U.S. Perlite Corp.

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER I recommend that each of the above-named strikers or former strikers , employees, ,or former employees, of the Respondent, be paid the amounts set forth opposite each name and that my determination herein constitute an adjudication that the Respond- ent be discharged from further liability for backpay upon written proof of payment made to the Regional Director for Region 23 in the amounts shown above in the total amount of $ 10,267.96, proof to be furnished according to the manner prescribed by the Regional Director. An adjudication now having been made of the entire amount of the Respondent's indebtedness, it is proper, and not inconsistent with the Order of the Board and the decree of the court , that the indebtedness bear interest at 6 per- cent per annum from the date of this adjudication until paid, and I so recommend. his Plumbing & Heating Co., 138 NLRB 716. U.S. Perlite Corp. and Richard E. Merrill . Case No. 13-CA-5989. September 16, 1964 DECISION AND ORDER On May 20, 1964, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the Act, and recommending that it cease and 'desist therefrom and take certain affirmative action, as set forth in the attached- Trial Examiner's Decision. Thereafter, the Respond- ent filed exceptions to the Trial Examiner's Decision. 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. [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the ' findings; conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as -amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that the Respondent, U.S. Perlite Corp., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' i The first Indented paragraph of the Appendix ( notice ) attached to the Trial Exam- iner's Decision is hereby deleted -- - The following paragraph shall ' be added as the third substantive paragraph of the Appendix: ' All our 'employees are free to become, remain , or refrain from becoming or remain- Ing, members of the Independent Workers Union of America , or any' other labor ,drgani`zation, except"toil a extent that right' may' be affected by an' agreement re- ,quirin'g membership in a labor organization as a condition of continued employment, as authorized In Section 8(a) (3) of the Act, as amended. 148 NLRB No. 111. U.S. PERLITE CORP. 1065 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Following a charge filed by Richard E. Merrill,' and a complaint and answer, this case came before Trial Examiner Laurence A. Knapp for hearing at Kankakee, Illinois, on February 13, 1964. At the hearing, I took under advisement Re- spondent's motion to dismiss the complaint for lack of proof, a motion disposed of by my findings and conclusions herein. Briefs filed with me by counsel for the parties have been fully considered. Upon the entire record, as corrected, and my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, is engaged at Momence, Illinois, in the manufacture and sale of acoustical tile. During the calendar year 1962 Respond- ent received at its Momence plant, from other enterprises located in Illinois, goods and materials valued in excess of $50,000 which the said other enterprises had, in turn, received directly from States other than Illinois. Respondent is, as its answer concedes, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 496, United Brotherhood of Carpenters and Joiners of America , AFL-CIO (herein called "Local 496" or "the Brotherhood"), and Independent Workers Union of America (herein called the "Independent"), is each a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES CHARGED Background Events Material to the Violations Charged Respondent was formed and began business in April 1961 in the small town of Momence. At no time since it began operations has it operated at a profit. It is a distinctly small enterprise; during the period with which this case deals it had about 31 production employees. Of this small employee complement, some 15 were members of the Merrill family, i.e., related by blood or marriage to Richard Mer- rill, the Charging Party, whose discharge figures prominently as an issue in this case. Among these are his father, mother, wife, three brothers, and a sister; and some in-laws and cousins. 'Dischargee Richard Merrill, his wife, his father, and his sister composed the General Counsel's witnesses concerning the happenings specifically alleged as un- fair labor practices in this case. Richard Merrill was the acknowledged leader of the Merrill family group of employees. Respondent's official in charge of production is Felix Janssen, vice president, who has direct and regular contact, on familiar terms, with the small group of produc- tion employees under his supervision. All unfair labor practices involved -in -the case are attributed to the conduct of Janssen. On November 5, 1962, following a ,consent election conducted by the Regional Director for .Region, 13, Local 496 was certified as the collective-bargaining repre- sentative selected by a majority of Respondent's employees. During the spring of 1963, Forrest Clatterbuck, business. manager of Local 496, had a number of meet- ings with Respondent's employees, at one of which an employees' bargaining com- mittee, consisting of three