East Texas Pulp and Paper Co.

EAST TEXAS PULP AND PAPER COMPANY 427 (c) Notify the Regional Director for the Twenty-third Region in writing within 20 days from the date of the service of this Intermediate Report what steps the Re- spondents have taken to comply herewith." n In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain in good faith with Construction and General Laborers Union, Local No. 18, International Hod Carriers , Building and Com- mon Laborers Union, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit: All hod carrier and laborer employees of our members and associate members, exclusive of all supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL, upon request , bargain collectively in good faith with the above- named labor organization concerning all matters relating to wages, hours, and other terms and conditions of employment, including a nondiscriminatory ex- clusive referral arrangement , and embody any understanding reached in a signed agreement. HOUSTON CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) CONSTRUCTION EMPLOYERS' ASSOCIATION OF TEXAS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 650 M & M Building, 1 Main Street, Houston, Texas, 77002, Telephone No. Capitol 2-7201, Extension 041, if they have any question concerning this notice or compliance with its provisions. East Texas Pulp and Paper Company and Ike E. Baugh. Case No. 2.3-CA-1470. June 28, 1963 DECISION AND ORDER On March 25,1963, Trial Examiner William Seagle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and granted the Respondent's motion to dismiss these 143 NLRB No. 55. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the excep- tions and briefs,' and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner with the modifications noted herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. MEMBER BROWN, dissenting in part : I agree with my colleagues' disposition of this case except insofar as it adopts the Trial Examiner's dismissal of the complaint's allega- tions that the Respondent, in violation of Section 8(a) (4), refused to rehire or consider for employment the 11 complainants named therein .3 The basis for the Trial Examiner's dismissal is that the "relation of cause and effect between the filing of the charges and the denial of employment" was not established. He reached this conclusion be- cause he found that no application by the complainants for employ- ment was pending before Respondent at the time the charges were filed, and, in any event, no refusal to employ or consider for employ- ment because of the filing of the charges was shown. I disagree with the Trial Examiner on both counts. As more fully detailed in the Intermediate Report, all 11 com- plainants involved applied for reemployment on May 13 immediately following the termination of the strike. When the applications were rejected, all these complainants, except Stutts, filed grievances alleg- ing discrimination in the rejection of their applications. No com- I The Respondent contends, in its exceptions to the Intermediate Report, that the Trial Examiner was biased and prejudiced in making his findings of fact and conclusions of law, and that he made all credibility decisions against the Respondent. Upon careful examination of the entire record and Intermediate Report, we are satisfied that the Re- spondent's contentions are without merit . Regarding bias, the Supreme Court has stated that even "total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of facts " N.L.R B. v Pittsburgh S.S. Company. 337 U. S 656, 659. The Respondent has requested oral argument The request is hereby denied because the record, the exceptions , and briefs adequately present the issues and positions of the parties. 2 In view of our affirmance of the Trial Examiner's finding that Respondent did not violate 8 ( a) (4) of the Act, we find it unnecessary to pass on the Trial Examiner's state- ments respecting a remedy if a technical violation of the section had been established 3 The names of these employees appear under section III, A, of the Intermediate Report. EAST TEXAS PULP AND PAPER COMPANY 429 plainant was successful in regaining employment through his griev- ance, and, on August 13 and 17, unfair labor practice charges were filed on behalf of all 11 complainants alleging discriminatory refusals to rehire following the strike. These applications for employment, grievances, and charges amply demonstrate that the complainants did not abandon their desire for employment with the Respondent, and that they manifested this desire for work at all critical times herein. As indicated above, I likewise reject the Trial Examiner's finding that the filing of the charges by the complainants in no way affected their opportunity for employment with Respondent. When the em- ployment applications of May 13 were rejected, the possibility of fur- ther employment was held out to the complainants, as found by the 'Trial Examiner. About August 24, however, following the filing of the charges, when Brown, Respondent's vice president, induced Shafer to drop his charge against Respondent, Brown promised Shafer fur- ther employment if he took his name off "that petition" and said that "these men may win these cases, and it may cost the Company fifty -thousand dollars, but that they would continue to fight them ... they wouldn't be on the job thirty minutes after ... they won it the first -time, until he would fire them again, and then the NLRB may be back on his neck again, but he would continue to fire them ... it may take -ten years to get rid of them, but the Board would change one of these -days, and when he did get rid of them men, they would be dead ducks . . . ." Further, when, between August 25 and 30, Brown in- duced Harding to withdraw his name from the charges, Brown told Harding of a conversation he, Brown, had had with Foreman Robin- son in which, when Robinson asked why Shafer and Harding could not be rehired, Brown replied that he "couldn't even consider it at this time while the grievances were going on." On the same occasion, Brown told Harding that if the rest of the employees did not drop their "grievance," Respondent would, "if they were rehired . . . fire them again . . . and again .... As long as they have got them [the "grievance"] if they go back to work, I will fire them." Quite clearly, Shafer's and Harding'-, further employment with the Respondent was conditioned upon their renouncing the "petition" or "grievance." As for the rest of the employees, the opportunity for further employment, which was held out to them in May. vanished after the charges were filed; they obviously had no hope of reemployment thereafter. If Shafer's and Harding's further employment with Respondent was conditioned upon their renouncing the charges and if the other complainants lost even the chance to be considered for further employ- ment, all because of the charges herein, these employees would have been discriminated against in violation of Section 8(a) (4). In the latter connection, the Trial Examiner ascribed Respondent's hostility to the employees to their having filed grievances. I would find that 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was the charges which Shafer and Harding had to renounce to be, considered for employment, and it was the charges which moved the Respondent to bar the other employees from any further consideration for employment. I am so persuaded by Respondent's efforts to in- duce Shafer and Harding to withdraw their charges and by Brown's statements in the circumstances of his conversations with Shafer and Harding, as reported above; by Harding's explanation of his use of the term "grievance" as referring to "the one we filed at the Company, and we filed a petition or signed a petition, or filed a petition, with the NLRB"; by the fact that both Shafer and Harding, and Moore too, had withdrawn their grievances before the charges were filed, upon pressure by Respondent; and by the fact that Stutts, although joining in the filing of the charges, filed no grievance, and the grievances of all the others had been disposed of as of the date of the aforementioned conversations, except for two which were to go to arbitration. Based upon these considerations, I would find that Respondent also violated Section 8(a) (4) of the Act by discriminating against the em- ployees involved because they filed charges under the Act. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Under date of August 13, 1962, a charge was filed against the Respondent alleg- ing that on May 10, 1962, it had terminated the employment of five of its employees, had discriminated against them, and had interfered with, restrained, and coerced them in the exercise of their rights under Section 7 of the Act. Under date of August 17, 1962, an amended charge was filed making the same allegations but adding the names of six additional employees to those enumerated in the original charge. Under date of September 27, 1962, a second amended charge was filed, alleging that on or about August 26, 1962, and thereafter, the Respondent had discriminated against the 11 employees named in the previous charges because they had filed these charges with the National Labor Relations Board. Under date of September 28, 1962, a complaint was issued against the Respondent alleging violations of Section 8(a)(1) and (4) of the Act. In substance, the alleged Section 8(a) (1) violations were that the Respondent through its plant manager, Ray Brown, or through its president, R. M. Buckley, had told various employees on different occasions that they would never be employed by the Respondent or receive a recommendation for employment elsewhere as long as they processed a grievance filed by them with their union, and that Brown had solicited two em- ployees to withdraw charges filed with the Board, either under a promise of re- employment or a threat of future blackballing. The alleged Section 8(a)(4) viola- tion was that the Respondent was discriminating against, and refusing to rehire or consider for reemployment, the 11 employees named in the previous charges and in the complaint because they had filed charges or were named in a charge filed with the Board. On November 27, 28. 29. and 30, 1962, Trial Examiner William Seagle held a hearing with respect to the allegations of the complaint at Beaumont, Texas. Coun- sel for the Respondent presented oral argument at the close of the hearing, and, subsequent thereto, counsel for the General Counsel, as well as counsel for the Respondent, filed briefs which have been duly considered. Upon the record so made, and in view of my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all material times, the Respondent (sometimes referred to hereinafter as East Texas), which is a corporation organized under the laws of Delaware, has main- EAST TEXAS PULP AND PAPER COMPANY 431 tamed its principal office and place of business at Evadale, Texas, where it has been ,engaged in the manufacture and sale of paper products. During the past 12 months, which is a representative period, the Respondent, in the course and conduct of its business operations, sold and shipped from its plant at Evadale, Texas, paper and related products valued in excess of $1,000,000, to States other than the State of Texas. It is not disputed that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO; its Locals 801 and 825; and International Brotherhood of Electrical Workers, Local 479, are labor organizations within the meaning of Section 2(5) of the Act. Beaumont Building and Construction Trades Council, AFL-CIO (hereinafter referred to as the Beaumont Trades Council), is also a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharges The present proceeding is an unanticipated byproduct of a plant expansion pro- gram undertaken by the Respondent in 1962.1 This program, which was designed to increase the productive capacity of the Respondent by approximately 50 percent and to require the employment of approximately 125 additional workers, was sched- uled for completion in October 1962 but at the time of the hearing construction was behind schedule. In May 1962, a warehouse, which was a preliminary to the plant expansion program, was under construction by the Brown & Root Construction Company. About 2 weeks prior to May 11, the Beaumont Trades Council commenced to picket the Brown & Root job, the pickets bearing signs reading: "Beaumont Build- ing Trades Council protests the working conditions on this job by Brown & Root Construction Company." The picketing was carried on at a point where FM Highway 105 2 intersects the construction road. This road was not used ordinarily by the employees of East Texas to gain access to the plant. But, at approximately 5:45 a.m. on May 11, the Beaumont Trades Council also commenced to picket the main entrance road which led to the East Texas plant from FM Highway 105, and which was used by the employees of East Texas to enter and leave the plant. At the time of this picketing, the East Texas production and maintenance em- ployees were covered by a single labor contract between the Respondent and Locals 801 and 825, the production employees being represented by Local 801, and the maintenance employees being represented by Local 825. In all, there were approxi- mately 450 employees in this bargaining unit. In addition, the Respondent had a labor contract with International Brotherhood of Electrical Workers, Local 479, covering such of its employees as were represented by this union, namely its main- tenance electricians and instrument men. The contract with the Pulp and Sulphite locals, as well as the contract with the IBEW local, contained provisions prohibiting strikes or other interruptions to production during the effective periods of the agreements. Nevertheless, 186 employees of the Respondent who were represented either by the Pulp and Sulphite locals, or by the IBEW local, refused, on May 11 and 12, to cross the picket line at the main entrance road to the East Texas plant .3 The Re- spondent obtained an injunction against the picketing in the District Court of Jasper County, Texas, on the morning of Saturday, May 12, and the picketing ceased about midnight that day. When the East Texas management officials learned early in the morning of May 11 that some of the employees were refusing to cross the picket line, they called in the union officials, and informed them that the picketing was illegal, and that the employees were under an obligation under the terms of the contracts to come through the picket line and go to work. The union officials were also told that the timecards of the employees who had refused to cross the picket line had been pulled from the racks but that if they reported for work within 30 minutes nothing I Unless otherwise indicated, all dates subsequently mentioned will be in 1962. 