Hard-Lowe Chemical Co.

HARD-LOWE CHEMICAL COMPANY 933 Hard-Lowe Chemical Company and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case No. 9d3-CA-1490. July 30, 1963 DECISION AND ORDER On April 30, 1963, Trial Examiner Fannie M. Boyls issued her Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations. ORDER The Board adopts the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed September 14, 1962, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, a complaint was issued on October 26, 1962. The complaint, as later amended, alleged that Respondent, Hard-Lowe Chemical Company, discriminatorily laid off eight of its employees in August 1962, unlawfully interrogated an employee about his union membership or activities, promised and granted a wage increase to induce an employee to refrain from supporting the Union, and threatened reprisals against employees if they selected the Union to represent them, thereby violating Section 8(a)(3) and (1) of the National Labor Relations Act. Respondent's answer, as amended, denies the commission of any of the unfair labor practices alleged. A hearing was held before Trial Examiner Fannie M. Boyls at Houston, Texas, on January 16, 17, and 18, 1963. All parties waived oral argument at the conclusion of the hearing. Counsel for Respondent thereafter filed a brief, which I have care- fully considered. The General Counsel filed none. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 143 NLRB No. 98. 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Texas corporation, maintains its principal office and plant in Hous- ton, Texas, where t is engaged in the production of catalytic chemicals. During the 12 months preceding the issuance of the complaint, a representative period, Respond- ent caused to be manufactured , sold, and distributed at its plant in Houston , products valued in excess of $500,000, of which more than $50,000 represented sales to, companies or firms which in turn sold and shipped products valued in excess of $50,000 to points outside the State of Texas. Respondent has stipulated, and I find, that at all times material herein , Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The layoffs of Ortiz and Ryan in B and C units Although in July 1962, there had been some talk among employees about joining a union, no definitive step was taken toward this end until after Respondent posted a new work schedule at its plant about August 10,1 requiring employees to work in B unit on some days and in C unit on other days, and on 12-hour shifts, instead of- their usual 8-hour shifts. This new schedule reduced the amount of overtime some of the employees had theretofore been working. The six employees of B and C units met on August 13 to discuss the new work- schedule and other working conditions about which they were dissatisfied. They- decided to, and did, obtain membership cards from the Union and arrange for a meeting with Ralph L. Lowe, Respondent' s owner-manager , on August 14. The meeting with Lowe occurred at about 8 or 8:30 a.m. on August 14. Sigifredo, Ortiz, a B unit operator, acted as spokesman for the employees but C unit operator Dan Ryan also expressed himself at the meeting. According to the credited testi- mony of Ortiz and Ryan, corroborated in this respect by the testimony of Marvin Pehl, Lowe told the employees, in response to their request for a wage increase, that he could not grant any increase at that time but would meet with them again in 30 days and at that time consider the possibility of a 5-cent increase.2 He promised to correct a problem involving fumes about which the employees were complaining and did later correct it. In the meantime, on August 13, Ortiz, accompanied by B unit operator, Marvin Pehl, went to the Union's office and obtained membership cards which they and Ryan later distributed to employees at the plant. Ortiz took these signed cards to Union Representative Aylor on the morning of August 15 and the latter notified Respondent's plant superintendent, Monroe Sharp, by telephone that the Union was the bargaining representative of a majority of Respondent's employees and desired a bargaining conference Sharp expressed a doubt as to the Union's majority status and the Union soon thereafter filed a representation petition with the Board.3 On August 17 Ortiz and Ryan, the least senior in their categroy of employment, were laid off and were informed by Superintendent Sharp that the layoffs were neces- sitated by a lack of work. On August 29, 30, and 31, six A unit employees were laid off, and those who were given any explanation at all were told that there was insufficient work for them. These employees, too, were selected for layoff on a seniority basis.4 I All dates, unless otherwise noted, refer to the year 1962 2I am convinced that Lowe was mistaken in his testimony that he granted the employees a 10-cent-an-hour increase on August 14 Pehl testified that Lowe announced on August 20 that he was giving Pehl a 5-cent increase and maintenance man Clark, a 10-cent increase Truckdriver Ernest moreover, testified that 3 or 4 days before the September 18 election, he and other,truckdrivers received a 10-cent increase. 