United Nuclear Corp.

UNITED NUCLEAR CORPORATION 961 statutory "employer" with respect to which Section 8(f)'s relevancy would have to be decided . Should such a view with respect to the statute 's meaning prevail, how- ever, the practical and legal problems which would have to be solved-before any determination could be made as to whether such a composite "employer" should be considered primarily engaged in the building and construction industry , would surely be numerous and difficult . For present purposes , luckily, they need not be dis- cussed. ) With respect to other types of special trade contract work-plumbing, heat- ing, and air conditioning ; painting, paperhanging, and decorating ; electrical work; masonry, stonework , tilesetting, and plastering ; carpentry work; roofing and sheet metal work ; concrete work; structural steel and ornamental metal work ; glass and glazing work ; and the installation or erection of prefabricated building equipment, similar situations might conceivably develop which could only be decided on some case-to-case basis . Congress cannot have conferred statutory privileges, which Sec- tion 8 ( f) provides , subject to limitations reasonably calculated to create a double standard for contractual union security clauses, inter alia, within the building and construction trade considered as a whole. CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. Indio Paint and Rug Center is an employer within the meaning of Section 2(2) of the Act , engaged in commerce and business activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act, as amended. 2. Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters , Decorators and Paper Hangers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act , as amended, which admits employees of Indio Paint and Rug Center to membership. 3. Throughout the period with which this case is concerned , Indio Paint and Rug Center has been, and is now, engaged primarily in the building and construction industry ; within that industry it performs contract construction services as a special- trade contractor. 4. Respondent Union has not, through its negotiation , maintenance or effectuation of a contract with Indio Paint and Rug Center which includes a 7-day union-security clause, caused the Company designated to discriminate against its employees in vio- lation of Section 8(a)(3) of the Act, as amended ; Respondent Union , therefore, has not engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and Section 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, my recommendation is that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, dismiss the present complaint in its entirety. United Nuclear Corporation and United Steelworkers of Amer- ica, AFL-CIO, and Local No. 5605, United Steelworkers of America, AFL-CIO. Case No. 28-CA-1138. January 18, 1966 DECISION AND ORDER On June 22, 1965, Trial Examiner Howard Myers issued his Deci- sion 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 Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 156 NLRB No. 83. 962 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Pursuant to provisions of Section 3 (b) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member .panel [Chairman McCulloch and Members Jenkins and Zagoria). 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, the briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. The Trial Examiner concluded, and we agree, that in July 1964 the Respondent's supervisors made coercive antiunion remarks to employees, in violation of Section 8 (a) (1) of the Act. 2. The Trial Examiner further concluded that at no time did the Respondent enter the 1964 collective-bargaining discussions with the Union in good faith or with an open and fair mind and a sincere purpose to find a basis of agreement, within the meaning of Section 8(a) (5). The Respondent excepts, in part, on the ground that the evidence does not furnish substantial support for this conclusion. In our opinion, however, the evidence disclosed by the record and found by the Trial Examiner clearly warrants the Trial Examiner's conclusion. Upon taking over the operations here involved in the spring of 1963, the Respondent signed a supplemental agreement with the previously certified Union, adopting with modifications the current collective- bargaining contract between the Respondent's predecessor and the Union covering the production and maintenance employees. As this agreement approached its expiration date of May 31, 1964, however, the Respondent in effect withdrew recognition from the Union. The Respondent began by permitting a group of antiunion employ- ees to post notices on its bulletin boards, attaching petitions designed to whip up employee sentiment for decertifying the Union. When the Union protested, the Respondent substituted notices of its own, advis- ing the employees that it did not like working with a union contract, that without the union contract it would continue to make improve- ments, and that it fully supported any employees who might back the antiunion petitions. Accordingly, when the Respondent received the Union's letter of March 29 requesting that it set a date to commence negotiations for a new labor agreement, it ignored the request. When the Union more than 2 weeks later repeated its request by telephone, the Respondent's general manager replied only that he would try to determine what the Respondent's intentions were, and thereafter again ignored the Union's request. After another 2 weeks passed without response, the Union yet again repeated its bargaining request, and a UNITED NUCLEAR CORPORATION 963 meeting was finally arranged for May 11. The principal subject at the meeting, however, turned out to be the Respondent's announce- ment to the Union that because of its large stockpiles it would rather not deal with the Union, it would benefit from a strike, and it was giving operational training to its nonoperating personnel in case the mines were shut down. The Union nevertheless continued • its efforts to persuade the Respondent to bargain collectively, and a further meeting was sched- uled for May 25. At that meeting, however, the Respondent tried a new approach. It told the Union, for the first time, that it doubted the Union's majority, allegedly based upon a letter received from an employee advising that a decertification petition had been filed with the Board, and also allegedly based upon information that a majority of the employees had signed or at least supported the decertification petitions previously posted on the Respondent's bulletin boards. In reply to the Respondent's alleged doubt of majority, the Union pointed out, to no avail, that the Respondent possessed union checkoff author- izations from an overwhelming majority of its employees. On June 12 the Respondent filed a petition for an election (Case No. 28-RM-114). In an attempt to expedite collective bargaining, the Union withdrew a 'refusal-to-bargain charge which it had filed against the Respondent, and joined the Respondent in signing a stipu- lation for certification upon consent election, pursuant to the Respond- ent's petition. But the Respondent was not content to let a fair and free election reflect the choice of its employees. Instead, while engag- ing in the 8(a) (1) violations detailed in the Trial Examiner's Deci- sion, the Respondent sent several letters to its employees, stating that if they voted against the Union they would continue to enjoy their wages, fringe benefits, and other conditions of employment without any union financial burden; but that if they voted for the Union, the Respondent had no intention of ever agreeing to any union-security or checkoff clauses, and that the Respondent rather than the employees would benefit by the resulting strike. The Union, despite the Respondent's unlawful campaign against it, won the election by an overwhelming majority, and was again certified on August 10, 1964. But the Respondent persisted in refusing to bargain collectively in good faith. At a meeting on August 18 the Respondent stated that it was about to lay off a large number of employees. When the Union asked if such employees would receive severance pay, which was a condition of employment embodied in the collective-bargaining -contract signed by the Respondent's prede- cessor in 1962 and adopted by the Respondent in 1963, the Respondent replied in the negative, on the