Merrills-Richard, his sister Norma, and his brother James-was selected. During this same period, there was a meeting between repre- sentatives of Local 496 and of , Respondent, preliminary to the onset of . actual bargaining. Thereafter representatives of Local 496 and of Respondent met for bargaining purposes on three or four occasions, the first of which took place about May 29, 1963, and the last sometime during July 1963.2 Neither the General Counsel nor Respondent sought to establish the full pic- ture of the negotiating activity between the parties during this bargaining period. What the record does show is that the participants, on behalf of the employees at the May 29th meeting, were Clatterbuck, a Mr. Welch, State representative of the 'The charge ,was filed on November 1, 1963, and received' by Respondent on Novem- ber 2, 1963. 2 All dates used herein refer to 1963 unless otherwise noted. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood, and the three Merrills composing the employees' bargaining com- mittee; that the Brotherhood officials sought, at this meeting, to obtain some sort of wage increases; and that the Respondent took the position that it was financially unable to grant wage increases and, upon request, submitted records or statements concerning its financial condition which the Brotherhood representatives examined. Following this meeting, drafts of contract proposals were exchanged between Re- spondent and the Brotherhood, and as is to be inferred from the further facts about to be stated, agreement was arrived at on a contract, save for wage provisions, by the time of or at a subsequent meeting to which I now turn. At a further meeting sometime in July, attended by representatives of Respondent and Messrs. Clatterbuck and Welch for the Brotherhood, Respondent's president made a wage proposal which embodied some, but minor wage improvements. That same day, following the meeting, Clatterbuck exhibited the wage proposal (General Counsel Exhibit No. 5) and 'the contract to Richard Merrill and his sister Norma, as members of the employees' bargaining committee. Clatterbuck informed Merill that the wage proposal was all that Respondent's president could offer and asked Merrill, and sister Norma in turn, if they would sign the contract with these wage provisions. Richard Merrill, obviously the dominant figure of the two, refused, on the ground that, after allowing for prospective Brotherhood dues, the employees would net little, if anything, more than they were then earning. His sister-then followed suit. In the course of these discussions, Clatterbuck told the Merrills that employment conditions could get worse at Respondent's plant and declared that the Brotherhood representa- tives had "certainly tried" (for, as I infer, the best wage provisions obtainable). With the Merrills not retreating from their refusal to approve the wage proposal, Clatterbuck left the contract and the proposed wage rates with brother and sister, and told them to be in touch with him if they should reconsider their position in the next few weeks. Subsequently, Richard Merrill advised Clatterbuck that "they" were not' going to sign, a message which Clatterbuck relayed to Respondent. Thereafter, there were no further bargaining negotiations or other dealings between Local 496 and Respondent, with Respondent in no way responsible for this result. On the entire record, it is abundantly apparent that the Local 496 representatives believed the wage proposals they submitted to the two Merrills were the best obtainable and that it was up to the employee representatives to accept them if there was to be a contract, and thus a more formalized representative relationship, between Local 496 and Respondent 3 In short, an impasse, no doubt accompanied by ill-feeling on both sides, developed between Local 496, as the certified representative of the employees, and (primarily) Richard Merrill as their informal spokesman. It is reasonable, on the entire record, to infer that Respondent was aware of this impasse and its basic cause, but since there is no reason to conclude that Local 496 would not have resumed active representa- tive functioning had the Merrills later decided to sign the contract, it cannot be said that Local 496 totally abandoned its certified status in July, as counsel for the Gen- .eral Counsel appears to contend 4 Obviously disgruntled by the outcome of the bargaining negotiations, in the ensu- ing period until his discharge, Richard Merrill repeatedly voiced his dissatisfaction with Respondent's wage scale to Vice President Janssen and, it may be reasonably 8 That this was Clatterbuck's conception of the situation is evidenced by a later event. In the latter part of October, following the discharge of Richard Merrill, Clatterbuck told Norma Merrill, in response to her inquiry whether he would take action in behalf of Richard, that he, meaning Local 496, would not intercede because, lacking a contract -with Respondent, he had "no jurisdiction" over "you people." - ' Counsel for the General Counsel emphasizes' testimony by Richard Merrill that after he and his sister had first rejected the wage proposal, Clatterbuck said "Okay, then I 'won't represent any of you people." No representative of Respondent