3 Following a consent election held on September 18, the Union was selected by a vote of 16 to 3 as the employees' bargaining representative. 4 Ortiz and Ryan placed the date of their layoff as August 15 and most of the other employees placed the date of their layoffs as about August 24 However, I am convinced from the testimony of Respondent's representatives and the payroll cards and canceled checks that the correct dates air as set forth above. HARD-LOWE CHEMICAL COMPANY 935 The record establishes that economic conditions unquestionably warranted some changes or curtailments at the plant in August. The revision of work schedules for B and C unit employees, which precipitated the employees' action in seeking out the Union to represent them, was only the first step taken by Respondent to adjust its operations to some of these adverse economic conditions. In C unit, where four men were employed in June and July, Respondent operated two boilers. One of these, the C-1 boiler, was used only for steaming distilled chlori- nated solvents. Diamond Alkali, Respondent's sole customer for this product, notified Respondent on July 17 that it was discontinuing for an indefinite period the purchase of this product. It did not in fact resume its purchases until September 10. The C-1 boiler was accordingly completely shut down about July 18 or 19. The other boiler in the C unit, called the C-2 boiler, was used to process a crude oil byproduct of styrene tars, which was processed in B unit. This boiler was also capable of processing styrene tars and other products. The B unit, which normally employed four employees, processed only styrene tars. Prior to August, Respondent had been receiving about 200.000 or 225,000 gallons of styrene tars a month from Monsanto Chemical Company, about 100,000 gallons from Dow Chemical Company, and 8,000 or 12,000 gallons from Sinclair-Koppers. In early August, because Respondent's storage tanks were full and it was making few sales of this product, Respondent decided to discontinue for an indefinite period its .orders for large quantities of this product. A letter from Dow Chemical Company, dated August 13, confirms an understanding that all pickups of styrene tars from that company would be suspended for an indefinite period. Respondent contends, and I find, that the shutdown of C-1 boiler and the dis- ,continuance of orders for 100,000 gallons a month of styrene tars necessitated adjust- ments in its work force. It met this problem first, by rearranging its work schedules and requiring employees to take their vacations, some prematurely, during this period, and finally, by laying off two of its least senior employees, Ortiz and Ryan, on August 17. I accordingly find that these layoffs were not discriminatorily motivated .5 Nor do I find any basis for concluding that Respondent unlawfully discriminated against Ortiz or Ryan in failing to recall them. One C unit employee, I. D. McCauley-senior to both Ortiz and Ryan-quit on August 9 rather than accept a transfer to a job paying substantially less than his regular job. He was rehired about November 16 after what Superintendent Sharp called a 120-day leave of absence. In the early part of November, Sharp called Ortiz and offered him work while another employee was in the hospital, but Ortiz, who in the meantime had obtained a regular job elsewhere, declined the offer when Respondent could not assure him of continued employment after the sick employee returned to work. Ryan had not been recalled prior to the hearing but no new employee had been hired to take his place. B. The layoffs of six A unit employees In A unit, also, Respondent was facing serious economic problems during the period here pertinent. A unit was the source of 65 to 75 percent of Respondent's income. It was engaged exclusively in the regeneration of cuprous chloride catalyst for Mon- santo Chemical Company. On June 18, Respondent received a letter from Monsanto confirming a previous statement that it expected its schedules for the regeneration of cuprous chloride catalyst for the last half of 1962 to drop from 580,000 or 600,000 pounds a month to about 350,000 or 400,000 pounds, and adding that it expected a major plant shut- down during that period. By letter dated August 24, Monsanto advised Respondent that it planned to maintain a level of 350,000 pounds of catalyst to be regenerated in September and during that month expected to have its fall shutdown of its AN plant, from which the cuprous chloride is received. By letter dated September 11, Mon- santo informed Respondent of revised plans to shut down its AN plant for 12 days starting October 14 and increasing its schedule for receipt of regenerated catalyst to 325,000 or 350,000 pounds for the remainder of September. Finally, on Septem- ber 26, Monsanto wrote Respondent that it wanted no deliveries of catalyst between October 12 and 29, and wanted only 250,000 pounds of regenerated catalyst for the month of October. In September, also, Monsanto discontinued orders for bonus copper which up to that time Respondent had been adding to the cuprous chloride. 