ground that its policy was not to pay any 217-919-66-vol. 156-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD severance pay unless required by contract. The unilateral withdrawal of severance pay from the employees subsequently laid off stands in marked contrast to the clear statement in the Respondent's posted notices of March 19, before the election, asking the employees to reject the Union on the ground that there would be "no change in benefits now received by the employees whether we are working with a union contract or without." It is also in marked contrast to the Respondent's conduct with respect to discontinuing another term or condition of employment, the unavoidable absence plan. That plan was likewise embodied in the 1962 contract adopted by the Respondent. But even after expiration of the contract, the Respondent discussed with the Union its proposed discontinuance of the plan; and before discontinu- ing it on August 5, it obtained the Union's acquiescence, according to a finding of the Trial Examiner which stands unchallenged. Grievances were thereupon filed with the Respondent, claiming that in making the layoffs the Respondent failed to pay the customary severance pay or to follow seniority. But the Respondent's super- intendent advised the Union that he would do nothing about the grievances, since the contract had expired. And the Respondent's general manager, although admitting that the practice during the term of the contract was for him to answer a grievance in writing within 5 days and then meet with the Union to discuss it, likewise advised the Union that he did not know what he could do with the grievances in view of the expiration of the contract. Moreover, as the Respondent again explained in its October 1964 letter to the Regional Office, which is in evidence in this case, the Respondent's position at all times has been that the grievance procedure embodied in the con- tract ceased upon expiration of the contract. On these facts, we find, in agreement with the Trial Examiner, that at no time did the Respondent enter the 1964 collective-bargaining negotiations with the Union in good faith, within the meaning of Section 8(a) (5) of the Act. Thus, the record shows that the Respond- ent at first completely ignored the Union's demand for recognition. When the Union repeated its demand 2 weeks later, the Respondent said that it would think it over, but again ignored the demand. When the Union once again reiterated its demand after another 2 weeks, the Respondent had no intention of bargaining in good faith, but instead told the Union that it would rather not negotiate and was in fact getting ready for a probable protest strike. When the Union continued its efforts to persuade the Respondent to fulfill its bar- gaining obligations, the Respondent, without any change of purpose, reluctantly arranged another meeting for May 25. But at that meet- ing the Respondent for the first time expressed doubt of the Union's UNITED NUCLEAR CORPORATION 965 majority, based upon the fruition of its antiunion campaign since the May 11 meeting and in the face of its continued possession of checkoff authorizations from an overwhelming majority of the employees. When the Union agreed to an election to show that the Respondent's doubts were baseless , the Respondent renewed its antiunion campaign, engaging in 8(a ) ( 1) violations and advising the employees that at least as to certain subjects it had no intention of ever bargaining to an agreement. When the election nevertheless showed that the employ- ees continued to want the Union to represent them, the Respondent once again reluctantly arranged a meeting . But at that meeting the Respondent announced that a large layoff would be made , and that the customary severance pay would not be paid to the laid -off employ- ees. Finally, the Respondent took unilateral action to change the customary grievance procedure: when grievances were duly filed with the Respondent relating to the layoffs , its officials in effect refused to consider the grievances, on the ground that the contract had expired. In sum, we find that the record fully warrants the Trial Examiner's conclusion that at no time did the Respondent enter the 1964 collective- bargaining negotiations with the Union in good faith within the meaning of the Act. 3. Although not entirely clear, the Trial Examiner apparently concluded that the Respondent's unlawful refusal to bargain occurred on and at all times after August 18, 1964, the date of the first bargaining meeting after the Union's certification in Case No . 28-RM-114. The General Counsel excepted to the Trial Examiner 's failure to date the Respondent's bargaining violation from March 29, 1964, when the Union first asked the Respondent to negotiate a new collective- bargaining agreement . The Respondent argued that any such date would be beyond the scope of the complaint , which in paragraph 15 alleged that the bargaining violation consisted of various unilateral actions commencing on or about June 1, 1964. We note, however, that the complaint also alleged in paragraph 9 that the Union has been the exclusive collective-bargaining representa- tive of all employees in the unit here involved ever since its certification more than 5 years ago ; in paragraph 10 that the Respondent recog- nized the Union and entered into a supplemental agreement in sub- stance adopting its predecessor's collective-bargaining agreement with the Union; and in paragraph 12 that on or about March 29, 1964, and continuing to date, the Union requested the Respondent to bargain collectively with it. The record further shows that at the opening of the hearing, and before any testimony was received, the Respondent's counsel asked for a bill of particulars or a statement on the record as to whether or 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not the General Counsel was contending that the Respondent violated its bargaining obligation to the Union prior to the election of July 31, 1964. The Trial Examiner accordingly asked the General Counsel if his contention was that there had been a refusal to bar- gain "since March 29, 1964." The General Counsel replied that he was prepared to prove that there had been a refusal to bargain "from the date of March 29, 1964." The Respondent's counsel then asked the General Counsel if the alleged refusal to bargain "has been a con- tinuous refusal to bargain." The General Counsel replied in the affirmative . To wind up the discussion, the - Respondent's counsel .then admitted that the General Counsel's statement covered his request. Moreover, the Respondent, far from objecting to the intro- duction of evidence to show a refusal to bargain prior to June 1, 1964, itself introduced evidence later in the hearing showing that it was fully aware that the alleged refusal to bargain commenced on .March 29, 1964, and was not limited to conduct since June 1, 1964. Accordingly, and in view of the fact that the Respondent had ample notice that the General Counsel's claim dated back to March 1964, we find merit in the General Counsel's exception, but not in the Respond- ent's opposing argument, and further find that the Respondent's refusal to bargain collectively with the Union within the meaning of Section 8(a) (5) of the Act occurred on and at all times since March 29,1964. 4. The General Counsel excepted to the Trial Examiner's failure to make specific findings of an 8(a) (5) violation in the Respondent's unilateral discontinuance both of severance pay and of the established grievance procedure. The General Counsel further excepted to the Trial Examiner's failure to recommend that the Respondent make whole the employees deprived of severance pay. The evidence, set forth above, convinces us that these exceptions have merit, and that the Respondent, during ostensible collective-bargaining negotiations with the Union, but without reaching a genuine impasse or securing the Union's consent to the discontinuance of either of these terms and conditions of employment, unilaterally and unlawfully terminated them, and thereby independently violated Section 8(a) (5).1 We are likewise convinced that the appropriate remedy for the unilateral discontinuance of severance pay is to require the Respondent to make whole the employees unlawfully deprived of their severance pay .2 ' 'See Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (Bethlehem Steel Co , Shipbuilding Div) v N L.R.B , 320 F 2d 615 (C A. 3). 