2 "FM" signifies Farm to Market. 3 Only a few of these 186 employees were represented by the IBEW local. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be done about their failure to report for work at 6:30 a.m. as scheduled.4 The union officials agreed to attempt to get the employees back to work, and went out to the picket line for that purpose. When the injunction put an end to the picketing, the 186 employees, who had refused to cross the picket line on either May 11 or 12, were told at the union hail to report to the plant on May 13, which was a Sunday, and make application for re- employment. Most of them did so, and of these 186 employees, 156 were rehired by the Respondent, although the employees so rehired lost their seniority. All of the employees who applied for reemployment were interviewed by L. C. Menius, the Respondent's personnel director, who told the 156 who were rehired to report for work the next day. The employees who were not rehired were told by Menius to report the next day to Brown. These Sunday interviews between Menius and the employees occurred close to the hour of midnight. The 11 employees who are included in the complaint were among the 30 em- ployees who were not rehired.5 The names of the 11 employees,6 the dates when they were first employed by the Respondent, and the nature of their jobs are as follows: Name of employee Date of employment Job Ike E. Baugh__________________ May 30,1957 ---------------- Papertester Charlie J Dickerson ----------- November 15,1954 ---------- Carpenter Emile Lucille Dickerson_______ February 5,1957____________ Stencil inspector W. H Sheffield --------------- April 30,1956 ---------------- Caustic operator Bobby Charles Harding_______ July 17,1018 ----------------- Second helper, recovery E. H. Reeves------------------ ------------------------------ Backtender, machine room #l Billy Wilkerson_______________ November 1959______________ Broke beater Harold E Shafer______________ April 13, 1955_______-_____-- Kiln operator E E Cowart__________________ July 21,1955 ----------------- Second helper, bleach plant Roy F Moore_________________ January 21, 1955_____________ Cutter operator Clayton Stutts________________ December 5, 1955____________ Crane operator, woodyard All of the 11 employees named in the complaint filed applications for reemploy- ment by the Respondent, and they were duly interviewed by Brown during the after- noon of Monday, May 14. But these interviews by mere formalities, since Brown had already prepared a little list of the employees whom he either did not intend to rehire or whose rehiring he considered doubtful? The names of those not to be rehired were marked with an "X" on this list. and Brown had put an "X" op- posite the names of each of the employees named in the complaint. Thus all of them were told by Brown in the course of the interviews on May 13 that they would not be rehired. Each of these 11 employees except Reeves testified in sub- stance or in effect that Brown told them that there was nothing wrong with his work, and that he might be reemployed when the Respondent's plant expansion program was completed. Only Stutts put Brown's remarks more positively, testify- ing that Brown told him that he liked him personally, and that when the plant ex- pansion program was completed "he would sure" have something for him; and Shafer merely testified that Brown told him that he would not be blackballed but would be hired back at some later date. Brown's interviews with the 11 employees on May 14 were generally brief 8 and not unfriendly. Indeed, there were some manifestations even of what might be described as cordiality on the part of Brown, and in several instances it consisted of his promising good references elsewhere. For instance, Charlie J. Dickerson testified that when he got up to leave, Brown slapped him on the back and inquired: 4 It seems that actually the employees were allowed until about 2 p m to report for work This would be practically until almost the end of the first shift. 6 Of the 30 employees who were not rehired, 15 did not seek reemployment, and 14 of these 15 employees were "extra board" or temporary employees and 1 was a member of the IBEW. 6 The names of 10 of the 11 employees who testified at the hearing will be given to they appear in the transcript. As one of these employees, E. H Reeves, did not testify at the hearing, the date of his employment is not established. The list is in evidence as Respondent's Exhibit No 4. 8 Brown himself specifically testified that his meetings with Cowart and Baugh were short meetings On May 14, about 20 employees were waiting to hale interviews with Brown. EAST TEXAS PULP AND PAPER COMPANY 433 "No hard feelings?" and that thereupon he replied: "Not on my part." Sheffield testified that he even discussed his ambitions with Brown, telling the latter that he was taking a correspondence course, and aspired to be something more than a mere operator; that Brown then intimated that he might ultimately rehire him in a better job than that; and that Brown then gave him the names of two mill managers to whom he could apply for a job, and told him that he could use his name as a reference. Moore testified that when he asked Brown whether he would give him a recommendation for other employment, Brown replied in the affirmative, and also told him that he could use him name freely on any employment application. Similarly, Stutts testified that Brown promised to give him a good reference. Brown himself admitted that he promised to consider Sheffield for a foremanship after he had proved himself elsewhere, although he believed that this occurred at a later meeting at his home. In the case of Mooie, Brown admitted that he told Moore that he could use his name freely in making an application for employment, despite the fact that he was already aware of his activities on the picket line. Even more significantly, in the case of Stutts, Brown also admitted that he would help him get a job, despite his past record, which included reprimands for drinking on the job, as well as "a lot of other different things." Brown's explanation for his leniency toward these employees was that he felt that they had learned their lesson, and that he would not, therefore, blackball them. B. The filing of the grievances All 11 of the employees named in the complaint except Clayon Stutts filed griev- ances after their discharges pursuant to Section 7 of the contract with Locals 801 and 825. These grievances were all filed the very day following the interviews of these employees with Brown, except that Moore and Reeves filed their grievances on May 21. All 10 of the employees who filed grievances based them upon a charge of discrimination against them, alleging that the Respondent had discharged them for failing to cross the picket line, although other employees who had been guilty of the same conduct had been reemployed. Only E. E. Cowart alleged, in addi- tion, that he had been afraid to go to work because of threats of bodily harm to him and his family. Section 7 of the contract with the union provided for the handling of grievances at various levels, involving the union and company officials. In the preliminary stages, a grievance was to be handled informally by the aggrieved employee-with the assistance perhaps of the shop steward-first with his foreman and then with his department superintendent. If no settlement was effected in this manner, the griev- ance could be carried to the resident manager and to another company official. If the grievance could still not so be adjusted, it could be taken to arbitration. In actual practice, it was Leon M. Rogers, the president of Local 801, who was priri- cipally responsible for handling the grievances on behalf of the union, and Brown and R. M. Buckley, the Respondent's president, who handled the grievances on behalf of the Company.9 The grievances filed in the present case would neces- sarily involve an interpretation of the third paragraph of section 10 of the contract which prohibited strikes or other interruptions to production. This provision of the contract reads as follows: The Company may discipline or discharge any employee or employees who engage in or encourage a strike, and such action shall not be subject to review upon any ground other than that the employee did not take part in the strike. The Company agrees, however, that no discrimination shall be exercised in applying discipline or discharge for such action [Emphasis supplied.] The first three grievances to be considered by Brown were those of Charlie J. Dickerson, Emlie Lucille Dickerson, and Sheffield These grievances were rejected by Brown in letters to the Union dated June 1, which apparently were written the same day as the meetings on the grievances. The grievances of Wilkerson and Moore were similarly rejected by Brown on June 14; that of Baugh on June 28; and those of Harding and Cowart on July 10 and 12, respectively. The grievances of Emlie Lucille Dickerson, Wilkerson, Moore, and Charlie J. Dickerson were also carried to a higher level, and were rejected by Buckley, the Respondent's president, on June 18, July 5 and 27, and August 15, respectively. Subsequent to the rejec- tions of the grievances of the two Dickersons by Buckley, they were carried to arbitration. The grievance of Reeves was never formally processed apparently because he left the local scene to take employment elsewhere. Harding dropped g The record shows that Wayne Robinson, the plant superintendent, participated in handling the grievances at the informal level. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his grievance after it had been rejected by Brown on July 10, and Moore dropped his grievance after it had been rejected by Buckley on July 27. Shafer also dropped his grievance but it does not appear that it had ever been considered formally by either Brown or Buckley.io In his letters to the Union rejecting the grievances of Baugh, Harding, Wilkerson, Moore, Sheffield, and the two Dickersons, Brown rejected them on two grounds, namely, (1) the failure of the aggrieved employee to report for work, and (2) the nature of the activity of the aggrieved employee on the picket line. Only in the case of Cowart was there no mention of picket line activity as a reason for reject- ing his grievance; the reason given in his case, in addition to his failure to report for work, was his "extremely poor work record and absentee record." The letters in which Brown disposed of the grievances were really form letters. While the paragraph in which reference was made to the failure of the aggrieved employees to report for work was both adequate and accurate, except in one case," the paragraph in which reference was made to their picket line activity fails to reveal the nature of this activity. It appears from the other evidence, however, that Brown charged Emlie Lucille Dickerson with telephoning to some of the East Texas female employees to tell them not to report for work; Charlie J. Dickerson, with riding up and down the picket line, saluting the pickets and slapping them on the back; Moore, with pulling buttons off a woman's blouse and threatening to assault any employees who crossed the picket line; and Harding, with knocking on the doors of employees and telling them not to report for work.12 While the precise nature of the picket line activity of which Shafer stood accused does not appear, Brown seems to have had at least some affidavits bearing on such activity. But while counsel for the Respondent in examining Brown, made a determined effort to establish everything that was said at the grievance hearings, he failed wholly to elicit any testimony that suggests any picket line activity on the part of Baugh, Wilkerson, or Sheffield. Indeed, there appear to have been other motives actuating Brown in selecting the employees whom he intended to discharge, and these motives were not so much as mentioned in the form letters, except in the case of Cowart. In fact there were some other employees who were selected for discharge because Brown did not regard them as desirable employees, and simply took advantage of the opportunity to settle old scores. In this category were, apparently, in addition to Cowart, Baugh, Charlie J. Dickerson, Sheffield, and Wilkerson. The two employees who aroused Brown's greatest animosity and ire appear to have been Baugh and Cowart. With respect to Baugh, Brown testified as follows: Q. Now, what respect was Mr. Baugh undesirable? A. I don't know if I said it-I said it in one of his meetings, grievance meet- ing, with Mr. Baugh and Mr. Rogers present. He was a good employee for the first two years. He never made over sixty dollars a week until he started to work for us. And as soon as he got his belly full, he started doing every- thing he could against us. He went around with a notebook and a pencil in his hand trying to get people to file complaints, and he was in our hair continuously. His supervisor had had some trouble, not a great deal, but he had some, of getting him to stick to the job because he was busy running around over the mill looking for trouble. Q. Yes9 A. And then- Q. Yes, go ahead. Go ahead. A. He got to be an officer of the union and he was worse. He got to be a Vice-President. So luckily he decided he would run for President, and he got defeated for President, and he did pretty good the last couple of months after he got defeated. 1u Although the written grievances themselves and the letters disposing of them were produced by the Respondent and are in evidence as Respondent's Exhibits Nos. 18 to 27, inclusive, there are no letters indicating a formal disposition of Shafer's grievance 11 Actually, Cowart had reported for work on May 11, and had failed to report for work on May 12 only because his wife was ill and he had had to take her to a doctor 18 In an interview which Harding had with Brown and Menius shortly after the filing of his grievance but before his scheduled grievance meeting, Harding asked Brown: "How many doors have I knocked on, and who says that I knocked on them. Was it fifteen, half a dozen. or one?" Menius interposed to reply: "One door would be too many," where- upon Harding said: "Touche !" Harding testified that while be had not knocked on any doors, he had visited the homes of various employees and talked to them. EAST TEXAS PULP AND PAPER COMPANY 435 Brown had an even worse opinion of Cowart, apparently. He testified that he told Cowart to his face in the interview that he had with him on May 14 that he was "one of the sorriest employees we ever had ." Asked on direct examination if he was personally familiar with Cowart's work record , he replied : "I sure was," and he went on to explain : "Well, he worked for me at one time when I was in the pulp mill, and I had trouble with him many times in the pulp mill . He was an alcoholic. He wouldn't report for work . And we put up with him and put up with him and put up with him, and later we gave him reprimands in lieu of discharge ." Again Brown disclosed with reference to Cowart : "He is a sorry worker, he was there half of the time. He is out laying around drunk most of the time . He doesn't get along with his fellow employees. He won't do what he is told. And anything else you want to think of about this man." [Emphasis supplied.] It is evident that Brown was seeking to create the impression not only that Cowart had been a sorry worker and a drunk in the past but also that there had been no improvement in his conduct either as a man or as employee. C. The attempts to secure the withdrawal of the grievances Brown's attitude toward the discharged employees who had refused to cross the picket line hardened after all but one of them had filed grievances . Naturally this is best exemplified by the difference in his attitude toward Stutts , who had not filed any grievance, and Cowart, who had filed a grievance . Although both had been alcoholics, Brown was willing to recommend Stutts for other employment but had no further use for Cowart. In the end, Brown did not confine the manifestations of his displeasure to declining to recommend employees who had filed grievances but also declared to several employees when opportunity offered that he would refuse to give them any recommendation for other employment as long as they had grievances pending against him. He made such declarations to Wilkerson , Sheffield, Shafer, and Harding. After filing his grievance on May 15, Wilkerson had left for Denver , Colorado, to take a job there. After his grievance had been denied by Brown , Wilkerson was informed by the Union that if he wished to carry his grievance through Buckley, he would have to return by July 6. Wilkerson, who seems to have an acute sense of grievance, and a burning desire "to clear his name," as he expressed it, and who was also fearful that his discharge might affect the opportunities of his two sisters and a brother for employment at the East Texas plant , returned to Beaumont about a week before July 6 and asked Rogers, the president of Local 801, to arrange a preliminary meeting between himself and Brown , apparently so that he could appeal to the latter to give him his job back. It was at this meeting in Brown's office, at which Menius and Rogers were also present , that Brown, after denying Wilkerson's plea for reinstatement , told him that he had given recommendations for employment elsewhere to Shafer and Reeves after they had dropped their griev- ances, and that he would give Wilkerson a recommendation if he dropped his griev- ance, which Brown compared to a knife in his back . As Wilkerson put it: "Well, he said being as I had that grievance against them that was just like holding a knife in his back, and he couldn't afford to give me a recommendation for another job." Subsequently, Wilkerson's grievance was denied by Buckley. The Union wished to take Wilkerson's grievance to arbitration but it failed to act within the 15 days allowed by the contract , and Buckley refused to waive its failure to act in time. Having previously been encouraged by Brown, Sheffield, who was planning to go to Georgia to seek work, telephoned Brown in July and arranged to visit him at his home, which he did that evening. In the ensuing conversation , Brown now told Sheffield that since he had a grievance against him he certainly would not think it would be "too smart" to recommend Sheffield , and he would not do so as long as Sheffield had a grievance against him. To this Sheffield replied as follows: I told him I felt like that I had a grievance or I wouldn't have filed it, and he told me, he told me we couldn't win, he said there wasn't no way we could win. He said that they just wasn't going to lose, and I told him, I said, "Well, I don't know, Mr. Brown," I said, "I guess we have to wait and see." On May 21, which was a week after he had filed his grievance but before it had been heard by Brown, Shafer went to Brown's office and told the latter that he intended to apply,for employment at the Robertson Transport Company located close to the East Texas plant, and asked Brown to help him get a job there. Brown told Shafer to see a Mr. Green at Robertson Transport, and that he would tell Green that Shafer was a good man who had made a mistake but learned his lesson and 717-6 72-64-voI 143-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "would make somebody a good hand ." Thus encouraged, Shafer went immediately from Brown's office to see Green, who told him that, although he had a stack of job applications , he would hire him as a truckdriver since Brown had sent him. Green had Shafer fill out a dependents form , and asked him to get a license to drive a truck, for which license Shafer made application the following day, May 22. Shafer paid $6 for the license. The day after obtaining the license Shafer reported to Green but was told by the latter that he did not need him . Shafer did not ask Green why because he felt that he knew why Green no longer needed him. Shafer went back to see Brown and told him what had happened , whereupon Brown told Shafer that he could not help the latter get a job while he was stabbing him in the back with a grievance . Shafer then declared to Brown that since he had to have work somewhere, he would drop his grievance-indeed he offered then and there to tear up his grievance and drop it in Brown 's wastepaper basket-and Brown thereupon told Shafer that he would try to get him a job at a powerplant at Snow- flake, Arizona, where an old friend of his was the superintendent . Brown also told Shafer that he would consider reemploying him at East Texas after a year or so had elapsed. Shafer obtained a job at Snowflake and worked there about 2 months before returning to Silsbee , Texas, in the latter part of July. Like Wilkerson and Shafer, Harding had a meeting with Brown prior to his grievance hearing. This meeting was set up by Rogers at Harding 's request, and Menius was present at the meeting , which occurred a few days after the filing of Harding's grievance. At the meeting Harding confessed that he had made a mistake in not crossing the picket line, and told Brown that he would like to get his job back. Brown replied , however, that 2 or 3 days' punishment was not enough for what Harding had done, but repeated the suggestion that Harding might reapply after the East Texas plant expansion had been completed . Brown also wrote down on a piece of paper the name of a mill where Harding might apply for employment. Sometime after this meeting but before the hearing of his grievance , which occurred on or before July 10, Harding applied for employment at an insurance company, and gave the name of Brown as his reference . Harding did not secure employment with the insurance company, and he testified that the reason given to him there was that East Texas had given him a bad recommendation . This matter was aired subsequently at Harding's grievance meeting but Brown denied that he was respon- sible for the bad recommendation . At this grievance meeting, Brown was rather vehement in turning down Harding's grievance. "He told me," Harding testified, referring to Brown, "that I didn 't have any grievance . That I had broken the con- tract. That I had filed applications for reemployment . That he had studied my references . He says my references weren't any damn good, that I wasn't any damn good, and he knew because he was my reference ." Thereupon Harding asked Brown whether he "was blackballed at the Company," and Harding testified that Brown replied that "no, that I wasn't blackballed at the Company . There's nobody had asked him or Mr. Menius for a reference on me. He said but he would be a damn fool to give a man a reference that was holding an ax over his head, and I better get me a job damn quick before-or he would blackball me out of the industry as long as I was holding a grievance ." Asked further whether Brown had said anything "about the cost to the Company," Harding replied : "Yes, sir, he said there was-he told me that he would blackball me as long as I had a grievance cost- ing the Company time and money , yes." Right after the grievance hearing, Hard- ing repaired, with several of the union officers or shop stewards who included Rogers and Lowe, to a cafe in Evadale, where , over coffee, they discussed the advisability of dropping Harding's grievance . Harding did most of the talking, and told the others that East Texas "had him between a rock and a hard place," since he could not go to work for a big company without revealing where he had last worked. The union officers told Harding that it was up to him to decide whether to drop his grievance , and Harding told Rogers to drop his grievance, which was done the following Friday. That Brown's efforts to induce various of the aggrieved employees to withdraw their grievances were not disapproved by the Respondent 's highest official is estab- lished by the testimony of Moore, who, after Brown had rejected his grievance, had a hearing before Buckley. After considerable