5 There is undenied testimony by Marvin Pehl, a B unit operator, that about August 22, when he went to the office for hit paycheck, Superintendent Sharp told him "that Fred Ortiz and Dan Ryan had done all the talking at the meeting and now they were gone." The record does not show the occasion for such a remark and, assuming that it was made, I find it equivocal and insufficient, in view of the undisputed evidence set forth above, to support an inference of discriminatory motivation. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's records show that cuprous chloride catalyst in the following amounts was regenerated from May through October: May -------------------------------------------------597,791 pounds. June-------------------------------------------------496,668 pounds. July -------------------------------------------------499,603 pounds. August-----------------------------------------------389,267 pounds. September --------------------------------------------377,286 pounds. October ----------------------------------------------219,493 pounds. Respondent contends, and I have no reason to doubt, that as a result of these sub- stantial losses of business in A unit, it became necessary to lay off some of its A unit employees. King Gray, Ezekiel Nickerson, and Robert E. Lee were laid off on August 29; William Guy and Israel Delgado were laid off on August 30; and Jesus Moreno was laid off on August 31. All of these employees had signed union cards on August 13, 14, or 15, but since the layoffs were effected on a seniority basis, I see no basis for concluding that their union membership had anything to do with their selection. Respondent's records show that upon most occasions in June, July, and August prior to the layoffs, normally 12 employees, and upon 3 occasions 11 employees, were working in A unit an average of about 42 hours a week.6 For the week ending September 2, during the latter part of which the six layoffs occurred, the average num- ber of hours worked by each employee was 35. During the next 3 weeks the remain- ing six employees worked an average of 51, 61, and 63 hours. Two of the laid-off employees, William Guy and King Gray, were recalled to work on September 28 and for the next 2 weeks the eight employees averaged 48 and 47 hours. The General Counsel apparently contends that the longer hours worked subsequent to the layoffs indicate no necessity for the layoffs and that the layoffs must therefore be considered as discriminatorily motivated. Aside from the fact, however, that President Lowe testified that he attempts, when possible, to furnish his employees with 48 to 56 hours of work a week, in accordance with a request made by them 6 or 7 years ago, I am not persuaded that Respondent had in mind anything other than legitimate business considerations in cutting its A unit work force in half. In effecting these layoffs in late August, Respondent was obviously acting on the basis of estimates and planned schedules furnished by Monsanto on and before August 24. It is reasonable to assume that the substantial increase in hours of work following the layoffs was at- tributable principally to Monsanto's revised plans which were not communicated to Respondent until September 11 and thereafter. I find that Respondent did not violate the statute in connection with the layoff of, or failure to recall, any of the six A unit employees. C. The alleged interference, restraint, or coercion As already indicated, after the Union, on August 15 informed Respondent that it represented a majority of Respondent's employees and filed a representation petition with the Board's Regional Office, a consent election was held on September 18. The complaint alleges that during the preelection period, Respondent engaged in conduct which interfered with, restrained, and coerced the employees in the exercise of their organizational rights. The evidence relating to these allegations is set forth below. 1. The interrogation According to the undenied and credited testimony of employee Ernest Franks, on the afternoon that Ortiz was laid off (which Franks believed to be August 15 but which I have found to be August 17) and shortly after Ortiz had informed him of the layoff, President Lowe approached Franks at his place of work and asked him whether he had heard anything about the Union? Franks replied that he had not, for he had just returned from his 5-day leave. Lowe remarked that he "didn't have anything against any union" and added that he thought it was Ortiz who had started the Union. Lowe also said that the type of business operated by Respondent produces a lot of smoke and that he might have trouble with the Union about the smoke. I find that Respondent's interrogation of Franks about the Union, occurring so soon after Ortiz' layoff and during a conversation in which Lowe expressed the belief that For the weeks ending June 3 and August 26, the 12 were working an average of 49 and 48 hours 7 Although not specifically alleged in the complaint, the record shows that Respondent, in connection with other unfair labor practices alleged, also interrogated employee Robinett about August 20 as to whether he knew anything about the Union and in Septem- ber. shortly before the election, asked employee Ernest how he felt about the Union HARD-LOWE CHEMICAL COMPANY 937 Ortiz had initiated the union movement, and in the context of other unfair labor practices found herein, constituted a veiled suggestion that reprisals might be visited upon union protagonists, and was violative of Section 8(a)(1) of the statute. Blue Flash Express, Inc., 109 NLRB 591; Rubber Fabricators, Inc., 142 NLRB 62. 