28ee George E Light Boat. Storage, Inc., 153 NLRB 1209; Bethlehem Steel Company (Shipbuilding Division), 147 NLRB 977. UNITED NUCLEAR CORPORATION 967 [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Insert the following as paragraphs 2(b) and (c) and reletter the following paragraphs accordingly : [" (b) Make whole the employees laid off in August 1964 for any losses they may have suffered by reason of the Respondent's unlawful unilateral changes in their terms and conditions of employment, by paying each of them the amount he would have received as severance pay, with 6 percent interest per annum thereon, as prescribed in Isis Plumbing d Heating Co. 138 NLRB 716. ["(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount due each employee under the terms of this Order." [2. Add the following as the last indented paragraph of the Appendix : [WE WILL make whole the employees laid off in August 1964 for the severance pay of which they were wrongfully deprived.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before Trial Examiner Howard Myers, at Grants, New Mexico , from January 19 through 22 , 1965, upon a complaint, as amended at the hearing , of the General Counsel of the National Labor Relations Board , herein called the General Counsel 1 and the Board , dated Novem- ber 17, 1964 . The complaint , as amended , based upon a charge and an amended ,charge, duly filed on September 3 and November 13, 1964, respectively , by United Steelworkers of America, AFL-CIO, and Local Union No. 5605, United Steelwork- ers of America , AFL-CIO, herein respectively called the Steelworkers and Local No. 5605,2 alleged , in substance, that United Nuclear Corporation,3 herein called Respond- ent, violated Section 8 (a)(1) and ( 5) of the National Labor Relations Act, as amended from time to time , herein called the Act. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Respondent , a New Mexico corporation , maintains an office and place of business at Ambrosia Lake located in the vicinity of Grants, New Mexico, where it is engaged in, and during all times material was engaged in, mining uranium ore. During the 12-month period immediately preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations mined, sold, and distributed at its Ambrosia operations , products valued in excess of $500,000 of which products valued in excess of $100,000 had a substantial impact on the national defense by virtue of contracts for the sale of uranium ore to the Atomic Energy Commission . During the same period , Respondent, in the course and conduct of its 1 This term specifically includes counsel for the General Counsel appearing at the hearing. Conjointly , Steelworkers and Local No 5605 are herein called the Union 3 At the hearing the name of Respondent was corrected to read as set forth above. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business operations at its Ambrosia Lake operations, mined, sold, and distributed products valued in excess of $100,000 which products were shipped directly to points located outside the State of New Mexico Upon the basis of the foregoing facts. I find, in line with Board authority, that Respondent is, and during all times material was, engaged in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act, and that its business operations meet the standards fixed by the Boaid for the assertion of jurisdiction. II. THE LABOR ORGANIZATIONS INVOLVED The Steelworkers and Local 5605 are labor organizations admitting to membership employees of Respondent. III THE UNFAIR LABOR PRACTICES A. The prefatory statement On December 31, 1959, the Steelworkers was certified by the Board as the statutory collective-bargaining representative of Phillips Petroleum Company's Sandstone mine production and maintenance employees On October 18, 1960, the Steelworkers was certified by the Board as the statutory collective-bargaining representative of Phillips' Cliffside mine production and main- tenance employees In June 1962, after the expiration of their previous collective-bargaining contract, Phillips and the Steelworkers entered into a 2-year collective-bargaining agreement covering the employees for whom the Steelworkers had been certified at both the Sandstone and Cliffside mines.4 On March 28, 1963, Respondent purchased from Phillips certain properties includ- ing the Sandstone and Chffside mines. Under date of April 5, 1963, Respondent and the Steelworkers entered into a supplemental agreement a which provided, among other things, that the parties thereto agreed to be bound by the aforementioned 1962-64 Steelworkers-Phillips collective-bargaining agreement, subject to certain specifically stated modifications regarding Blue Cross-Blue Shield insurance plans and wage increases, and amending the grievance and arbitration procedure. B. The pertinent facts 6 About mid-March 1964,7 at the request of several employees, D D. Turberville, the general manager of Respondent's Cliffside and Sandstone mines, permitted copies of the following notice to be posted on Respondent's bulletin boards: The present union contract expires this coming May 31st. Some of us feel we'll fare better without the union here than with it. At any rate we would like to see an election held to determine whether or not we'll continue with the union. I'm sure that some of you who have worked at several different mines, particularly in this district, have found, like we have, that the non-union mines have been the better jobs, and you didn't have to worry about a foolish strike every year or two. I've never seen it fail, that when a Company is tied to a union contract, it is fight tooth and nail over each and every benefit or difference 4 This agreement was entered Into by the Steelworkers "for and on behalf of Local 5605 6 For and on behalf of Local No 5605. 6In the light of my observation of the conduct and deportment at the hearing of all the persons who testified herein, and after a very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times, and being mindful of the contentions of the parties with respect to the credibility problems here involved, of the fact that in many instances testimony was given regarding events which took place many months prior to the opening of the hearing, and of the fact that very strong feelings have been generated by the circumstances of this case, coupled with the fact that It would unnecessarily protract this Decision to sum- marize all the testimony or to spell out fully the confusion and Inconsistencies therein, the following is a composite picture of all the factual issues involved and the conclusions based thereon. The parties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been carefully considered , ielevant eases have been studied ; and each contention advanced has been weighed, even though not specifically discussed. 7 Unless otherwise noted, all dates hereinafter mentioned refer to 1964 UNITED NUCLEAR CORPORATION 969 of opinion Without that tie it is frequently easier to settle differences and even consider the fringe benefits of Rare Metals Corporation or the bonus checks coming out of the Blackjack Mines. But think what you will about these things; it's only fair that we find out if the majority here still wants the Union We have drawn up the following peti- tion and if 30% of the men sign we'll have that election. In order to sien, con- tact Lee Brooks or Lin Hadden at the Sandstone or Jerry Miller at the Cliffside. The following is a copy of the petition Within a day or so of the posting, the aforesaid notice was removed upon orders of Turberville because, as he testified, Patrick Bodoh, the then president of Local No 5605, protested the said posting and for the additional reason that the wording of the notice caused a considerable amount of confusion in the minds of the employees On or about March 19 copies of the following notice were posted on Respondent's bulletin boards over Turberville's signature: Several days ago the Company was approached by a number of employees requesting permission to post a notice on the Bulletin Board stating they were going to circulate a petition to find out how many men might want an election. The Company granted them this permission It was felt the Company was at fault for granting them this permission accord- ing to Article XIX, Section 2 of the Contract. In checking this through our legal