was present during •Clatterbuck's conversation with the Merrilis on this occasion, and there is no proof that Respondent knew that any such statement was, in fact, made by Clatterbuck (Clatter- 'buck, himself a witness for the General Counsel, had testified and left the hearing at the time this testimony was given ) In the circumstances, I disregard this testimony entirely as evidence in any way material to the charges against Respondent. But if -I am in error in this regard, then, in the light of Clatterbuck's unchallenged testimony that he told the Merrills to be in touch with him in succeeding weeks if they -changed their minds, and doubts I entertain concerning the reliability of Richard Merrill's recollections concerning what other people said , I, in any case, find that the - true-purport of what Clatterbuck said was that further ' representative ,action by Local 496 was de- pendent upon acceptance of the contract by the Merrills. U.S. PERLITE CORP. 1067* -inferred from the record , including his membership on the employees' committee and his position of leadership among the large Merrill employee component , more broadly. From a variety of indications, I infer also that he gave similar voice to his dis- satisfaction with Local 496. In this connection, in late August he made contact with .a representative of the Independent and in the course of a general discussion about unions told this official that another union was needed in Respondent's plant. Because, I find, of such stirrings around the plant concerning the wage and repre- sentation matters, Foreman Anderson sought to hold a meeting between himself and the employees concerned . However, the employees he was in contact with ( not iden- tified but whom I infer included Richard and other Merrills ) insisted on meeting with Janssen . In consequence, Respondent determined to hold a meeting at which Respondent and the employees could air their respective complaints and views con- -cerning production and employment conditions . Accordingly, in preparation for the meeting, Janssen . made notations of the topics he proposed to bring up on a sheet of ,paper, a paper which he held in his hand during the meeting. The meeting, held on September 13, lasted about 2 hours. Apparently at the out- ,set, Janssen put to the employees a number of management complaints, such as the failure of the employees to keep the plant and equipment clean and tidy, the dis- appearance of tools, etc. He likewike made mention of a health plan the Company was looking into and described some of the plan's cost-bearing aspects. - At some point, Richard Merrill asked what about the possibility of wage increases. According to Janssen, he replied that the Company's financial conditions did not per- mit a wage increase at that time; that it was, willing to grant one as soon as the Com- pany could operate at a profit for a 2-month period; and that in the meantime, the Company would continue its established policy of raising the employees' wages by 5 cents per hour at 6-month intervals . Asked by an employee how the workers would know when Respondent had made a profit, Janssen described the amount of tile production per month necessary to operate at a profit, and offered also to show and explain to the employees, in the future, Respondent's profit and loss statements as prepared each month. What Janssen said as above-stated in regard to the wage increase query is supported by the testimony of Foreman Anderson and is not denied, in any specific particular, by the General Counsel's witnesses (Richard, Bernice, Norma, and Elmus Merrill ) concerning what happened at this meeting. Indeed, that Janssen pleaded inability to pay and referred both to Respondent 's established 5-cent raise pattern and to the amounts of higher production needed , is confirmed by testi- mony given by one or another of these witnesses. They also testified, however, that Janssen stated that Respondent could not grant a wage increase then because it had to go "by the contract" (meaning one between Respondent and the Brotherhood); and, expressly or by implication from their testi- mony, these witnesses indicated that Janssen portrayed "the contract" as providing for the 5-cent per hour increases every 6 months. Janssen denied making any such statements, producing a conflict in testimony which I resolve below. -- Some employee or employees also mentioned to Janssen a desire among the em- ployees for "another union." In' response, according to Janssen and Anderson, Janssen told the assembled employees that the Brotherhood was their bargaining .agent and that (in line with what he had been told by the Board agent at the time of the 1962 election ) they could not bring in another union until the certification year expired . In his testimony, Richard Merrill confirmed that Janssen said that the em- ployees could not have another union because they had one in the Brotherhood. There remains the testimony of Bernice and Norma Merrill, who, in reference to the wage increase question raised by the employees at the meeting , testified, respec- tively, that Janssen stated no increase could be granted because ( 1), so Bernice testi- fied, "the contract" was in effect for a year and the employees would have to "vote" the contract "out"; or (2), so Norma testified, Respondent had to go by "the contract because it was in effect that we did have a union and it was voted in." 1. The charge that at the September 13 meeting Respondent stated that there was in effect a collective-bargaining agreement between the Respondent and Local 496 In line with his general theory of the case (see section entitled "Comments on the Parties' Respective Theories of the Case," infra), counsel for the General Counsel contends that at the September meeting Janssen made the statement set forth in the beading above, in order to deter the employees from seeking other representation than Local 496. I find, however,• that the, alleged statement, was not,made. At the September meeting the employees addressed to Janssen two inquiries, one dealing with the prospect for wage increases, and the other regarding representation 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by another union. The evidence of Janssen and Anderson is to the effect, that of Richard Merrill indicates, and I find, that these queries were put and answered separately. Janssen's testimony as to the responses he made to each inquiry, in turn, and his denial that he made any reference to a contract in either instance, have been previ- ously described. His description of what he said on both topics is rational, and in re- gard to what he said concerning other representation is confirmed, in some essential particulars, by the testimony of Richard Merrill.5 As to the testimony of Bernice and Norma Merrill, who said Janssen, in mentioning the contract as a barrier to wage increases, identified it as something in effect for a year and with the employees hav- ing voted the Brotherhood in, I am satisfied that what these ladies did, no doubt out of misunderstanding or faulty memories, was to lump together separated portions of what Janssen had said in the course of a lengthy meeting, confuse a certification with a contract, and out of this brew distill an elided and fallacious version of his re- marks .6 Furthermore, it is most improbable that Janssen would have asserted or implied that a contract existed between Respondent and Local 496. The absence of such a contract was a fact so well known, and particularly to all the Merrill wit- nesses, as to permit no possible misstatement or misrepresentation on the subject. Indeed, the fact that no contract considered satisfactory (but still no contract) had been obtained was what, in essence, had given rise to .the two and interrelated forms of dissatisfaction which, in turn, stimulated the two corresponding inquiries of the employees at the meeting. In the circumstances, I reject the testimony of .the General Counsel's witnesses concerning Janssen's alleged references to "the contract" 7 and find that, in response to what were questions put to him on behalf of the employees, Janssen made the re- sponsive statements to which he testified. Accordingly, I find, contrary to the allega- tions tions of paragraph IX, subparagraph (b) of the complaint, that Janssen did not state' to Respondent's employees at the September 13 meeting that there was then in effect a collective-bargaining agreement between Respondent and Local 496 .8 2. The discharge of Richard Merrill Richard Merrill was hired in February and discharged on October 18, 1963. The testimony directly pertinent to the cause of his discharge is brief but in some respects conflicting. Janssen discharged Merrill at the end of the working day. Janssen testified that he did so because, following a brief disagreement between him and Merrill over the correctness of the amount of the weekly paycheck Janssen had given to Merrill, Merrill, in exasperation, drove a forklift truck into some packed boxes of finished tile. Conceding the paycheck dispute, Merrill denied having driven the truck into any boxes and testified that as a climax to the dispute he told Janssen, "We are 5I credit so much of Merrill's testimony as indicates that Janssen referred to "union talk" and said "we already have a union." I wholly discredit, for lack of any conceivable plausibility in the circumstances of this case, other portions of Merrill's testimony to the effect that Janssen said "we couldn't have a closed shop-a union shop because" the em- ployees were then, represented. No other witness attributed any "closed shop" or "union shop" references to Janssen and there is no suggestion that any such restrictive provi- sions had ever entered the employees' minds or been suggested to Respondent, on Septem- ber 13 or any other time. 6 Janssen testified without contradiction that the meeting consumed about 2 hours, a goodly portion of, which must have been devoted to the wage raise and "another union"' discussions . Yet each of the four Merrills , asked to describe what was said, managed to confine their recollections to two or three -sentences of testimony Such extremely com- pressed versions are inherently suspect of distortion. and confusion; as I find is true of the testimony of Bernice and Norma Merrill in this instance 7 Richard Merrill testified that Janssen had a copy of the contract in his hand during the meeting. I reject this testimony and credit Janssen's that the paper he held was the one containing the notes he had prepared for the meeting. 