you would report back for work the next day; wasn't it? A. Yeah, it was agreed on. 3. Conclusions It is apparent from what followed that the Union's written assurance that "the company can expect future concerted moves and activities by its employees" was not an idle boast, and the action which followed lived up to these expectations. Thus it is clear, as Respondent contends, that the Union embarked upon a policy designed to obtain recognition and bargaining. The credited testimony of employee Wilcoxson to which I have referred above makes it evident that this policy was administered in logical sequence. Whenever there was a grievance discussion with the Com- pany would be sought, and when refused a walkout for the rest of the day would follow. There is one piece missing from Wilcoxson's description of the strike policy and this was supplied by Plant Manager Mauldin's and Superintendent Davis' credited testimony-the manner in which the grievances arose in the first place. While I find no testimony concerning Haney's shortcomings, it is clear that both Reynolds' and Beliew's poor production was the result of a slowdown on their part. Indeed, illustrative of this is Mauldin's credited account of his reprimand of Beliew during the course of which Beliew told him "he wasn't putting out a day's work because we wouldn't negotiate with the Union and he wasn't going to until we did. Regardless of the motivation or the substantiality of the grievances here, the real gravamen of this case is the manner in which the grievances were presented by the Union. Thus in essence it is immaterial whether the grievance be real or fancied, or if real, whether they were grounded in malice or in ineptitude. Under any circumstance, it may be asked, does a pattern of employee walkouts of short duration properly constitute a form of protected protest, or protected concerted activity permissive under the Act? In resolving this basic question one further element must be considered and that is whether this was an unfair labor practice strike. As I have found that no viola- tion of Section 8(a)(5) was committed it follows that this concerted protest of Re- spondents refusal, not being a protest of an unfair labor practice, was therefore not an unfair labor practice strike. It is to be noted, moreover, that whether this is or is not an unfair labor practice strike is of no relevance; for it is not the strike's particular species that is of consequence here but rather the manner in which it was prosecuted; unfair labor practice strikes being as susceptible to the taint of im- propriety or illegality as are economic strikes.24 Returning then to a consideration of the manner in which the Union sought to establish recognition and bargaining it is clear that the prearranged calling of work stoppages of short duration, fully intending, as here, to return on the following workday, constitutes the type of work stoppage previously considered by the Board and the courts and found to have constituted a variety of concerted activity not 24 The illegal sitdown strike In N.I.R.B. v. Fansteel Metallurgical Corporation, 306 U.S. 240, 251, was conducted in protest of an employer's refusal to bargain with the representative of a majority of Its employees. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected by Section 7 of the Act 25 As the 31 employees who thus withheld their services, even in the face of the two specific warnings given them, were each specifically discharged for the stated reason that they did engage in the stoppages, after warning, I must necessarily conclude that since the activity in which they par- ticipated was not within the protection of Section 7, their discharge for thus con- ducting themselves did not constitute a discrimination against them. I accord- ingly find and conclude that so much of the complaint as alleges discrimination against the 31 striking employees herein in violation of Section 8(a03) of the Act and in- terference, restraint, and coercion of them in violation of Section 8(a)(1) be dismissed. RECOMMENDATION It is recommended that the complaints in both Case No. 26-CA-1170 and Case No. 26-CA-1236 be dismissed in their entirety. 25 international Union, U.A.W.A., A.F. of L., Local 232, at al. v . Wisconsin Employment Relations Board, et al. (Briggs & Stratton Corp. ), 336 U.S. 245; C. G. Conn, Limited v. N.L.R.B., 108 F. 2d 390 ( C.A. 7). Cf. Textile Workers Union of America, CIO, and Local 1172, at al. v. N.L.R.B. (Personal Products Corp. ), 227 F. 2d 409 (C.A.D.C.). Truck Drivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Brown Transport Corp. Case No. 10-CC-510. September 16, 1963 DECISION AND ORDER On March 1, 1963, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the Charging Party filed exceptions to the Intermediate Report and a brief in support of said exceptions; the Respondent filed a brief in support of the Inter- mediate 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 [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the following additions. The Charging Party's request for oral argument is hereby denied, inasmuch as the record and the briefs adequately present the positions of the parties. The Board has also considered the Charging Party's request to reopen the hearing or, alternatively, to accept the affidavit of its attorney concerning certain testimony he would have given had he taken the stand. As no newly discovered evidence is involved, the request and the alternative request are hereby denied. 144 NLRB No. 30.