department, I was informed the Company was not at fault, but in any event I had these notices taken down to avoid any disagreement. We all are living in a free country and these men certainly have the right to do this if they desire to do so. The Company must remain neutral in a situation like this. However I would like to point out as near as I can the Company's position March 28, 1963, at which time United Nuclear took over the operations of the old Phillips Petroleum properties, the Company at this time stated they did not like working with a Union contract but a contract did exist and we would abide by it. We have made every effort to do just this. This month United Nuclear will have operated these properties for a full year. Changes have been made which have improved the operations in general. More changes will be made this year which will benefit and improve our operation. The Company is in a much better position to make improvements this year than last year. United Nuclear feels as I do myself that no operation, regardless of what busi- ness we are in, is any better than the quality of the men that are doing the work. We would prefer that all of our employees to be satisfied with their job. Listed below are certain facts the Company will maintain: 1. Our policies will remain the same regardless of circumstances that may arise unless a change would benefit the operation. 2. Operational procedure will remain unchanged unless some benefit can be achieved for the operation in general. 3. There will be no change in benefits now received by the employees whether we are working with a Union contract or without. In general the Company's attitude will remain the same, regardless whether a Union contract exists or not. I have heard rumors in the last few days that the employees that are circulat- ing petition for a vote will be fined, black-balled and the Company will be forced to discharge them for their action I want to put everybody's mind at rest. The Union cannot collect a fine for this purpose They would be violating a Federal law to try and black-ball these men. They cannot force the Company to dis- charge anybody especially for an illegal reason as this. Any employee that falls or may fall in this situation I want to understand that Company is in full support of him. I hope I have made myself and the Company's position somewhat clearer. At a meeting held on March 22 between Turberville and Albert J. Frantz, a Steel- workers representative and the main spokesman for Local No. 5605 in its dealings with Respondent, Frantz stated that in his opinion Turberville's March 19 notice vio- lated the terms of the then-existing bargaining agreement between the parties and requested its removal. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the course of the meeting referred to immediately above, Frantz stated that he would send Respondent a notification shortly of the Union's intention to negotiate a new agreement. Turberville replied that he did not know what position Respondent would take with respect to negotiating a new agreement. On or about March 23, Bodoh posted on Respondent's bulletin boards copies of a notice reading as follows: The management last week posted a notice clearly stating their position in regards to the petition being circulated throughout the mine seeking an election to determine whether or not the United Steelworkers would continue to be the bar- gaining agents for Cliffside and Sandstone mines. The management went on to state that they backed the people who were behind the petitions 100%. The company went further and stated that the Union was powerless to take any action against these people The company has the right to disipline [sic] the people who come under their jurisdiction. The company has no control over disiplinary [sic] action taken within the Union against members who violate the Constitution of The United Steelworkers of America. The Union has been put in the position now that we must take action against the people circulating these petitions, such action has been started and will be continued until the members of this Union are satisfied that justice has been done Under our Constitution, these men may be fined up to $500.00, suspended from the Union, or expelled from the Union, if they are found guilty of the charges being brought against them. Under date of March 26 Turberville wrote the Steelworkers, sending a copy of the letter to Local No. 5605, that Respondent was terminating the then-existing collective- bargaining agreement "upon the contract's expiration date of midnight, May 31, 1964." Under date of March 29, Frantz wrote Respondent, sending copies of the letter to Local No. 5605 and to the Federal Mediation and Conciliation Board, of its "inten- tion to negotiate a new Labor Agreement." This letter concluded with a request that Respondent set a date to commence negotiations. Having received no answer to his March 29 letter, Frantz, on or about April 15, telephoned Turberville and inquired about a date to start negotiations. Turberville replied, to quote from Frantz' testimony, "He did not know what the Company's intentions were but that he would try to determine that [sic] and let me know." Not having heard from Turberville or anyone else connected with Respondent regarding a date to start negotiations, Frantz, on May 1, again called Turberville. Upon being informed that Turberville was out of town, Frantz spoke to James Green- slade, Respondent's general superintendent and the person next in the chain of com- mand after Turberville, and informed him that it was important to have a date set to start negotiations, adding that if such was not done he would file a refusal-to- bargain charge with the Board. On or about May 5 Turherville called Frantz. The latter told Turberville that if a negotiation meeting was not arranged soon, he would file a refusal-to-bargin charge with the Board. Frantz then told Turberville that he would be in Grants, New Mexico, where Respondent's operations and Turberville's office are located, on May 8, at which time he would telephone Turberville to ascertain when Turberville would meet to negotiate a new agreement. On May 8 Frantz telephoned Turberville and a negotiation meeting was set for May 11. During the course of the May 11 meeting, Turberville informed Frantz that Respondent would rather not deal with the Union.8 According to Turberville's testi- mony the following transpired at the aforesaid May 11 meeting: I felt at that time that I would like to get together with Bert [Frantz] and lay the Company's situation, as far as stockpiling and the AEC allotment, on the table and make sure that he knew exactly what existed, and I did this. I gave him facts and figures, the value of the stockpiles, the maximum amount of the AEC allotment that we had on the contract, and the economic position that we were in, being able to produce more than we were able to sell under our AEC con- 8 Respondent's unconcealed hostility to the Union is clearly established not only by the above Turberville remarks, but also by the letters Respondent mailed to the em- ployees' homes while the Union's petition seeking to be certified as the collective-bargaining representative of the employees was pending undetermined before the Board UNITED NUCLEAR CORPORATION 971 tract. Therefore, that I would like to be able to reduce my stockpiles rather than, increasing them each month, which at that time my production was exceeding what 1 could sell, so my stockpiles were gradually growing larger . I showed him, what it was costing us to stockpile this ore , and it was about five and three quar- ters per cent The fact that we have such large stockpiled material existing at that time, that the best economics to the Company-that I could actually [sic] [shut] out all the mines down and gain better better economics out of it than I could by reducing production . Now, the next best step would be a reduction in-a reduced production schedule. Q. Did you make it clear to Mr. Frantz that the Company would be able to satisfy its AEC requirements from the stockpiles? A. Yes, I could easily satisfy the AEC requirement for two years and even; longer if we went beyond the stockpiles that you mentioned at Sandstone and- Chffside. * * * * * * * I also told him at that time that a strike would not bother the Company, period. In fact, as far as economics are concerned , it would have benefited