2. Promises of financial assistance to employees for educational purposes contingent on defeat of Union On or about August 20, President Lowe came into the laboratory where employee Cecil Robinett was working and, according to Robinett's undenied and credited testi- mony, asked whether he knew anything about the Union being organized at the plant. Robinett replied that he knew nothing about it because he had been absent in a hospital for the last 10 or 12 days. Lowe explained that he understood most of the men had signed union cards and added that he wanted to be free to run the plant as he liked and preferred that the plant not be unionized. Robinett took this occa- sion to tell Lowe that he was interested in taking some courses in chemistry at Texas Southern University and to request that he be transferred from day to night work so that he might attend classes during the day. Lowe expressed approval of the idea and said that he might be able to work something out along those lines. Later that day Lowe summoned Robinett to his office and told him, in the presence of Superintendent Sharp, that a schedule had been worked out under which Robinett could work three 12-hour shifts at night and make up another 4 hours during the week. According to Robinett, Lowe also said that he would pay part of Robinett's tuition, adding, however, that "if the men voted for the Union, he wouldn't be able to pay for [his] tuition." Robinett further testified: And he also asked that I get together with Ernest Franks as we were two of the oldest employees working for the Company, and for we two to get together and talk with the rest of the men at the plant and try and use our influence to get them to vote against the Union; and also to tell the men about the many dif- ferent advantages that we would receive providing that he was able to run the plant like he wanted to run it. He told us to put special emphasis on the Company's profit-sharing plan and other benefits that he had to offer the men. Another employee, Johnny Smith, similarly testified that during the period of the Union's organizational drive, on an occasion when he and another employee were summoned to Lowe's office and told about Respondent's profit-sharing plan, Lowe brought up the subject of helping employees get an education. According to Smith, Lowe suggested that if Smith or any of the other employees would like to go to school to learn something which might improve their value to Respondent, he would be glad to pay half the expenes. Lowe added, however, that if the Union came in, he could not pay such expenses.8 Lowe did not testify with respect to his conversation with Smith. He did testify, however, that he told Cecil Robinett that he wanted to go on record as assuring any employee who wanted to go to school to improve his capacity to help the Company that the Company would participate in some part with his schooling"; and that if Robinett would furnish Lowe with a schedule of school hours and costs, Lowe would authorize a change of Robinett's working hours to enable him to go to school He testified that he did not tell Robinett "that if the Union got in [he] wouldn't be able to do this," adding: The Union was not involved with Cecil's schooling then or now or anyone else's schooling in the plant. I did touch on the future on this particular thing The benefits I wanted those employees to enjoy out there is in every instance based on the economics of the company. There is a possibility that in the future that we will not be able to continue such a program. This program of helping the employees is strictly based on the economics, and in the 90-day period that I had before the election was too early to predict subsequent years in which I probably would be dealing with Mr. Aylor and the Union. I did say I would do the best I could with the program. As far as I was concerned, he could depend on me helping him with it now. 8 Smith was hopelessly confused with respect to dates When it was pointed out to him on cross-examination that in a statement given a Board agent on September 24, he had placed the date of his interview with Lowe as August 20 (the date alleged in the com- plant), he testified that August 20 could have been the correct date I am convinced from the content of the interview and Smith's testimony as it whole that the conversation occurred during the preelection period and find it unnoeescarv to fix a precise date 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From Lowe's own testimony, it is apparent that the Union was discussed in