8It should further be noted that (while,I do not credit the General Counsel's evidence) even if it could be accepted it does.not ustain the contention in hip brief that Janssen' referred. to the contract to deter the employees from seeking other representation under, contract-bar principles. Each of the Merrills testified that Janssen referred to the con-, tract as the, or a, reason why Respondent could not raise wages, and not in response to the "another union" inquiry. Indeed, three of the four Merrills made no reference what- ever in their ,testimony to the inquiry about, and the resulting discussion of, the "other) union" matter. U.S. PERLITE''CORP. •-1069 going to get a union .in here to represent these people"; that Janssen said, "I will fire you"; and that he, Merrill said, "Okay, I'm fired." I find that Merrill did drive the forklift truck into the boxes of packaged tile and that Janssen discharged Merrill for this reason. Merrill had registered simi- lar complaints about his paycheck on earlier occasions and, while some of these had been resolved in Merrill's favor, the potential of continued complaints and disputes remained because their cause continued. Hence, I find, there existed un- relieved friction between the two springing from Merrill's recurring charges that the weekly paychecks he complained about did not include overtime for which he was entitled to be paid .9 Soon after Janssen handed Merrill his check on Octo- ber 17, Merrill charged, and Janssen denied, that the amount was short. Accord- ing to Janssen, Merrill grew profane and drove the forklift truck into a pallet of boxes of packaged tile, whereupon he told Merrill, "This is it, now you are fired." Janssen's testimony finds external corroboration -in Richard Merrill's tendency to be rather hotheaded; in the fact, admitted by Richard's father, Elmus, that follow- ing the discharge Janssen approached' the father and told him he had had to dis- charge Richard for damaging the boxes; and, in the fact, that 2 or 3 days later (apparently at the beginning of the next workweek) Janssen showed some damaged boxes to the father 10 On the other hand, former employee Rhodes testified that he approached a "pop" machine situated some 20 feet distant while Janssen and Merrill were in conversation and that "as he walked up" to the "pop" machine area he heard Merrill say "we are trying to get a union in here to straighten things out" and he beard Janssen say "You are fired," and then he, Rhodes, walked away. Rhodes added that Merrill, as all witnesses agree, was sitting on the lift truck but that he did not see the truck move or strike any boxes. But Rhodes obviously did not appear on the scene until after the Janssen-Merrill dispute was underway, he apparently left while Janssen and Merrill were still at it, and be put in one sentence of testimony what he over- heard (despite the distraction of considerable factory noise in the area). In the circumstances he cannot be considered a competent witness to all that was said or happened, or in what order, while he was nearby. Hence, while I see no reason to discredit his testimony that he heard Merrill say something about getting a union in, I do not consider his elliptical testimony, bearing in mind the circumstances above mentioned, as warranting me in finding that Janssen thereupon, and because of this remark, told Merrill he was discharged. And' for the reasons above-stated, I. find his testimony has no definitive tendency to establish that Merrill did not drive the truck into the boxes. Janssen testified that during the discharge conversation Merrill did not make "to me" a statement that the employees "would get a union to represent them," but it may well be that Merrill made such an exclamation in what must have been a somewhat heated interchange. In any event, however, I consider the fuller account given by Janssen of the totality and order of what happened as the more plausible one and find on the entire record, and my observation of the witnesses concerned, that Janssen discharged Merrill when, and because, Merrill drove the forklift into the boxes.li 9 Merrill's regular day ended at 2:45 p in and that of his wife (who rode with him to and from work) at 3:30 p in. The paycheck disputes sprung from complaints of Merrill that his check did not reflect overtime he had worked between 2:45 and 3.30 p. m. on one or another day, while waiting for his wife's shift to end. Whether he was entitled to pay for such overtime depended upon whether Janssen had specifically authorized such over- time on the day in question . Since Merrill normally clocked at 3:30, Janssen would make revisions on Merrill's timecard on the basis of his recollection as to the days Merrill had worked, or been authorized by Janssen to work, during this overtime period, and have Merrill's paycheck calculated accordingly. The disputes arose when, and because, Merrill disagreed with Janssen's recollections and calculations 11 On the basis of some measurement testimony, counsel for the General Counsel con- tends that the box indentations as described could not have been inflicted by the parts of the forklift which would strike the boxes, but the corresponding evidence is not sufficiently complete or clear to establish the fact asserted 11 On the record, it would have been natural for Janssen to be easily provoked into precipitately discharging Merrill because of any intemperate action on Merrill's part. Janssen had discharged Merrill in just such fashion in March when Merrill had indulged in a defiant outburst (although promptly rescinding his action after requesting an apology from Merrill) With Janssen characterizing Merrill as sulky, hotheaded, and a consistent "griper," the situation between the two was patently volcanic and, as such, renders it not unlikely that Merrill would have erupted by driving the truck into the boxes and that Janssen ,would have promptly reacted with a discharge decision. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The alleged threat to discharge the Merrills About 5 p.m. on the day of his discharge, Richard Merrill telephoned Janssen and' after Janssen had refused Merrill's request to have his job back, told Janssen that he was going to make trouble for Janssen and, also, that he intended to take his case to the Board.12 The father, Elmus Merrill, testified that that afternoon Janssen told him he had talked to Richard; and that Richard had-told him he was going to the. Board. Then, the father testified, Janssen remarked, among other things, "what is the matter with the boy, hadn't he got common sense . . What does he want me to do, get mad, and then fire all of you Merrills?" Janssen was not interrogated directly concerning this incident, but in regard to a later one (see section 4, below), Janssen denied having ever mentioned anything about firing any of the Merrills. I find that Janssen made the remarks attributed to him in this testimony. He did' not specifically-deny them, and there is some considerable reason to believe that Janssen would have been inclined to utter them. He no doubt felt increased exaspera- tion with Richard Merrill, who, on the basis of my findings, had no just cause for threatening to hail Janssen before the Board. With the father apparently standing mute in the face of Janssen's criticisms, and with the Merrills as a group symbolized by their leader Richard, it would have been natural for Janssen to let his resentment spill over on the Merrills generally. In the nature of things, it may be that Elmus. Merrill considered that Janssen was merely letting off steam (as I believe was the case), and for that reason did not put much stock in Janssen's remarks. But since Janssen did not retract them then or later, they should be viewed in the light of their natural effect upon, and their natural interpretation by, Respondent's employees. So viewed, they represented interference, restraint, and coercion of employees with re- spect to their right to, resort to the protective and remedial authority of the Board, and as such violated Section 8(a)(1) of the Act. 4. The alleged threats of November 18 Norma Merrill testified that on November 18 Janssen initiated a conversation with, her and her father by saying that he had heard "you people want another union" and when Norma confirmed this, Janssen stated he had taken up with the "Board" 13 the matter of giving the employees a Christmas bonus but "now that I hear you want another union, I don't know." She testified that Janssen further stated "we already have.a union in here .. don't get both of the unions fighting between us, and then he said, you people make me mad and I will fire all the ones I don't like."' Queried as to what Janssen said on this occasion, the father testified that Janssen said he had been to Chicago to see about the Christmas bonus and "I come back and find out you people want another union in here, now I don't know." The father did not attribute to Janssen any of the further statements Norma Merrill ascribed to Janssen, in her testimony. Queried concerning this conversation by Respondent's counsel, Janssen could not recall a conversation with the two Merrills of this exact date, admitted that he'did' have a conversation on some occasion about the Christmas bonus, stated that this. occurred before he knew anything about the Independent union, and denied that he- had ever said anything about discharging any of the Merrills. On this brief record, I find that shortly before this incident Janssen had learned that some concrete steps were underway among the employees involving the designa- tion of a new representative 14 and that when the Merrills confirmed this -develop- ii While Janssen was tinder examination by counsel for the General Counsel, I sustained, an objection to Janssen's testimony that Merrill said he was going "to make trouble" for Janssen, as unresponsive to the question put to him. I now reverse my ruling and admit Janssen's testimony, since in later examination of Merrill, counsel for the General Counsel elicited from Merrill a denial that he had made such a statement to Janssen 11 The reporter is responsible for capitalizing the word "board " From the further- testimony of Plmus Merrill and that of Janssen, I find that the reference was to Re- spondent's board of directors 14 The Independent requested recognition from Respondent on November 19, the day following Janssen 's conversation with Not ma and Ehnus Merrill Necessarily, therefore, the activity among the employees