discussion of the accusations against Moore because of his picket line activity, in the course of which Moore admitted that he had been confused in denying his presence on the picket line on May 12, Buckley told Moore that he could not win his grievance before a jury, and advised him to drop the matter if he ever "wanted to work for East Texas or any other big company." Thereupon Ruddick , one of the union representatives present, asked Buckley "what his answer would be" to Moore, and Buckley declared that he would give it to him in writing . After the hearing Moore was advised by several people EAST TEXAS PULP AND PAPER COMPANY 437 working at the mill to drop his grievance, and did so, because of his fear that if he could not get a recommendation from East Texas, he would be unable to find work elsewhere, especially in the papermill industry. D. Brown's attempts to secure withdrawal of the earlier charges The original charge, which was signed by Baugh, grew out of a meeting at his home, which took place about 2 weeks before the charge was filed. All the em- ployees named in the original charge-Baugh, Sheffield, the two Dickersons, and. Harding-were present at this meeting. Reeves was also present but, apparently„ Baugh overlooked him in preparing the original charge, and it is possible that Moore. may also have been present. Baugh, either prior to this meeting, or subsequent thereto, had also secured the consent, either directly or indirectly, of Wilkerson, Shafer, Moore, Stutts, and Reeves to the inclusion of their names in a charge against the Respondent. Baugh did not, however, have the consent of Cowart to the in- clusion of his name. Brown became aware, of course, of the filing of the original and first amended charge, both of which alleged that the Respondent had discriminated against the em- ployees named in the charges in violation of the Act. When the original charge was received by the Respondent, Brown asked Menius to discuss the charge with the Respondent's counsel, although Brown testified he was "not too concerned about it." Both Menius and Brown testified concerning what advice they had received but it was Menius who discussed the problem with the Respondent's counsel, and reported to Brown what the latter had said. Apparently, the Respondent's counsel told Menius that the charge appeared to be "completely unfounded," and that there was nothing to worry about. Menius relayed this to Biown, who, according to Menius, thereupon said that, in view of what the latter had been told, "he was not particularly concerned about it." Menius' testimony concerning Brown's reaction does not quite square with Brown's own testimony, which was, in substance, that, despite what Menius told him, he was worried. Thus, Brown testified: "I am not sure that he was telling the truth because I have been worried but he told me that you said we had nothing to worry about." The testimony of Menius and Brown is also not in total agreement as to what happened after the first amended charge was received by them. According to Menius, Brown was utterly amazed at the inclusion in the charge of the names of two or three of the employees who, he believed, had not authorized their names to be used, and he had therefore asked him (Menius) to contact the Respondent's counsel again in order to ascertain whether there would be anything wrong in con- tacting the men to determine whether they were aware that their names were in the charge. According to Menius, the Respondent's counsel told him, and he reported to Brown that, while it did not appear to make any difference, there was nothing illegal in making the contact. In his testimony, Menius did not identify the employees whom Brown had in mind but Brown not only did so but explained why he thought they had not authorized the charge. Brown explained that he thought that Reeves would not file a charge because he had gone "to quite a bit of trouble and expense in getting him a job" in Brunswick, Georgia, and that Shafer would not authorize the charge because he had been sincere in talking to him, and had even asked his help in getting him a job when he returned from Snowflake, Arizona. As for Harding, whose name had been in the original charge, Brown "just figured" he did not authorize it but did not really explain why. However, Brown's testimony does not quite agree with that of Menius either with respect to what he wanted Menius to ask the Respondent's counsel, or with respect to what the Respondent's counsel told Menius. According to Brown, he asked Menius to talk to the Respondent's counsel to ascertain whether it was permissible for someone else to put the names of Reeves, Shafer, and Harding on the charge, and Menius then reported to him that Respondent's counsel had told him that anyone had a right to put their names on the charge but that "if they did not want their names on there it would probably be a good idea for them to write in to the Board and tell them that they did not authorize it." [Emphasis supplied.] Having determined to contact Shafer and Harding, Brown took steps to locate them. Shafer had quit his job at Snowflake, Arizona, and returned to Silsbee in the latter part of July. He had then visited Brown at his home, and asked him to re- employ him at the East Texas plant but Brown had refused to do so, telling Shafer that not enough time had yet elapsed. Brown had suggested that Shafer might be able to secure employment at the Brown & Root Construction if he were willing to cross the picket line there but, despite the fact that Shafer had declared himself willing to cross "a peaceable picket line," he had been unable to secure employ- ment there. Shafer had then obtained a job as a burner with Southern Iron in 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port Arthur, where D. L. White, one of Brown's foremen, who had been told by Wayne Robinson that Brown was looking for Shafer, contacted the latter the night of August 22. White roused Shafer from bed and informed the latter that Brown wanted Shafer to call him . Consequently, at 8 a.m the next morning Shafer tele- phoned Brown from Port Arthur and, in this telephone conversation, Brown told Shafer that he had a NLRB "petition" with his name on it, and that he wanted to know whether Shafer had signed or put his name on the "petition." 13 Shafer re- plied that, while he had not directly authorized his name to be put on the "petition," he may have led someone to believe that he had done so . Brown then told Shafer that he did not believe him to be the kind of a man who would sign his name to a "petition" like that. Shafer, who was telephoning Brown on his job, declared that he had to get back to work, and Brown suggested that he called him again in about a week. However, the following evening, Wayne Robinson came to Shafer's house and asked the latter whether he was interested in dropping his name from the "petition." Shafer told Robinson that he was interested in doing so , but that he did not know exactly how to go about it. Robinson then suggested that Shafer go to see Brown at 7 o'clock that night at his home. Shafer did so, and the preliminary conversation between them was pretty much along the same line as in the prior telephone conversation, except that Brown confided to Shafer that the Company's attorney had told them that "they" could contact any of the men included "in that group that they wanted to salvage," and that he was approaching Shafer since Ilse had dropped his grievance. Brown then declared that if Shafer took his name bff the petition, he would give him "a kiln job or better" but that he would have to wait "until all this blowed over," and if what he was telling Shafer "went any further," he would say that "it was a damn lie." Brown also explained that Shafer would have to wait before being reemployed because he had not been punished enough for the wrong he had done, and declared to Shafer that if any of the em- ployees were reinstated as the result of NLRB proceedings, the Company would go on firing them , no matter what it would cost, since such expenditures could be deducted from the income tax, and that the employees so reinstated would be "dead ducks," since "big companies work together ." Shafer intimated that he would not want to work for the Company under such conditions but agreed nevertheless to drop his name from the petition. Brown thereupon wrote down on a white piece of paper the name and official address of Robert S. Breaux , the field examiner of the Board in the Regional Office at Houston , Texas, and on another piece of paper wrote down what Shafer could say in his letter, which was as follows: My name was used in the case without my knowledge or permission. I do not agree with the charges against the co . I have no complaint against the co. I want my name dropped from the petition against the co. Shafer agreed to the proposed language except insofar as it implied that he had not authorized anyone to put his name on the "petition," and told Brown that he would write a letter but that he "didn't want to get anybody in trouble," whereupon Brown told Shafer that their attorney had assured him that the letter would not be publicized. Brown diminished the force of this assurance, however, by adding: "Well, you know how attorneys are, they will tell you one thing and do something else." The busi- ness phase of the meeting between Brown and Shafer being over, Brown proceeded to express his feelings about Ike Baugh, and to read Shafer a lecture on the impor- tance of cooperating with his Union. Brown confided to Shafer that Ike Baugh had been begging him for a job but he declared to Shafer: "I wouldn't hire that communist son of a bitch under no circumstances ... Ike Baugh is nothing but an agitator." Moreover , Brown proceeded to declare that there would be no other union in the East Texas plant than the Pulp and Sulphite Union, and, that if an- other union attempted to come in he would hire strikebreakers, as had been done in the case of another company in Elizabeth , Louisiana. Before parting from Shafer, Brown asked him how he could get hold of Harding, and Shafer told Brown that Harding was "somewhere around Kirbyville " Again Brown instructed Wayne Robinson to get in touch with Harding. The two men met in front of the City Cafe in Kirbyville, and had coffee there. They talked first about how "things were going at the mill," and Robinson told Harding- "They are doing pretty good now but after we lost you and Shafer they were in a heck of a mess but we worked it out and now the mud is as white as Santa Claus' beard " 14 This led Harding to remark: "Old Shafer was the best kiln operator lA Brown regularly referred to the charges as "petitions " 14 Robinson was referring to the lime mud in the caustic room where it was burned in the kiln, and, apparently, as a result turned white EAST TEXAS PULP AND PAPER COMPANY 439 East Texas ever had." Robinson expressed his agreement with this opinion, and then proceeded to the accomplishment of his mission. Robinson asked Harding: "Did you drop your grievance?" Harding replied: "Yes, sir, I did." Robinson asked further: "Did you drop it with the NLRB? Did you write them a letter?" Harding replied: "No, sir, I didn't," and Robinson then inquired whether he in- tended to drop it, whereupon Harding declared that "when I dropped my grievance at Ray Brown's level that I figured I dropped everything, I mean, I quit." Robinson then went on to explain to Harding that to drop his name from the NLRB "peti- tion" he would have to write a letter. Harding asked for the NLRB address, and Robinson told Harding he would have to get it from Brown and call him. Robinson made the telephone call about 4:30 in the afternoon of that same day but suggested that Harding come to Brown's house at 7 p.m. that night to discuss the matter. Harding appeared, therefore, at Brown's home at the appointed time. After some preliminary conversation, Harding came to the point of the meeting by remarking to Brown: "Mr. Brown, Mr. Robinson said there was some matter that I had, things I had to do to clear you," but Brown replied to this presumptuous suggestion: "Not to clear me, but to clear you." [Emphasis supplied.] The conversation up to this point had occurred at the side of Brown's house but the latter now took Harding into the house and introduced him to his wife. After she had left, Brown remarked to Harding: "Off the record, Wayne Robinson asked me last week why that I couldn't-we couldn't rehire you and Shafer, and I told him that I couldn't even consider it at this time while these grievances were going on. The other people would think I was going soft and that I was going to give them all their jobs back." Brown then asked Harding whether he would write a letter to the NLRB, and whether he had authorized Ike Baugh to sign his name to the charge. Harding had to confess in all fairness to Ike Baugh that he had been present at the latter's home when the "petition" was