me. Turberville also stated at the above -said meeting that Respondent was training its- salaried personnel ' in the operation of the hoist and pumps in case the mines were shut down. In response to Turberville's above-quoted remarks, Frantz stated, to quote from his testimony: ... I made a reply to Mr. Tuberville [sic] that I was not interested in shutting the mine down , that I was interested in seeing if we could arrange a meeting whereby we could get together in negotiations and arrive at an agreement ; and that was. not the Union 's intent, to shut the mine down. At that time, Mr. Turberville did discuss with me problems concerning the unavoidable absence.9 He asked me also, what was the Union going to demand, and what was the change that the Union was requesting in the agreement, and I told him that while there had been nothing definite, we certainly had the door open to talk about the unavoidable absence. We certainly had the door open to talk about many things in the agreement Before the meeting concluded , the parties agreed to meet again on May 21 or 25. Under date of May 13 Turberville wrote Frantz that he and his colleagues would meet him at 1:30 p in. on May 25 at the Grants, New Mexico, mill office. On May 25, as scheduled , Turberville , Respondent's negotiating committee, and' Respondent's counsel met with Frantz and the Union 's employee negotiating committee. Turberville opened the aforementioned meeting by stating that Respondent "had. prepared a contract proposal for discussion and consideration ," that contract negotia- tions could not legally be carried on because Respondent doubted the Union's major- ity status. In response to Frantz' inquiry upon what Respondent based its doubt, Tur- berville and Respondent's counsel stated that Respondent had received a letter that morning from employee Lee Brooks advising it that "a petition seeking an election has- been filed with" the Board 10 Respondent's representative then told the Union's representatives that Respondent had been informed that more than 50 percent of its employees had signed authorizations to support a petition seeking a Board election to have the Union decertified as their collective -bargaining representative ; and that many other employees had told Respondent that they supported the decertification, petition but were fearful of union reprisals if they signed the supporting authorization. At the conclusion of Turberville's and Respondent counsel's above-referred to com- ments, Frantz replied that he could not understand Respondent 's doubt of the Union's majority status since Respondent had in its possession union dues checkoff authori- zations from 150 of the approximately 170 persons then in its employ and that, as far as he knew , only 7 employees had withdrawn from the Union . Respondent's counsel then suggested that, in order to expedite matters, the parties enter into an agreement 6 This had reference to a clause in the bargaining agreement 10 An attempt was made by Brooks to file a representation petition on or about May 24, but the Regional Director refused to process it because the then-existing contract be- tween Respondent and the Union had not, by its terms , expired nor had it been terminated by mutual consent. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , to have the question of the Union's majority determined by a Board-conducted elec- tion. Frantz rejected the suggestion maintaining that sufficient proof of the Union's majority status was clearly evident and hence no election was necessary When Frantz, toward the end of the meeting referred to immediately above, said, "The thing that bothers me is, what is going to happen to these men," Turberville stated, according to his own testimony, "I gave [Frantz] my word that there would be no changes made whereby the men would be hurt or any adverse condition brought about until this pending election was settled." When Frantz said, "Does this mean, Dave, that you are extending the contract7" Turberville replied, "No, it does not." James O. Greenslade, second in command at Respondent's Grants, New Mexico, operations, testified that at said May 25 meeting, when "Mr Frantz said that they, the Union, still felt that their position was that they represented the employees because of the checkoff list and the number they had, . . Mr. Pickering [Respondent's coun- sel] said, well, if they felt that way, that the Company was willing to negotiate with them under the stipulation that if any negotiations that went on prior to when this problem was [settled by a Board] election, that if the Company received the greatest -number of votes" that any agreement reached "would not be binding on the Company" but "if the Union was selected that these ... negotiations would be binding on the Company," and that Frantz rejected the suggestion. I reject this portion of Green- slade's testimony on the ground that it is not in accordance with the facts. This find- ing is not only based upon the fact that Turberville, during his long and detailed account of what transpired at this meeting, made no mention of this suggestion, but when Frantz was asked on cross-examination by Respondent's counsel whether he recalled Respondent having "offered to go ahead and negotiate, try to negotiate terms of an agreement with the Union" subject to the outcome of the decertification petition which Respondent mistakenly believed had been filed, Frantz replied, "No, sir, Mr. Pickering, I don't believe that was the statement that was made because I was given to understand when I set my briefcase down that the Company could not negotiate with the Union because they had reason to believe we no longer represented the employees there." Moreover, based upon my personal knowledge that Respondent's counsel is well grounded in the field of labor law, I seriously doubt that said counsel would suggest that his client bargain collectively with the Union under the circum- stances as they purportedly existed at the time of the May 25 meeting. The following day, May 26, the Union filed a refusal-to-bargain charge with the Board 11 On June 2 Brooks filed a decertification petition with the Board.12 On June 9 the Regional Director dismissed the said petition because the showing of interest submit- ted in support thereof was inadequate in that the authorizations attached thereto were undated The Regional Director's dismissal letter was sent to Brooks and copies thereof were sent to Respondent, the Steelworkers, and Local No. 5605. Following the dismissal of the aforementioned decertification petition, Brooks, the spearhead in the decertification campaign, informed Turberville that he intended to contact the signers of the authorizations and have said persons again sign, dating their signatures this time. Turberville responded that he would prefer that Brooks would proceed no further in his attempts to have the Union decertified because his decertification activities had already caused an uproar among the employees which had adversely affected Respondent's production. Turberville then informed Brooks that Respondent intended to file a petition requesting an election and hence his con- templated action would make unnecessary any action by the employees to determine the Union's majority status. On June 12, Respondent filed a representation petition.l3 Under date of June 15 the Regional Director wrote Respondent that the Union had withdrawn, without prejudice, that charge which it had filed on May 26, in Case No. 28-CA-1093 On June 23 Respondent and the Union entered into a stipulation for certification upon consent election mutually agreeing to the terms of and the holding of an elec- tion on July 31,14 among the Cliffside and Sandstone mines production and mainte- nance employees who were on those mines' payroll during the payroll period ending .June 30. u Case No 28-CA-1093 32 Case No 28-RD-90. 