for designation of the Independent had preceded Novem- ber 18 in material degree, although, assuming as I do a ready inclination by the Merrill group to endorse a new representative, it would have taken little time or effort for the- Independent to obtain sufficient designations to seek recognition or to file a petition. Hence, this activity may well have not taken place until well in November. (In this- connection, when Richard Merrill asked the Independent about October 1 to organize Re-- - spondent's employees, the Independent declined to enter the picture until some later date.). US PERLITE CORP 1071 ment he said he was in doubt about payment of the Christmas bonus to which Re- spondent had been giving consideration (which it later paid) The next question is whether his statement violated the Act If he meant that Respondent might decide not to grant the bonus for fear of being charged with attempting to obstruct the new self-organizational effort, or for fear of being charged with favoiitism as between the two `fighting unions" to which he referred, the statement might well be innocent But on the record I have, Janssen made no such explanation to the employees at the time, nor has lie denied the purport of his remaiks about the bonus as described by the employees Moreover, the employee testimony indicates he spoke in a reproving and hostile manner In the circumstances, he appears to have been manifesting his disple-cure with the new representation effort and for that reason said that Respond- ent might decide not to grant a Christmas bonus Such a threat to withhold a benefit violates Section 8(a) (1) of the Act As to whether, as Norma Merrill testified, Janssen went on to say "you people" make "me mad" and that he would fire the ones he did not like I am given some pause because there is no confirmation in the testimony of Elmus Merrill that Janssen made these iemaiks But I have found that he made the threat regarding the Christmas bonus and if he were willing to go that far, it was in keeping for him, when in such a frame of mind, to have gone one step further I find that he did so, and that by "you people" and "the ones that I don't like" he was referring to those instrumental in seeking to obtain a new representative, including these two Merrills, as his remarks evidenced His statements constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act, and 1 so find Comments on the Parties' Respective Theories of the Case The General Counsel's theory, basic to all unfair labor practices charged and elaborated in his brief, is that Respondent had had an easy time of it in the bargain- ing with Local 496, that Local 496 left the scene following the bargaining sessions ending in July, and that with the inactive Local 496 remaining the certified rep- resentative while employee interest in "another union" developed, Respondent sought to prevent this status quo from being disturbed, t e , to deter the employees from selecting another representative to replace the Brotherhood, on all occasions piesented 15 Counsel for Respondent, on the other hand, contends that the bargaining activity between Local 496 and Respondent came to a natural halt when Local 496 became While Janssen testified that he hid neser heard of the Independent until it requested recognition on the 19th 2nd that he hid obsersed no corresponding ictisity at the plant it dots not follow Ihit lie hid not gotten wind of same coneieto steps tnderway foi design ition of some new union, wh'stever its name His statements to the Merrills on Nosembi r 1S weie implicit with such knowledge knowledge furthermoie slush it would be ri ison able to infei would Ii iso somehow come to his ittention, despite the absence of Os ert oigini7ing ietliity around the plant, in view of the ins ill complement of employees and the close and direct perwnil contact J incsen hid with ey ery worker 16 Some of the s anous expressions of this theori set forth in the brief of counsel for the General Counsel ite as follows There had been no substantial relationship at ani time since Local 496 had been cci tified E C H t * • O Although Local 496 carts certified on November 5, 1962 Respondent and Local 496 did oat melt for the puiposes of negotiating a collective-b2igaining agreement until the end of May 1964 s * w w a a o [Atter the emploiees' bargaining committee refused to sign the agreement] "Cl itteibuck thereupon depirted, never to return to the punt iscither he, nor .ins other repiesentitise of Lo( it 496, eser made ani further efforts to secure i coilectise- birt,iining s&rcenient or itteniptcd to offer the Perlite employees ani representation" G k 4 p * p 4 Thus, it is clear that from the certification of Locil 496 in Noy ember 1962 until the ceatification of the [Independent] in Januar3, 1964, Respondent had the insulation of a nominal collective bargaining relationship with a union, certified b3 the Board but with none of the obligations usually incumbent upon an eniptoyer whose cmpioSces have chosen to be repiesented bi a labor organization As far as Respondent was concerned, the status quo was equivalent to there being no union in the picture 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied that better wages than Respondent offered could not be obtained; and