connection with Lowe's offer to have the Company assist some of the employees in furthering their education along certain lines. Both Robinett and Smith impressed me as sincere and honest employees . Regardless of the precise language used by Lowe, I am convinced, and find, that his conversations with Robinett and Smith were substantially as related by them, and that he did tell them that the Company's ,continued ability to assist employees financially with their education was contingent upon the Union being rejected as the employees' bargaining representative.9 Re- spondent thereby interfered with, restrained , and coerced its employees in the exercise of their organizational rights, in violation of Section 8 (a) (1) of the Act. 3. The wage increase given James Ernest According to the undenied testimony of James Ernest, a truckdriver, 3 or 4 days before the election, Superintendent Sharp called him aside and asked him how he felt about the Union. Ernest replied, "Comme ci, comme ca." Sharp then stated that, according to his information, Ernest was an ardent union supporter. Ernest responded, "You cant' blame a man for wanting to better himself." Sharp then laughed and said, "Well, I like you. You are a good old boy. I tell you what I am going to do . . . I have given Rutledge and these other drivers a raise up to $1.70 I am going to give you the same." Sharp then slapped Ernest on the shoulder and said, "Confidentially between you and I, I am trying to swing you over to our favor." Ernest thereafter received a 10-cent wage increase. Despite the fact that Sharp has not denied making the statements attributed to him by Ernest, Respondent, in its brief, labels Ernest's testimony as incredible. There is nothing inherently incredible in this testimony and Ernest stood up well under cross-examination. I find that Sharp made the statements related by Ernest and that Respondent thereby violated Section 8(a) (1) of the Act.10 4. President Lowe's statements in regard to Respondent's profit-sharing plan In connection with a profit-sharing plan which it set up in 1959, Respondent estab- lished a trust fund that year but withdrew it at a later date, then reestablished. it for the year 1961. Employees with at least 3 years' service at the end of a fiscal year ending September 30 were apparently eligible to participate in the plan. On September 17, the day before the election, President Lowe called a meeting of all the employees and discussed, among other things, the profit-sharing plan. He called upon a representative of the insurance company which was helping administer the plan to explain it to the employees and to read off to them the amounts which eligible employees had accumulated in the plan. Four employees testified to the effect that at this meeting Lowe made the statement that if the Union won the election, he would be unable to pay or set aside money for the profit-sharing plan because he would need the money with which to fight the Union or pay attorney's fees Lowe gave a quite different account of his speech. Credibility issues are presented. Marvin Pehl testified that after the insurance representative read off the amounts credited to those eligible for participation in the plan, Lowe told the employees that if the Union won the election on the following day, the employees would not get the money in the plan, adding that he would have to use this money to fight the Union. Cecil Robinett testified that during the September 17 meeting, Lowe told the employees that he was going to build them a first-class dining room and a first- class restroom "with shower facilities and everything" and told them how much he was going to set aside for the profit-sharing plan. Robinett further testified- "And he also did mention that now in case that the men at the plant voted for the Union, 9I do not interpret Robinett's testimony to mean, as Respondent asserts in its brief, that Lowe predicated his inability to rearrange work schedules to enable him to attend school upon a defeat of the Union He testified, rather, that it was the financial assistance which was to hinge upon the Union's success Moreover, I do not agree, as Respondent argues, that Smith's statement that Lowe "did not definitely pin his remarks down to my joining the Union or that of Clifton Gray" Is inconsistent with Smith's testimony that "if the Union came in," Respondent could not pay part of the educational expenses 10 See Medo Photo Supple' Corpoa ation v N.L R B., 321 U S 678; Exchange Parts Com- pany. 131 NLRB 806, entd. denied 304 F. 2d 308 (C.A 5), petition for certiorari filed October 18, 1962 [373 U.S. 931 certiorari granted May 27, 1963]. HARD-LOWE CHEMICAL COMPANY 939 that he would not be able to do that or other benefits he wouldn't be able to give it to them because he would have to set aside that money and use it to fight the Union with." According to Robmett, Lowe explained that he might have to fight the Union "in court." Johnny Smith told about two occasions when Lowe made statements regarding the profit-sharing plan. On the first occasion, about August 20 or at some time prior to the