discussed, and that he had not told Baugh not to put his name on it. This led Brown to declare in general terms that Ike Baugh had signed all the names to the petition without any authority whatsoever, and that when "one boy" discovered that his name was on the "petition," he threatened "to kill the s o.b. [referring to Ike Baugh]." Brown for some reason that is not clear, unless it was the mention of this "boy," went on to tell Harding a story about the proprietor of a small grocery store in Evadale who had a son working at the East Texas plant, and whom the Building Trades Council had threatened to run out of business if his son crossed the picket line. Brown explained that he had met this threat by encouraging the East Texas employees to trade at this grocery store, with the result that its proprietor was in better shape than ever. Brown also told Harding about a boy for whom he had obtained a job but whose name was, neverthe- less, on the "petition." Brown confided to Harding that he had called this boy's employer and told him about it, and his employer had asked Brown, "Do you want me to fire that man?" but Brown had replied in the negative. As in the case of Shafer, Brown also told Harding in the course of his conversation with him, that he would keep on firing any employees who might be reinstated as a result of Board proceedings. In one respect at least Brown was better prepared for his interview with Harding than with Shafer. He had had the name and address of the field examiner in the Regional Office typed on a 3- by 5-inches white index card, and in the course of his interview with Harding he had handed it to the latter. Immediately after leav- ing Brown's house, Harding went to see Shafer, and took the white index card along with him. Shafer and Harding compared notes on their respective interviews with Brown, and Shafer showed Harding a letter which he had had his wife write on August 26 and in which he had requested that his name be removed from the "petition" against East Texas, since he had no complaint against the Company. However, Shafer had not yet actually mailed the letter, and he was, therefore, able to show it to Harding, who, on the reverse side of the white index card which Brown had given him prepared a rough draft of his own to be sent to the field ex- aminer in the Regional Office 15 After Harding left, Shafer mailed his letter to the Regional Office where it was received on August 31. Harding delayed mailing his letter to the Regional Office for a day or two, and, although it is dated August 30, it was not actually received in the Regional Office until September 3. 15 Shafer's wife had actually written and addressed the letter in green ink, and when Harding wrote his draft on the reverse side of the index card, he used, apparently, the same green ink. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Credibility resolutions In recounting the words and deeds of the Respondent's executives, I have rejected their testimony to the extent that it is inconsistent with the testimony of the other witnesses . There are numerous reasons for doing so, quite apart from demeanor. (1) Even assuming that all the witnesses were testifying with equal veracity and in accordance with their best recollections, the testimony of those witnesses who were present at a great many of the interviews or meetings would tend to be less reliable than the testimony of those witnesses who attended only a few. The discharged employees had only two or three meetings with either Brown or Buckley or both. Rogers, the president of the Union, who testified as a witness for the Respondent attended a considerable number of the grievance meetings 16 but they were few in comparison with the meetings attended by Menius and Brown. John Lowe, one of the shop stewards, who was also a member of the grievance committee, attended only six of the grievance meetings .17 The recollections of Rogers and Lowe were, thus, less likely to be fallible than those of Menius and Brown. The latter were present at so many meetings and interviews that it is difficult to understand how without notes (which they did not have when testifying) they could remember what was said at any particular meeting. They had meetings or interviews not only with the employees who are listed in the complaint but with a considerable number of others. Menius estimated the number of grievance meetings attended by him at 25 or 30, and added: "Those days were filled with meetings and some of them were grievance meetings and some of them were, of course, other meetings." He conceded also that "there were so many of them it's difficult to recall sometimes whether something was said at one level or at the other." Brown also made it plain that he was bewildered by the great number of meetings he had attended, and he sometimes confessed that he could not be sure whether he had said something at one meeting rather than another. He, too, exclaimed at one point in his testi- mony: "I had so many meetings, I can't recall everything that was said." This was indeed an understatement, for he sometimes could not recall what actually was said, and he sometimes confused discussions that must have taken place at grievance meetings with discussions at May 14 meetings. The latter were generally very brief; and the remarks exchanged between Brown and the employees could hardly be said to be very extensive. In addition, it is probable also that an individ- ual employee, whose employment depended on what Brown or Menius or Buckley told him, would be more likely to remember what was said to him alone than that the Respondent's executives, who had to talk to a great many employees, and whose own security was not at stake, would remember what they said to an individual employee. (2) In addition to manifesting defects of memory, Brown undermined his credi- bility by the wholly improbable nature of some of his testimony, by some of the contradictions and explanations which he indulged or offered, and by the character which he displayed in his dealings with some of the discharged employees. The best illustration of Brown's unreliability as a witness is his testimony with respect to Cowart. Brown's picture of Cowart was completely shattered on cross- examination. With mounting embarrassment, he was forced to admissions that plainly indicate that Cowart was actually a desirable employee. In fact, Cowart had received no less than 14 suggestion awards; in November 1960, he had become the recipient of a letter from Buckley, the Respondent's president, congratulating him on his "record of achievement" during his past 5 years of service with the Company; and, as late as October 1961, he had been the leadoff subject in a column of per- sonals in the company monthly magazine, "The Eastexan." Moreover, Brown was forced to admit that he knew that Cowart had joined Alcoholics Anonymous, and, although he would not admit that Cowart's attendance record over the past 31 years had been as good as that of any emnloyee, he did grudgingly concede that "he has been on the job good recently." The record does not make clear precisely what the basis was of Brown's animus toward Cowart about whom he was, appar- ently, more reticent than about Baugh. It is ironic, moreover, that Brown should have had so little use for Cowart, although he had actually crossed the picket line on the first day of the work stoppage, and failed to report on the second day for a reason that had no connection with the existence of the picket line and although 16 Rogers testified specifically , however, only with respect to the meetings at which Moore, Harding , and Wilkerson were present. Speaking of the grievance meetings in gen- eral , Rogers, at one point in his testimony , exclaimed * "There were so many of them " 17 Lowe attended the meetings only of Baugh , Emile Lucille Dickerson , Sheffield, Hard- ing, Cowart, and Moore EAST TEXAS PULP AND PAPER COMPANY 441 he was the only one of the employees mentioned in the complaint who did not par- ticipate in the filing of the charges against the Respondent. In my judgment, Brown also undermined his credibility by stubbornly refusing to admit that when he interviewed the discharged employees on May 14, he told any of them that he might consider them for reemployment when the expansion of the plant facilities was completed . He did admit that he made such a statement to three of them-Harding, Shafer, and Sheffield-but he contended that this oc- curred on other occasions and under different circumstances . However, in insisting that he never made such statements to any of the others he was not only denying the testimony of a small cloud of witnesses but he was also denying testimony that was inherently credible. Most of the employees whom he was discharging were old employees, having had 4, 5, and even 6 years of service at the East Texas plant, any many of them had worked under him personally . While he suspected some of them of improper picket line activity, none of them had yet filed grievance against him and, even judging by his own testimony , the interviews were not unfriendly. Surely, the slightest degree of humanity would suggest that he hold out a hope, however vague, that the employees being interviewed might be reconsidered for reemployment a year or two later when the new plant facilities had been completed. Moreover, by holding out this hope he was not really committing himself to re- employing any of them . He was not promising to reemploy them but only to consider them for reemployment in the future . When the simple logic of this situation was put to him during cross-examination , and he was asked to explain why he would not tell the discharged employees whom he was interviewing on May 14 that they might be reconsidered for reemployment, he could only exclaim petulantly: "Because I knew they would not be because I had too much trouble from them in the last few years. I was too glad to get rid of them." But, in offering this explana- tion, he only contradicted the testimony which he himself had already given about these very same employees. He had already testified that he told Emlie Lucille Dickerson that "frankly, I think you are a pretty good worker, I have no complaints on your work. I have complaints on what you did on the picket line .... He had already also testified that when Moore asked him for a recommendation, he told the latter: "I will tell them that you are a good cutter operator, if you will learn to cooperate with your company and your union;" and that when Wilkerson pleaded that he wanted to clear his name he had told the latter: "Well , I don't know that there is anything so bad against your name." Moreover, in the formal letters rejecting the grievances of the employees who had filed them , he had mentioned only the poor work record of Cowart as a reason for not rehiring him. (3) On the question whether Brown attempted to secure withdrawal of the grievances of some of the employees, Rogers, who appeared as the Respondent's first witness , supported the testimony of Harding and Wilkerson by testifying that he had heard Brown at meetings with these employees tell each of them that he could not recommend him as long as his grievance was pending Rogers also supported the testimony of Shafer by testifying that Shafer called him on his way to Snowflake and, after explaining that Brown had told him that he would not recommend him unless he dropped his grievance , asked him (Rogers ) to drop his grievance so that be could get a recommendation for a job. Menius, who followed Rogers to the stand , when questioned concerning the statements made by Brown to Wilkerson and Harding on the subject of dropping their grievances, behaved in a rather puzzling, if not incomprehensible, manner. In relation to Wilkerson, he finally answered the question by stating : "I don't recall anything about that." But a moment later, when asked the same question in which was now included the comparison of the grievance to a knife in Brown 's back, he declared flatly- "This wasn't said ." In relation to Harding, he followed virtually the same procedure in reverse a few minutes later; be first answered "No," and then : "No, he didn't, not that I recall." Thus, Menius contradicted both himself and the Respondent's previous witness, Rogers, whose testimony had presumably been given in his pres- ence.18 It is no wonder then, that when Brown finally took the stand the following day, be abandoned Menius altogether. Brown admitted that be had told Sheffield that he could not recommend him as long as he had a grievance against the Company, and that he had indeed made the same statement to several of the employees. But, having made this confession , Brown proceeded to enter a plea in avoidance based upon the contention that he had also explained to the employees that the reason why he could not give them a recommendation while they had grievances pending against him was that the recommendations might be used against him if the griev- IsAlthough Menius was at the hearing every day, I have no way of knowing at what times he may have been absent temporarily from the hearing room. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ances were taken to arbitration. But, it is denied by all the employees to whom he declined to give recommendations because they had grievances pending that Brown gave any such explanation, and I credit their denial. It is true that Rogers, whose testimony I credit in general, did testify that Brown stated at one of the grievance meetings that if he recommended the employee "he could come back and use it against him in arbitration" but he could not remember at whose grievance meeting Brown made this statement. Thus even if Rogers' recollection of this in- cident is correct, which I am inclined to doubt, Rogers' testimony does not establish that the possibility of arbitration was mentioned to Wilkerson, Sheffield, Shafer, or Harding. In any event, it seems to me rather unlikely that Brown would have vouchsafed any further explanation to the aggrieved employees; the pending griev- ances were the obvious explanation, and I find it hard to believe that Brown would also have revealed the motive behind the explanation, or given, in effect, a double explanation. If Brown were thinking in strategic terms, he would be more likely to reveal his thought in a more direct and vivid manner. Indeed, Sheffield's testi- mony that Brown told him that it would not be "too smart" for him to recommend his as long as he had a grievance against him indicates the furtherest that Brown would probably have gone in revealing the state of his mind. The mention of the possibility of arbitration seems, moreover, one of those legalistic afterthoughts wholly alien to Brown's ordinary modes of thought. He made it pretty plain at the hearing that he both distrusted lawyers and had little, if any, understanding of legal prob- lems. The similes employed by him in relation to the grievances-his comparison of them to a knife in his back or an ax over his head-indicate pretty clearly that he thought of the grievances as personal attacks upon himself.ie (4) As for Moore's testimony that Buckley advised him to drop his grievance if he ever wanted to work for East Texas or any other big company, it stands wholly unrefuted, since Buckley himself was not called as a witness by the Respondent, and there appears to be no good reason for discrediting Moore. To be sure, both Menius and Brown, who were both present at the grievance meeting with Buckley, denied that the president of the Respondent made the remark attributed to him but denial by proxy can be accepted only when the proxies are themselves credible witnesses. Counsel for the Respondent argues, to he sure, that both Rogers and Lowe support Menius and Brown in their denials that Buckley warned Moore to drop his grievance but this argument rests upon a wholly inadequate basis. Rogers did not give the positive testimony attributed to him when he was asked whether Buckley had told Moore that he could not win his grievance before a jury and advised Moore to drop it. Rogers' reply was, "I don't remember whether he said that or not I don't remember that being said." This hardly adds up to a clear and positive denial. As for Lowe, his testimony with respect to Buckley's meeting with Moore was as follows: Q. Did you attend Mr. Buckley's meeting with Mr. Moore? A. Yes, I did. Q. At that meeting did Mr. Buckley threaten Mr. Moore in any way? A. I do not recall him threatening him. [Emphasis supplied.] It is apparent that Lowe's testimony is also not very positive or clear and its effect is weakened, moreover, by the vagueness of the term "threat" in relation to the subject matter of the question. Counsel for the Respondent chose not to define what he meant by a threat in the context of his question. (5) The record in this case is full of talk about blackballing and the threat of blackballing is implicit in the refusal to recommend employees as long as they were processing grievances. Brown told both Shafer and Harding that he was not 10 Counsel for the General Counsel argues that Brown's fear of arbitration was in fact wholly unfounded because the third paragraph of section 10 of the Respondent's labor contract in fact gave him carte blanche to discharge employees who had engaged in a strike. I do not accept this argument because it overlooks the last sentence of this provi- sion which barred discrimination in applying discipline for strike action, which was the real basis of the grievances. The Respondent had good reason to be concerned about the effect of this provision abut I doubt that Brown personally understood its significance. Of course, the thought may possibly have crossed Brown's mind that favorable recommenda- tions for employment might embarrass him if the grievances went to arbitration But he would have been very foolish to have given utterance to such thoughts, for they would hardly have reflected a very high ethical standard. Brown would in effect be saying that he could not afford to tell the truth about an employee if it was against his interests. If so, he could well have resolved not to tell the truth as a witness for the same reason. EAST TEXAS PULP AND PAPER COMPANY 443 blackballing them or anybody else . But these were empty declarations , for the evidence indicates that he actually did blackball Shafer and Harding. The blackballing of Shafer was particularly reprehensible, since it occurred after Brown had, seemingly, agreed to help Shafer to obtain employment . There is no good reason to doubt the testimony of Shafer that when he went back to Brown after being rejected by Green , Brown told him that he could not help him get a job while he was stabbing him in the back with a grievance. This amounted to a confession on Brown's part that he had blackballed Shafer. The most damaging witness against Brown was none other than Shafer , who was indeed the General Counsel's star witness, for the testimony of Shafer, so far as the blackballing is concerned , does not rest merely upon his unsupported word. Shafer actually pro- duced the application which he had made for a license to drive a truck , and for which he had paid $6. It would take strong evidence , which the Respondent did not produce , to rebut the presumption that Shafer , who was unemployed , and who was desperately looking for a job, would not pay out $6 to get a license if he had not been hired by Green. Despite the denials of Brown and Menius, I am also convinced that Brown black- balled Harding with the insurance company. Although Harding's testimony that Brown declared to him at the grievance meeting that he would blackball him out of the industry as long as he held a grievance against him followed Harding 's rejection by the insurance company, it is nevertheless significant in indicating what Brown's intentions towards Harding were . It is no less significant that Brown declared to Harding at the grievance meeting that he was Harding's reference. This is con- sistent only with the assumption that Brown would have to be consulted about any employment for Harding. Moreover, this is not merely a logical deduction. Hard- ing testified that when his rejection by the insurance company was being discussed, Brown had told him that "all requests for references were being referred to him." Furthermore, the inference that Brown blackballed Harding does not rest merely upon the unsupported testimony of Harding himself. It is buttressed also by one of the Respondent's own witnesses , Rogers, who testified that when the blackballing of Harding at the insurance company was discussed at the grievance meetings, Menius commented: "If they contact for reference, they have to contact myself or Mr. Brown," and he says "We have no record of it." But Menius would hardly have made a record of the blackballing of an ex-employee. (6) Having obtained the advice of counsel, having sought out Shafer and Hard- ing through others, having invited them to his home in order to get their names withdrawn from the charges, having drafted in his own handwriting the very letter of withdrawal, Brown did not deny, of course, any of these acts or efforts. However, he did attempt to represent his enterprise as praiseworthy, and he did attempt to deny everything of an incriminating nature that passed between him and Shafer, or be- tween him and Harding in his separate interviews with each of them. I must reject these explanations or denials. Brown attempted to create the impression that in approaching Shafer and Harding his aim was only to straighten out the record. What exactly he meant by this, he never made clear himself. If he meant by this that he was not at all concerned about the filing of the charges-as Menius understood him to say-he certainly went to a great deal of trouble for nothing. Brown was, of course, concerned about the charges, as any employer would be, even if the charges were unfounded, but this is not to say that he also did not have personal reasons for seeking the withdrawal of the charges. He considered that he had tried to help Shafer and Harding but, now, they were showing, apparently, base ingratitude by joining in the filing of charges against him. He still seemed to think so even though he had been advised by counsel that anyone could file a charge, and put anyone's name on it. Either he did not understand this legal point, or it made no difference to him He simply had to assure himself that those to whom he had extended a helping hand had actually nothing to do with the charges 20 If they had participated in this step, he was resolved that it would be so much the worse for them. This is really what Brown meant by straightening out the record. I deduce this from Shafer's testimony con- cerning the advice Brown had received that he could legitimately engage in a salvage operation and from the rebuke administered to Harding by Brown when the former suggested clearing him. Counsel for the Respondent relies, apparently, on Brown's denials of all the incriminating statements attributed to him by either Shafer or Harding in the inter- 20 Actually, Brown had also made a half-hearted attempt to contact Reeves whom he had helped to get a jab but Reeves was , apparently, too far away-in Brunswick, Georgia-and the attempt was abandoned. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD views in which he asked them to withdraw from the charges against the Respondent. I do not, however, credit these denials. The most incredible of Brown's denials was that he had not confided to Shafer that Ike Baugh had begged him for his job but that he would not rehire the "Communist s.o.b." Considering the state of Brown's feelings about Baugh, he would hardly say anything very flattering about him, and it would be almost unnatural if he did not give expression to his feelings whenever the opportunity offered itself. The occasion for his interview with Shafer was such that it was virtually inevitable that Baugh would be discussed, since Baugh had been instrumental in getting the charges filed, and the charges were the subject under discussion. Furthermore, sometime before making the denial in relation to Baugh, Brown had himself testified that in his interview with Baugh on May 14 Baugh had begged him to give him his job back. There was thus an actual basis for the confidence Finally, at least two of Brown's denials were not very firm and entirely unqualified, as appears from the following testimony which he gave Q. Did you talk to him [Shafer] at all about the Building Trades Union or the fact that the Company was going to keep the Pulp, Sulphite Union in the plant at that meeting? A. I don't think I did because I had mentioned that we had a good union and we got along pretty good, and we-they had good officers and we would like to keep the union we had, and we couldn't live with the Metal Trades Union on account of their strikes, but at this meeting, no, I didn't mention anything like that. Q. Did you say anything to Mr. Shafer at this meeting or did you say any- thing to any employees about if another union was going to come in you would hire strikebreakers and do just like they had in Elizabeth, Louisiana? A. No, I did not . . . Q. . . Let me ask you this, Mr. Brown, at this meeting you had with Mr. Shafer in August did you say anything to him that the company attorney had assured the company that his getting his name off the charge wouldn't be publicized? A. No, uh-uh, I never mentioned that, no. Q. Did you talk to him anything about lawyers at all? A. I certainly didn't, no. Q. Well, I am very serious, did you say that you knew how attorneys were, they would tell you one thing and do something else? A. I could have said that, but I don't believe 1 did. Q. All right, sir. TRIAL EXAMINER: You mean you believe that? The WITNESS: Yes, sir. In addition to relying on Brown's denials, counsel for the Respondent appears to argue that Shafer's