12 Case No. 28-RM-114 "Case No 28-RM-114. UNITED NUCLEAR CORPORATION 973 On or about June 30 Respondent transferred approximately 40 of the Sandstone unit employees to its newly acquired San Mateo, New Mexico, mine located about 10 or 12 miles from the Sandstone operations.15 Former employee Donald L Lassiter 16 testified that about a week or two prior to the scheduled July 31 election, he had a conversation with Jack Fowler,17 during which Fowler remarked, to quote from Lassister's testimony, "He would like to see us vote no union just to see if the Company would keep their word, . that probably they would force us into a strike by not giving us a good contract, taking away what we had, and if they didn't force us into a strike, they are liable to shut down the mine themselves to get i id of the union." Lassiter further testified that during the same conversation, Fowler also said Respondent "had won half of the battle by stopping union deductions." is Ruben E. Gallegos, a contract miner employed at the Cliffside mine since 1961,19 testified, without contradiction, that after the aforementioned Board-conducted election had been held but before the result thereof had been made known, Fowler told him that if the Union won the election, the employees would probably lose their insurance and sick leave benefits, as well as their seniority status Raymond F. Cummings, a Cliffside contract miner since December 1961, testified that either in the latter part of June or early in July, his immediate supervisor, Edward Lilly, said that if the Union won the election Respondent would probably close the mine and the employees would be looking elsewhere for jobs. Former employee Samuel Dominguez testified that about a week or two prior to the election, Royal Smith, his immediate supervisor, said to him, in the presence of his working partner, Jose Mondragon, "If the Union was voted back in ... or .. . in the case of any layoffs, some of the men would not be transferred to any other mines" owned and operated by Respondent. Jack Velarde, a Cliffside mine contract miner since September 1960, testified that shortly before the Board election Smith said to him that the employees would be ,crazy to vote for the Union because if the Union won the election the employees would lose their seniority rights and their insurance benefits, and that because Respondent would never sign a contract with the Union, therefore the Union would be forced to strike. Samuel Dominguez, a Respondent contract miner and an employee within the ap- propriate unit, testified that about a week or two before the scheduled Board election, his shift foreman, Royal Smith, asked him and his partner, Jose Mondragon, how they "thought the election was going to come out"; and that when he told Smith that he and Mondragon "had pretty well made up our minds how we were going to vote," Smith said that in case the Union "was voted back in" none of the men subject to be laid off would be transferred to any other mine owned by Respondent. Fowler testified that: He had been asked on several occasions by various employ- ees what Respondent would do if the Union won or lost the election; in response to these inquiries he replied that he did not know what Respondent would do either way; as far as he knew Respondent would continue to operate the mine in the same manner regardless of the outcome of the election; several times he told the employees that if their production did not increase he believed Respondent would have to shut down and if it did so, "there wouldn't be no mine, there wouldn't be no union, there wouldn't be no company"; production at the Cliffside mine (where he had been a shift foreman) had fallen to only 5 to 350 tons of ore per day, whereas prior to "the union election talk" approximately 500 tons of ore were produced daily; the reason for the sharp reduction in production was due to the fact that "there was a lot of tension on that mine out there, the men were unsettled, their problems weren't of money, they were concerned with their future, they were concerned about their employment, and they were concerned about this election." 15 This mine was acquired by Respondent subsequently to the execution of the June 23 consent-election agreement. 19 During a portion of 1964 , Lassiter was chairman of Local 5605 's maintenance em- ployees' grievance committee. 14 Fowler was laid off by Respondent as a consequence of reduction in force, August 28 layoff. This reduction is discussed in detail below. 18 Respondent ceased to check off dues on May 31, the expiration date of the contract. 11 Contract miners were included in the agreed -to appropriate unit 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fowler further testified that he had several conversations with Cummings con- cerning the Union; that in each of these conversations, Cummings usually asked if Respondent would close the mine if the Union won the election; and that in answer to Cummings' questions he replied: I told him as far as I knew they were going to keep mining. I said, "They are a young company." I said, "Now, they don't like to work with the union con- tract, they feel that they can operate better, but," I says, "Since they got one, they are going to honor it," and I says, "I don't know whether they are going to have another one or not" because at that time I did not know. But I said as far as I knew that the Company was out there to mine ore and that is what they were going to do with or without a union. And he asked me about the, was they going to shut down if the union got elected, and I told him the same thing that I've told a lot of others, that if our production didn't increase to where we put it on a paying basis it would shut down. With reference to the statements which Gallegos attributed to him about the probable loss of certain benefits if the Union won the election, Fowler testified as follows Q. Now, Gallegos also testified that same evening after the election that you told him that if the election was won by the Union that the employees would probably lose most of their benefits and specifically that you told him that they would lose their insurance, their sick leave, and seniority. Did you ever make any such statement as that to Mr. Gallegos? A. No, sir, not to that effect, no I did not. Q. Do you recall what you did state? A. I did make a statement to him once that they were going to take away his unavoidable absence plan, that it was being abused. I said, "You are going to lose that, Ruben." I said, "You guys took advantage of that," and I said, "The Company is going to discontinue it." Q. Did you tell him under what circumstances the Company would determine it- A. No, sir. Q. ar whether it would make any difference whether the vote went Union or no Union9 A. I told him it wouldn't make any difference where it went. I said, "There won't be any more of that." I said, "I know that they are going to discontinue that because you fellows have abused it." I said, "They can't continue to pay a guy that's off work because he's got a hangover." I said, "They can't operate like that and get any work out." Said, "If they were running a thousand tons a day," I said, "They could probably afford to pay some guy when he is off down," but I said, "They can't afford to pay it when they are going into the red." I said, "They are going to discontinue it," and I told him that, that was prior to the election, yes. Q. And you say you told him that they were going to discontinue it regardless of how the election came outs A. Yes, sir, I certainly did. Fowler testified that when Lassiter asked him about a month or so before the election what Respondent intended to do if the Union won the election, . I said, "Well, how does it look on the election? I said, "Who do you think is going to win, the Company or the Union?" Well, naturally he always told me that the Union was going to win, which I said, "Well, you might be right and you might not be." Now, it was going on as to what the Company, I think I brought it up, or he brought up, one of us brought it up, what the Company was going to do. I said, "Well, I don't know what they are going to do." I said, "I know what they can do." I said, "They can shut it down tomorrow, and just pump water" I said, "That's what they can do." And he, which was mentioned, he says, "Well, do you think they'll do that to break the Union?" I said, "They could." I said, "They could shut it down to break the Union." I said, "They could lay off and break the Union." I said, "They could not sign a contract and probably break the Union." I said,, "There is a lot of possibility what they could do, but what they are going to do, I don't know." And I actually didn't know. Lilly testified that: He never told any employee that he would be better off without a union ; he never told any employee that he would be laid off or the mine would be closed if the employees "went union"; and he never asked any employee