September 17 meeting, Lowe summoned Smith and another employee, Clifton Gray, to his office and, according to Smith , "he advised me that I had around seven to eight hundred dollars in the profit-sharing plan that had already been put in a bank some place in my name. He said that is money that the government takes care of and after that it's out of their hands." According to Smith, Lowe also said on that occasion "that if the Union should come in the plant, I probably wouldn't be able to get that money because he would have to use that money that I would have or some of the other fellows would have to fight the Union with , he would have to set that money aside." Smith further testified that at the meeting with all the employees later, Lowe said, "I am not mad. If you fellows want to join the Union . . . go ahead. I will see where I can profit from it. But if it does, I will have to take a lot of money I could use around the plant to fight the Union with." According to the testimony of Ernest Franks, Lowe told the assembled employees that if they "didn't go union," they would get the profit-sharing money-that it "would be paid off from 5 to 10 years from now"-but that if the Union were selected, he would have "to pay his lawyers with it " or "pay the Union with it." Lowe gave the following explanation of his statements to the employees on Septem- ber 17 about the profit-sharing plan. Shortly before the meeting , it had occurred to him that the employees might not want the trust fund he had created in connection with the plan and he asked Robinett how he felt about it. Robinett replied that he thought it was a good thing but that some of the employees preferred a little more money on paydays than a lot more money 5, 10, or 15 years later. Lowe then "called the meeting to explain the trust fund and to try to arrive at the answer to what was to be done with it." According to Lowe, he opened the meeting by telling the employees that he had not called the meeting to discuss the Union and he wanted each employee to vote "according to his conscience." He assured the employees that although he, personally, would feel disappointed if they selected the Union, this feeling would not affect his friendly relationship with the employees and that he had instructed his supervi- sors that no intimidation or persecution would be permitted . Lowe left it to the insurance company representative to explain the profit-sharing trust fund, to tell the old employees the dates when their interest would become vested and to name the newer employees who were becoming eligible at the end of the fiscal year, September 30. Lowe "personally did not discuss the trust fund very minutely." He discussed the solution of pollution and other problems. He "discussed money matters with the employees to let them know that the over-all picture of manage- ment was such that [it] would try to separate some of the funds and the profits of the company in the future, and that it would be divided with the employees." He also "discussed working conditions , the building of a new cafeteria , showers, some of the accomplishments that [the Company ] had made from the previous meeting, such as fumes and problems that were annoying to the employees , and discussed more or less an over-all plan for the future and some of the progress ... made in the past on this day." Lowe, while specifically denying that he had made any statement remotely touching on the theme that if the Union came in, he would have to use the profit -sharing plan or trust fund money to fight the Union, did not specifically deny that he had said the profit-sharing money could not be paid if the Union was selected. His testimony about what he did say to them regarding the profit-sharing plan was rather general and vague . Although he concededly called the meeting for the purpose of explaining the profit-sharing trust fund and trying "to arrive at the answer to what was to be done with it," he did not testify with respect to what answer he arrived at. From the tone of his speech , however-including his promise to build a cafeteria and a first-class restroom , with showers-it is apparent that Lowe's purpose in addressing the employees on the day before the election was to influence their vote by painting a rosy picture of their future without a union . I am convinced that his intention was to leave the employees with the impression that they would not receive the planned benefits he outlined to them, including profit-sharing benefits which might otherwise accrue to them in the future , if the Union was selected as their bargaining representative . This is a fair inference from the testimony of Robinett and Smith , whose sincerity as they testified I do not question. Their 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony is supported in material respects by that of Pehl and Franks." Although I do not think that Lowe meant to imply that money already paid into the trust fund would be withheld from those to whom it was already credited-for he had earlier explained to Smith that this money could not be touched by the Company-I am convinced, and find, that Lowe told the employees that if the Union won the election, he could not in the future set aside any more money for the profit-sharing trust fund. This conditioning of their receipt of benefits in the future upon their defeat of the Union at the polls was a clear violation of the Act. CONCLUSIONS OF LAW 1. By coercively interrogating an employee about the Union, by granting a wage increase for the purpose of inducing an employee to refrain from supporting the Union, and by conditioning its willingness to pay part of its employees' educational expenses, and to pay money into a profit-sharing fund, upon its employees' rejection of the Union at the polls, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. 