testimony that Brown told him that if he took his name off the "petition" he would give him a kiln job or better when "all this blowed over," and Harding's testimony that Brown told him that he had discussed the rehiring of Shafer and himself the previous week but that he had told Robinson that he could not even consider it "while these grievances were going on" is inherently in- credible because such statements were not required by the logic of the situation. The basis for this contention appears to be that as soon as Shafer and Harding were contacted they at once expressed their willingness to drop the charges, and hence that Brown had no reason for offering them any inducment. But, while the premise of this argument seems to be correct, I cannot accept the conclusion that has been drawn from it. It is true that both Shafer and Harding expressed willingness to withdraw from the charges as soon as they were contacted, and neither of them made it a condition of his withdrawal that he be restored to his job 21 As I under- stand the testimony of Shafer and Brown, they did not even claim that they made any such condition. Shafer's testimony is rather that Brown voluntarily told him that he would be reemployed later, and Harding's is only that Brown told him about his discussion with Robinson concerning the reemployment of Shafer and himself. But there is nothing inherently improbable or incredible in their testimony. It is a datum of common experience that men often do what they are not required to do, and that rewards may be conferred upon persons who performed acts without any expectation of reward. Even though Shafer and Harding had asked for no rewards, Brown may well have felt that they deserved some consideration and told ziHarding, indeed, so testified explicitly when he was asked: "At anytime during this meeting with Mr Brown did you ask Mr Brown for your job back?" Harding's answer was: "No, sir, I didn't." EAST TEXAS PULP AND PAPER COMPANY 445 them so. There was, moreover, the danger that if no prospects were held out to them, that they might change their minds, and renege on their promises to mail the letters of withdrawal. It is possible also that Brown's conscience may have bothered him a little. Shafer and Harding happened to be the two employees whom Brown had blackballed into withdrawing their grievances. They were in a special category of employees who now perhaps deserved to have their periods of punishment shortened somewhat. I could well believe that Brown would not promise to reemploy Baugh even if he agreed to drop the charges he had filed. But I have no difficulty in believing that Brown would express a willingness to re- employ Shafer and Harding especially since that willingness was not very immediate. Incidentally, it is also significant that the Respondent never called Wayne Robinson as a witness to deny that he and Brown had discussed the reemployment of Shafer and Harding during the period Brown was attempting to get the charges withdrawn. In summary, then, the evidence is, so far as its disputed aspects are concerned, that Brown did tell the employees whom he interviewed on May 14 that they might be reconsidered for employment when the plant expansion facilities were completed; that either Brown or Buckley told various of the employees that they could not expect recommendations as long as they persisted in processing their grievances without explaining his fear of arbitration; that as a result Shafer, Harding, and Moore actually withdrew their grievances; that Brown actually blackballed Shafer and Harding when they were attempting to secure employment elsewhere; and that Brown then induced Shafer and Harding to withdraw from the charges against the Respondent, and volunteered the assurance that they would be reemployed at a later date when he was no longer embarrassed by the pending grievances, and also threatened to discharge again any former employee who might be reinstated as a result of the filing of the charges. F. Concluding findings I am of the view that the declarations of Brown or Buckley to Wilkerson, Sheffield, Shafer, Harding, and Moore that they could not expect recommendations for other employment as long as they continued to process their grievances against the Re- spondent were violative of Section 8 (a)( 1 ) of the Act. I assume that the Respond- ent's management officials were privileged to give their honest opinions of their former employees to other employers who might be interested in employing them, and who made inquiry concerning them, and that they were equally privileged to refuse to give any opinion concerning their former employees. But their privileges did not extend to putting pressure on such former employees to withdraw pending grievances if they desired to secure recommendations to other employment. These grievances had been filed pursuant to a collective-bargaining agreement between the Respondent and the union of which the aggrieved employees were members,22 and in filing and processing of the grievances they had the active support of the union's officers. The employees were engaged, therefore, in a form of concerted union activity which was protected against "interference," as well as against "re- straint and coercion" as these terms are employed in Section 8(a)(1) of the Act. The Respondent was interfering, moreover, in a form of concerted activity which is recognized in Section 9(a) of the Act as so basic that it is preserved to individual employees or groups of employees even when a recognized bargaining agent exists. The Board has specifically held that even an individual employee who asserts a claim under a collective-bargaining agreement is engaged in a form of concerted activity, since such activity is "but an extension of the concerted activity giving rise to the agreement," 23 and the employees in the present case who filed grievances were also engaged in implementing the collective-bargaining agreement with their em- ployer. If it is important that employees who are engaged in the concerted presenta- tion of grievances be protected against discharge for such activities, as has been repeatedly held,24 it is no less important that they be protected against threats 22 Sheffield and Shafer were, indeed, particularly prominent in the union, Sheffield being a member of the grievance committee and Shafer being a shop steward at the time of his discharge. In addition, Sheffield had also been recording secretary of Local 801 in 1958, 1959, and 1960 23 See Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros Construction Company, 139 NLRB 1516 24 See, for Instance, N.L R B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing Company, 146 F. 2d 773, 774 (C.A. 5) ; Salt River Valley Water Users' Association v. N.L.R B , 206 F. 2d 325 , 328 (C.A. 9) ; N L.R.B. v. Smith Victory Corporation, 190 F. 2d 56. 57 (CA. 2). 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of denial of employment by any employers because they have filed grievances against their discharge. It is well settled that no actual interference with employees' rights need be shown in order to establish a violation of Section 8(a)(1) of the Act. The test is simply whether it can be reasonably said that the conduct of the employer tends to interfere with the free exercise of the rights of the employees under the Act 25 However, in the present case, the pressure put upon the employees to withdraw their grievances was successful in the cases of Shafer, Harding, and Moore, who withdrew their grievances. Moreover, the record also shows that prior to putting pressure on Shafer and Harding to withdraw their grievances, Brown had actually blackballed them in their efforts to secure employment, and these were acts which were even more grievous violations of Section 8 (a) (1) of the Act. I am aware that it is conceded that the five employees who were processing their grievances had been guilty of engaging in an unprotected concerted activity in refusing to cross the picket line. But this did not render unprotected and unlaw- ful all further concerted activity on their part. They did not become caput lupinum. For refusing to cross the picket line they had been duly punished by being discharged In processing their grievances, however, they were exercising a right that was assured to them by the same agreement which, presumably, justified their discharge. The filing of their grievances certainly raised questions "involving the application or inter- pretation of this Agreement," and they were entitled to process their grievances with- out interference, restraint, or coercion on the part of the Respondent. It is equally clear that Brown's conduct in attempting to secure withdrawal of the charge against the Respondent also violated Section 8 (a) (1) of the Act. The Board has held that there is inherent in the statutory rights of employees under the Act the right to seek their vindication in Board proceedings 28 and there can be little doubt that Brown's maneuvers in approaching Shafer and Harding, and in inducing them to disassociate themselves from the charges were calculated to inhibit and undermine the investigation of the charge on their merits, and must be judged as parts of Brown's overall program of eliminating all complaints. Brown had already Teduced Shafer and Harding to a condition of dependence and an expectation of rewards if they were complaisant enough to fall in with his desires, and the mere fact that they accepted with alacrity his further proposals that they withdraw from the charges does not render them any the less acts of interference. They did not need to be conditioned on rewards, and hence the fact that the rewards were, so to speak, ex post facto is wholly immaterial. Furthermore, since in the interviews in which Brown sought to secure the withdrawal of the charges, he also indulged in overt manifestations of union animus and threats of discharge of any employees who might be reinstated as a result of the filing of the charges, he demonstrated only too plainly that his objective was not a disinterested investigation of the charges. I am of the opinion, however, that the record presents an insufficient basis for find- ing a violation of Section 8(a)(4) of the Act. The difficulty is not that the indi- viduals who are the subject of the complaint had been discharged by the Respondent, and were therefore, no longer its employees. It is now well settled that Section 8(a) (4) of the Act also covers applicants for employment 27 The difficulty is rather that none of the 11 employees who are the subjects of the charges ever put Brown to the test of decision after the charges were filed, and it is, therefore, not possible to say that there existed a relation of cause and effect between the filing of the charges and the denial of employment to them. As the court said in F. W. Poe Manufac- turing Company v. N.L.R.B, 119 F. 2d 45, 48 (C.A. 4), a case involving a charge of violation of Section 8(a)(4) of the Act, in which the employee concerned failed to make application after the filing of the charge: "The National Labor Relations Act is not concerned with hypotheses, but with realities; it does not seek to prohibit evil intent but unfair labor practices . . . ." 28 as N.L R.B v. Illinois Tool Works, 153 F 2d 811, 814 (C.A 7) : N L R.B. v. Wilbur H. Ford. d/b/a Ford Bros., 170 F. 2d 735, 738 (C.A. 6) ; Time-O-Matic, Inc. v. N L.R B., 264 F 2d 96, 99 (C A 7) : Blue Flash Express, Inc, 109 NLRB 591, 593 20 See, for Instance, Better Monkey Grip Company, 115 NLRB 1170, and Hilton Credit Corporation, 137 NLRB 56 27 See John Hancock Mutual Life Insurance Company v N.L R B., 191 F 2d 483, 485 (C.A.DC.) ; N.L.R B. v Syracuse Stamping Company, 208 F. 2d 77, 80 (C.A. 2) ; N L.R B. v. Lamar Creamery Company, 246 F 2d 8, 10 (C A. 5). 