whether be UNITED NUCLEAR CORPORATION 975 was for or against the Union or inquired how any employee intended to vote in the election. Lilly further testified that he never heard Fowler tell Gallegos that the employees would lose certain benefits if the Union "was voted in"; that he did hear Fowler tell Gallegos that Respondent was going to discontinue the "Unavoidable Absence Plan" regardless of the outcome of the election because the employees had abused the plan. Smith denied that he ever told any employee that the employees would be fools to cast their votes in favor of the Union; that he never "called anybody [at the Cliff- side mine] a fool or implied that any man out there was a fool"; and that with respect to the subject of union dues, he "probably said," As to union dues, being taken by check-off I probably said it to 99% of the crew, that I didn't believe the Company would go along with taking union dues off of check-off, no matter how the election-you know, if they were voted back in, because that was already a Company policy at the time, I believe. They weren't taking the union dues any more out of the payroll deduction. And as for union security clause, I didn't believe that the Company would give a union security clause, and that was no secret, that was more or less of a public announcement. Again, I would say that I told 99% of the crew. Smith testified that he never told the employees that Respondent would not agree to any form of union-security clause in any contract which might be reached with the Union; that he never discussed a contemplated layoff with any employee, because he did not know that Respondent contemplated laying off any employee; and that he never told any employee that if the employees voted against the Union, Respondent "would not go through with the contemplated layoff." Smith then testified as follows: Q. Did you ever tell the employees that if the union were voted back in and there were any layoffs that the Company would not transfer any men to other mines? A. I was notified-I had no idea that there would be any layoffs, nobody had ever told me that there was going to be a layoff, or a layoff pending. My best friend was probably the union president, the Company knew this, and so if there was anything told, they sure as hell didn't tell me, but I might have made a statement at one time, now, this I wouldn't say who I made it to, because that's impossible for me to say. I didn't say anything about a layoff, I might have said, in the event of a mine shutdown or when these mines are worked out. Now, it was common sense, that is the only union United's got, and they had no reason why they had to transfer men once they shut a mine down. If you transfer a man, it's because you want to, I mean it's out of the goodness of your heart, and I think it was [Bokum] 20 who got up and said, "If you put your faith in me, we'll take care of you." He made that statement to the full group of men standing there in the drive. They heard as much about it as I did, and he said, "If you put your faith in the union-in fact, he used a little stronger term before the word union. Well, the impression that he gave when he talked to them all was, "If your faith is in us, we'll take care of you." "If your faith is in the union, let the union take care of you." This is the implication I got from hearing Mr. [Bokum] talk that day, and everyone heard the same thing I heard. Regarding his conversation with Dominguez, Smith testified as follows: Q Now, Mr. Smith, an employee by the name of Dominguez testified here yesterday that some time prior to the election you came up to him and Jose Mondragon and asked them how they thought the election was going to come out, and told them that if the union was voted back in, that none of the men would be transferred to other company properties Did you make any such statement as that to Dominguez and Mondragon or both? A. I don't really remember. We-I talked to so many men and so many times a day, one thing I can remember about Sammy Q. Sammy who? A Dominguez. The first thing he asked you when you walked in was "Smitty, what's going on?" "Hell, I don't know, I come in here to find out." That was darn near a standing opening speech between the two of us. He'd say "Come on, Smitty, tell me'something." "Hell, the only thing I know is coming from the miners, you let me know what is happening now." And that was just about a standard procedure with us as to conversations we got into. Again referring to the fact that you thought that I said there would be no transferring if the union 20 Respondent's then president. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD came in, the Company had just got through transferring a bunch of men during that time from the Sandstone Mine to the Rare Metals Mine. They transferred union men there, and in the event of the close down, I still don't believe, I'll say in the nineteen or twenty minutes, I honestly didn't believe that if there was a union in there that they wouldn't transfer the men. Q. You say at that time the Company had just got through transferring some men to the Rare Metals Mine? A. Well, in the vicinity of that, yes. Transferred the men from the Sand- stone Mine to the Rare Metals Mine. Q. Rare Metal Mine is also the same mine known as the San Mateo Mine9 A. Yes. In the light of my observation of Lilly, Fowler, Smith, Dominguez, Lassiter, Cummings, Gallegos, and Velarde while each was on the witness stand, and after a very careful examination of the entire record, I find Lassiter's, Cummings', Gallegos', Dominguez', and Velarde's versions of their respective talks with Lilly, Fowler, an. Smith to be substantially in accord with what was said. This finding is based mainly, but not entirely, on the fact that Lilly, Fowler, and Smith each gave me the distinct impression that he was studiously attempting to conform his testimony to what he thought to be the best interest of the Respondent. On the other hand, Lassiter, Cummings, Gallegos, Dominguez, and Velarde each particularly impressed me as being one who is careful with the truth and meticulous in not enlarging his testimony beyond his memory of what was said on the foregoing occasions.21 On July 31 the election was held among the 135 Sandstone and Cliffside unit employees. Of the 125 employees voting, 81 cast ballots in favor of the Union and 44 against. On August 10 the Regional Director, for and on behalf of the Board, certified the Union as the collective-bargaining representative of all the employees in the agreed to appropriate unit. On August 3 Respondent's counsel telephoned Frantz and suggested that a date be fixed for the holding of a negotiating meeting as soon as convenient. Frantz replied he wanted to wait for the Board's certification before entering into negotia- tions. The parties finally agreed to meet on August 17. Respondent's counsel, during the telephone conversation referred to immediately above, informed Frantz that Respondent was anxious for an early meeting in order to discuss the elimination of the "Unavoidable Absence Plan" then in effect. On August 5 Turberville telephoned Frantz and said "he would like to talk about the unavoidable absence pay and that he had been driven to the point where it would have to be discontinued, that he had lived up to his oral agreement with the Union and that things was [sic] really bad, there being a lot of abuses ... that he was post- ing a notice" to the effect that no further unavoidable absence pay would be allowed. Frantz replied, to quote from his testimony, "I told him that I felt that it was a matter of negotiations but if he felt that way about it why he would have to use his own judgment on it, ... but if he felt this way about it that he would have to do as he seen [sic] fit about posting a notice." Frantz further testified that he also informed Turberville that he still thought the question of the elimination of the unavoidable absence pay was "a matter of negotiation but that he [Turberville] would have to do what he felt was best, what he wanted to do about it." After the above-mentioned Turberville-Frantz telephone conversation, the follow- ing notice, over the signature of Turberville and dated August 5, was posted on Respondent's Cliffside, Sandstone, and San Mateo bulletin boards: The Management gave the Union it's [sic] word that no changes would be made until after the election. The Company has carried out this stipulation exactly. We have lived with unreasonable, abuse and intolerable situations concerning this Unavoidable Absence clause in the old contract. The Company has notified the Union on the action it is taking. Effective August 5, 1964 the Company is revoking this plan. All conditions of this plan are cancelled. 