that while there was manifest dissatisfaction among the employees thereafter with their wages and their chosen and certified representative, there was no definitive activity toward selection of another representative, and hence nothing for Respondent to be resisting, until, as Respondent's counsel views the evidence, after all events charged had occurred. The justification for any theory of a case, and its corresponding utility as a guide to the interpretation of evidence, depends upon the support it finds in the record. On the basis of my findings in this case, both theories advanced are in large part overdrawn, and insofar as they represent, respectively, theories advanced as.talis- men for deciding the case as a whole, I reject them both.16 In short, my findings relate to the issues and rest on the evidence before me, and speak for themselves. IV. THE REMEDY The unfair labor practices found call fora cease and desist order of appropriate scope. While certain of the unfair labor practices found involve threats of dis- -charge, for reasons previously indicated, I do not believe Respondent's conduct manifests a clear and serious prospect that it will engage in discharge action viola- tive of the Act. Hence, I recommend that the cease and desist order be limited to restraining the commision by Respondent of the same or similar violations of Section 8(a)(1). My proposed order also calls for affirmative action in the form of the customary notice to employees. CONCLUSION OF LAW 1. By threatening to discharge employees because of the asserted intention of a discharged employee to file a charge with the National Labor Relations Board respecting his discharge, as found.,above, , Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the National Labor Rela- tions Act, as amended. 2. By implying that it might refrain from granting a Christmas bonus, and in stating that it might discharge employees 'because of the manifest wishes of its employees regarding designation of a union to represent them, as found above, Re- spondent has engaged in unfair labor practices-within the meaning of Section 8(a) (1) of the National Labor Relations Act, as amended. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent did not engage in the other unfair labor practices charged in the complaint, as to which the complaint should be dismissed. On the foregoing findings of fact and conclusions of law, and on the record as a whole, I recommend issuance pursuant to Section 10(c) of the Act of the following: RECOMMENDED ORDER Respondent, U.S. Perlite Corp., its officers, 'agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discharge any employee because he or any other employee files, or declares an intention to file, a charge against Respondent with the National Labor Relations Board. (b) Threatening to withhold any bonus or other emolument from its employees, or threatening to discharge any employee, in order to deter or discourage its em- ployees from designating a collective-bargaining representative. (c) In any like or related manner, interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. ie Insofar as the brief for counsel for the General Counsel may be interpreted as ex- pressing the view, or as requesting me to find, that Local 496 was derelict in the per- formance of its representative role, I should point out that no such conclusion by counsel or finding by me is warranted in the absence of a full trial on this issue on notice to Local 496. DUBO MANUFACTURING CORPORATION 1073 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in Momence, Illinois, copies of the attached notice marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of Respond- ent, be posted by Respondent immediately upon receipt thereof, and be 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 Region 13, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps Re- spondent has taken to comply herewith 18 17 If this Recommended Order be adopted by the Board, 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 Court 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." 18 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 A 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: ALL OUR EMPLOYEES have the right to form, join, or assist any labor union and to designate any labor union, including Independent Workers Union of America, as their collective-bargaining representative, or to refrain from form- ing, joining, assisting, or designating any labor organization. WE WILL NOT threaten to discharge any employees because any employees or discharged employees proposes to file, or files, any charge against us with the National Labor Relations Board. WE ALSO WILL NOT threaten to withhold a Christmas bonus from our em- ployees or threaten them with discharge on account of their desire to designate, or their designation of, any labor organization as their collective-bargaining representative. U.S. PERLITE CORP., 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or com- pliance with its provisions. Dubo Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Case No. 8-CA-2882. September 16, 1964 DECISION AND ORDER On January 30, 1963, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding finding that 148 NLRB No. 96. 760-577-05-vol. 148-69