28 Although the court declined to enforce the Board's decision In this case (27 NLRB 1257), the Board quoted the pronouncement with approval in the subsequent case of Electrical Construction Corporation, 108 NLRB 340. I assume, therefore , that it adopted the court' s views. EAST TEXAS PULP AND PAPER COMPANY 447 The record shows that Sheffield actually withdrew the application which he had filed on May 13. The other discharged employees never withdrew the applications which they had filed the same day but these applications were all rejected by Brown the following day. These rejections were not based , however, on the filing of the charges, which did not occur until 3 months later, but on the prior employment record of the applicants as viewed by Brown and upon his beliefs with respect to their activities on the picket line. Between the date of the rejection of the applica- tions and the date of the filing of the original charge, Brown did develop an animosity towards many of the discharged employees but this was attributable to their filing of grievances against him. In a technical sense, a grievance is not the same, cer- tainly, as an application but even if, straining the concept , it were construed as an equivalent, Section 8 (a) (4) of the Act only makes it an unfair labor practice to discriminate against an employee , or an applicant for employment, because he has filed charges under the Act. While discrimination by reason of the filing of a griev- ance may be a violation of Section 8(a)(1) and (3) of the Act, it is not a violation of Section 8(a)(4) of the Act, and, in any event, the complaint does not allege a violation of Section 8(a) (3) of the Act. Apart from Shafer and Harding, moreover, none of the discharged employees who are the subject of the Section 8 (a)(4) charges had any contact whatsoever with Brown after the filing of the charges . While, as the court also conceded in the Poe case, there is little doubt that Brown would not have welcomed employment applica- tions from any of the discharged employees, and that if they had been made such applications he would have rejected them out of hand , in the absence of actual appli- cations, this must remain in the realm of speculation. Counsel for the Respondent argues strenuously that in the period following the discharges Brown had jobs available for the discharged employees but that it is inconceivable that Brown would ever have reemployed any of them because of his feelings towards them. This may well have been true up to the period of the filing of the charges but this is not a consideration that is in itself decisive . If, after the filing of the charges, there had been applications made by the discharged employees to Brown and, in rejecting them, he had also been influenced by the filing of the charges, the fact that he had other preexisting reasons for rejecting the applicants would be immaterial . The general rule applicable in discrimination cases under Section 8 (a)(3) of the Act must logically be applied also to cases arising under Section 8 (a) (4) of the Act. On the other hand , I am unable to understand the tremendous stress put by counsel for the General Counsel upon the fact that Brown , in interviewing the discharged employees on May 14, told them that he might reconsider their reemployment when the plant expansion program was completed, and the hiring of a considerable number of additional employees became necessary. It seems to me that , while this condi. tional promise which Brown made to the discharged employees has some significance, its significance lies in showing how Brown's attitude toward the discharged employees altered after their grievances had been filed . The conditional promise, which in any- event could not have been executed for almost another 2 years, could not form the basis of a finding of violation of Section 8 (a) (4) of the Act. The cases of Shafer and Harding differ somewhat, of course , from those of the other discharged employees . They did have direct contact with Brown after the filing of the charges, and while they were not applicants for employment by the Respondent in a technical sense, it can certainly be said that Brown was aware what they were interested in reemployment at East Texas . The basic difficulty in their cases is that Section 8(a)(4) of the Act is aimed at denials of employment rather than at promises of employment, and Shafer and Harding were promised employ- ment, although the fulfillment of the promise was to be delayed . If this delay were attributable to the filing of the charges, some basis, might exist for concluding that Section 8(a) (4) of the Act had been violated . But it is perfectly clear from Harding's own testimony that the reason for the delay was Brown 's fear that he would be embarrassed in the handling of the grievances of the other employees. In any event, even if a technical violation of Section 8(a) (4) of the Act could be said to be made out, I do not believe that it would tend to effectuate the policies of the Act to invoke the Board's remedial powers to order the reinstatement of Shafer and Harding, with or without backpay, since they consented to assist Brown in his attempt to undermine and defeat the Board's proceedings. At the close of the case , counsel for the Respondent made motions to dismiss the various allegations of the complaint . Decision on these motions were reserved but they are now disposed of in accordance with the findings and conclusions of this report. Thus, the motions to dismiss the allegations of the complaint charging violations of Section 8(a) (1) of the Act are denied , while the motion to dismiss the 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations of the complaint charging violation of Section 8(a) (4) of the Act is granted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY I shall recommend that the Respondent be required to cease and desist from the commission of the specific unfair labor practices in which it has engaged. But, since these practices have been extensive, including threats of interference in the organiza- tional activities of the employees and threats to discharge employees who might be reinstated as a result of Board proceedings, I shall, despite the fact that the Respond- ent has contractual relations with labor organizations, also recommend that it be required to cease and desist from infringing on any of the rights of the employees guaranteed by Section 7 of the Act. The nature of the Respondent's unfair labor practices is such that affirmative relief is also required. Since Shafer, Harding, and Moore withdrew their grievances only as a result of the unlawful pressure of the Respondent's executives, I shall also recom- mend that the Respondent be directed to inform these three employees that if they so desire, it will reinstate their grievances and consider these grievances on the merits, notwithstanding any time limitations contained in its collective-bargaining agreement with the union, and if these employees indicate a desire to have their grievances rein- stated, consider such grievances on the merits. In my opinion, there is no adequate basis for recommending the reinstatement with or without backpay, of any of the 11 employees included in the complaint. While any person has the right to seek em- ployment from any employer at any time, in view of the circumstances of the present case, I shall, however, specifically recommend that if any of the 11 employees in- cluded in the complaint, apply to the Respondent for reemployment after the plant expansion program has been completed, that their applications be considered without reference to whether they have ever filed grievances with the Respondent, or have been named in charges filed against the Respondent under the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations wtihin the meaning of Section 2(5) of the Act. 3. By threatening some of its former employees with the withholding of recom- mendations for employment elsewhere or with refusing to consider them for re- employment at its own plant unless they ceased to process grievances filed by them with the Respondent; by blackballing two of its former employees who had filed such grievances; by inducing two of its former employees to withdraw from charges filed against the Respondent by the Board by promising to reemploy them after the grievances against the Respondent had been disposed of, and by threatening to dis- charge any employees who might be reinstated as the result of Board proceeding; and by threatening to interfere in the organizational rights of its employees, the Respond- ent violated Section 8(a)(1) of the Act. 4. By its conduct in relation to the 11 employees included in the complaint, the Respondent has not violated Section 8(a)(4) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case , it is recommended that the Respondent, East Texas Pulp and Paper Company, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening any of its former employees with the withholding of recom- mendations for employment elsewhere, or with refusal to consider them for employ- ment at its own plant unless they cease to process grievances filed by them with the Respondent. (b) Blackballing any of its former employees who have filed grievances with the Respondent. EAST TEXAS PULP AND PAPER COMPANY 449 (c) Interfering with Board proceedings by inducing the withdrawal of charges filed against it by promising to reemploy discharged employees after grievances against the Respondent had been disposed of, or by threatening to discharge former employees who may be reinstated as a result of Board proceedings. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Consider on the merits, notwithstanding any time limitations contained in its collective-bargaining agreement with the union, the grievances filed with it by Shafer, Harding, and Moore, if any of these discharged employees indicate a desire to have their grievances reinstated. (b) Consider for reemployment, when its plant expansion program has been com- pleted, any of the 11 discharged employees included in the complaint without refer- ence to-their previous filing of grievances, or participation in the filing of charges against the Respondent under the Act, provided that they apply for reemployment. (c) Post at its plant in Evadale, Texas, copies of the attached notice marked "Appendix." 29 Copies of said notice, to be furnished to the Respondent by the Regional Director for the Twenty-third Region, shall after being signed by the president of the Respondent and by its plant manager, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the copies of the said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.30 It is further recommended that, unless within 20 days from the receipt of this Intermediate Report, the Respondent notifies the said Regional Director that it will comply with the foregoing Recommended Order, the Board issue an order requiring the Respondent to take the aforesaid action. 21 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the notice will be further amended by the sub- stitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." 31 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT threaten any of our former employees with the withholding of recommendations for employment elsewhere, or threaten not to consider them for reemployment at our own plant unless they cease to process grievances against us. WE WILL NOT blackball any of our former employees who have filed griev- ances against us. WE WILL NOT interfere with Board proceedings by inducing the withdrawal of charges filed against us by promising to reemploy discharged employees after grievances against us had been disposed of, or by threatening to discharge former employees who might be reinstated as a result of Board proceedings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the AFL-CIO, or any other labor organization of our employees, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid of protection, or to refrain from any and all such activities. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL consider on the merits, notwithstanding any time limitations con- tained in our collective -bargaining agreement with the union, the grievances filed with us by our former employees, Harold E. Shafer, Bobby Charles Harding, and Ray F. Moore, if any of them indicate a desire to have their grievances reinstated. WE WILL consider for reemployment , when our plant expansion program has been completed, any of our former employees who were discharged after the picketing of our plant on May 11 and 12, 1962, without reference to their previous filing of grievances or participation in the filing of charges against us under the National Labor Relations Act, provided that such former employees apply for reemployment. EAST TEXAS PULP AND PAPER COMPANY, Employer. Dated- ------------------ By------------------------------------------- (R. M. BUCKLEY, President) ------------------------------------------- (RAY BROWN, Plant Manager) 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 Twenty-third Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No. Capitol 8-0611 , Extension 296, if they have any question concerning this notice or compliance with its provisions. Harry Pollins, d/b/a Harry's Television Sales and Service and Local Union 1430, International Brotherhood of Electrical `Yorkers, AFL-CIO. Case No. 92-CA-1412. June 28, 1963 DECISION AND ORDER On April 30, 1963, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices, and recom- mending that it cease. and desist therefrom and take certain affirm- ative action, as set forth in the attached Intermediate Report. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to'a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' We agree with the Trial Examiner that the Respondent violated Section 8(a) (5) and (1 ) of the Act by refusing to recognize the Union on and after October 31, 1962. In so finding, however, we rely upon the unlawful conduct engaged in by the Respondent after October 31 in addition to the earlier events relied upon by the Trial Examiner. 143 NLRB No. 51.