2 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. A preponderance of the evidence does not support allegations of the complaint that Respondent violated Section 8(a)(3) of the Act or that it violated Section 8 (a) (1) except in the respects above found. THE REMEDY It having been found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act, my Recommended Order will require Respondent to cease and desist therefrom and take the conventional type of affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following: RECOMMENDED ORDER Hard-Lowe Chemical Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about union activities or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (b) Granting a wage increase to any employee for the purpose of inducing him to refrain from supporting Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization. (c) Conditioning any assistance to employees in obtaining an education, or conditioning the payment of profit-sharing funds to its employees, upon a rejection of the Union as their bargaining representative. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the 11 In attacking the credibility of the four employees who testified about the September 17 meeting, Respondent, in its brief, makes the assertion that statements of the four given to a Board agent prior to the hearing "contain no assertions of any comments by Mr Lowe even remotely similar to their testimony." None of the statements was introduced in evidence and the record does not support the broad charge made by Respondent. It shows that Pehi alleged in his statement that Lowe said at the meeting that Pehl would lose the $682 he had in the profit-sharing plan If the plant went union--a statement similar to and consistent with his testimony on the point. As to Robinett, the record merely shows that In none of his three statements did he say anything at all about the piofit- sharing plan or statements made by Lowe at the September 17 meeting With respect to Smith and Franks, the record does not show what, if anything, they may have said In their statements about Lowe' s remarks about the profit-sharing plan. None of these witnesses was shown to have made any previously inconsistent statements about Lowe's speech, and even if all their statements to the Board agent were silent on that subject, as Robinett's were, that fact would not warrant a finding that their tesimony was false. HARD-LOWE CHEMICAL COMPANY 941 purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post in its plant at Houston , Texas, copies of the attached notice marked "Appendix " 12 Copies of said notice to be furnished by the Regional Director for the Twenty-third Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the date of the receipt of this Intermediate Report what steps Respondent has taken to comply herewith.13 It is further recommended that the complaint be dismissed insofar as it alleges violations of Section 8(a)(3), and of Section 8(a)(l) of the Act, except as herein specifically found. 1= If this Recommended Order is adopted by the Boai d , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Couit of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals , Enforcing an Order" for the words "A Decision and Order " 13 If this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for the Twenty-third Region , in writing, within 10 days from the date of this Order, What steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify you that: WE WILL NOT interrogate coercively our employees concerning union activi- ties or sympathies. WE WILL NOT grant a wage increase to any employee for the purpose of in- ducing him to refrain from supporting Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization WE WILL NOT condition any assistance to employees in obtaining an education, or condition the payment of profit-sharing funds to our employees , upon a re- jection of union representation. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become, or remain or to refrain from becoming or remaining, members of the above-named nr any other labor organization. HARD-LOWE CHEMICAL COMPANY, Employer Dated- ------------------ By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Fed- eral Office Building, 515 Rusk Avenue, Houston , Texas, 77002, Telephone No. Capitol 8-0611 , Extension 271, if they have any question concerning this notice or compliance with its provisions.