21 This is not to say that at times Lassiter, Cummings, Gallegos, Dominguez, and Velarde were not confused on certain matters or that there were no variations in their objectivity and convincingness But it should be noted the candor with which each of them admitted that they could not be certain as to dates, times, or the exact words used, only serves to add credence to what a careful study of their testimony shows as to what they honestly believed to be the facts. UNITED NUCLEAR CORPORATION 977 My records will show the abuse and intolerable situations that exist. This action has nothing to do with the outcome of the election whatsoever. Under the circumstances , I am convinced , and find, that Respondent, by the dis- continuing the unavoidable absence pay on August 5, did not violate Section 8 (a) (1) of the Act. This finding is mainly based upon: ( 1) Frantz' implied acquiescence made during the aforementioned August 5 telephone conversation ; ( 2) the fact that on several occasions , commencing with the May 11 meeting , Turberville and Frantz discussed the matter ; ( 3) the fact that Frantz agreed that the plan was being abused by the employees and in its place he suggested thatean insurance plan be substituted; and (4 ) the fact that the plan, - itself, gave Respondent the absolute right "to admin- ister, interpret, revise or revoke any and all provisions" thereof. The first bargaining meeting took place on August 18 . During the meeting the parties went through the expired 1962-64 contract. Each party stated its position respecting various items therein . Frantz, the Union's spokesman , offered to accept the terms and conditions of the then-expired 1962-64 agreement in lieu of a new contract. Respondent, however, rejected this offer. During the discussion, which then ensued , Respondent's spokesmen ( its counsel and Turberville ) stated that Respondent had no intention of entering into any contract containing a clause respect- ing severance or layoff pay because "it was not Company's policy to [pay] lay-off pay." Respondent then announced that it had been working upon a contract pro- posal, but it needed some additional time to get it into final shape for presentation. During the course of the aforementioned meeting, Respondent 's vice president, William A. Buchecker, announced that: Respondent intended to lay off some employ- ees, reduce its production, and commence shipping some ore from its ore stock- piles; he did not then know when the layoff would occur, but it would occur as soon as final details had been worked out, and he did not then know how many employees would be laid off, but that perhaps as many as 50 percent of the employees might be so affected . When the Union requested more information concerning the con- templated layoff, including the date when it would occur , and the number and the names of the employees to be laid off, Buchecker replied that the requested informa- tion could not then be furnished because the details thereof had not been finally determined . When asked by a union committee member if the employees who were to be laid off in the forthcoming layoff would not receive layoff or severance pay, Buchecker said, "That is correct, they will not be paid layoff" pay. The meet- ing concluded with the understanding that the parties would meet the following morning. At a meeting between the parties held on August 19, Respondent presented a contract proposal. After discussion had occurred regarding the various items of Respondent's contract proposals and the Union 's contract proposals, Frantz inquired about the omission from Respondent 's proposals of the layoff or severance pay pro- vision. Respondent's counsel or Turberville replied that Respondent "didn't have any intention of putting" such a clause in any bargaining agreement which might be reached. On or about August 21, Manuel Duran , the then president of Local 5605, asked Leon Gregory, superintendent of Cliffside mine, if he could have a list of the names of the persons to be laid off as soon as Gregory received such a list . Gregory replied, to quote from Duran's testimony, which, in the main, is substantially in accord with Gregory's version of his talks with Duran, "he didn't see no reason why the Com- pany should object [to Duran having such a list], and as soon as he got a list he would send me one." Commencing on August 25 or 26, Respondent , according to Gregory's testimony, "worked on the list up until the night of the 27th . At that time we had one list, our general seniority list. We just crossed off the men that we were going to lay off and kept the men that we were going to keep, and the men we were going to transfer to Sandstone , we kept them on a list, so the list that I had was a general seniority list with the names crossed off that we were going to let go." About 5 or 10 minutes before the commencement of the August 28 day shift, Duran was informed by an employee that he had been laid off . Duran immediately went to Gregory 's office, and asked him for a copy of "the list that he had promised earlier to give me as soon as he got one. " When Gregory replied that he could not furnish Duran with a copy of the list at that time , but could possibly give him one the following Monday, August 31, Duran replied that by that time he would know who had been laid off What he wanted to know then was who was slated for layoff Gregory again refused Duran's request. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 31, to quote from Duran's credited testimony, the following took place: I walked into the change room, the boss' change room, and I saw Mr. Drips, the mine foreman, and I asked for Mr. Gregory and I was told that he was underground, getting ready to go underground, and so I told Drips what I was there for, that I was there to get a list of the names of the men that had gotten laid off, which Mr. Gregory had promised to give me earlier. And he says, "Well, Gregory is not here, but I'll make up a list for you." So we went in the office and he made out a list and gave me a list. .Q. Did you and Drips discuss any other matters at this time? A. Yes, when Mr. Drips handed me the list of the employees that had gotten laid off, I handed to him about six grievances that had been filed by men that had gotten laid off. Q. And what kind of grievances did you hand Drips9 A. Well, they were grievances filed by men who were senior in date of hire to some of the men that were kept on the job. Q. What did Drips do or say? A. He started to look through them, and he asked me, "are they all the same?" And I said, "Yes, they are all about the same." And I told him if he could make it a point to see that Mr. Gregory got a hold of them, and he said that he would, that he would put them on Mr. Gregory's desk so that when he came up from underground he could go through them and see. Q. Did you have any further conversations that day with any other persons connected with management concerning these grievances? A. Yes, that evening after work about 4:00 o'clock when I came out from underground, I saw Mr. Gregory, and I asked him if he had seen the grievances that Mr. Drips had laid on his desk for him, and he said that he had, and I asked him, "Any comment?" And he says, "No, no comment, everything is okay." On September 1 and 2, Duran handed Gregory about nine additional written grievances. Altogether 15 grievances were submitted to Gregory by Duran. Each grievance was signed by an individual grievant and each grievance related to the August 28 layoff, to Respondent's failure either to pay severance or layoff pay, or to follow seniority in selecting employees for layoff Under date of September 1, Patrick Bodoh, the then chairman of Local 5605's grievance committee, filed a blan- ket grievance on behalf of all the laid-off employees. With respect to the 15 grievances filed with him by Duran, which grievances were subsequently forwarded to Turberville, Gregory told Duran that: He could not do anything about the grievances; Respondent did not have a bargaining contract with the Union; be would take up the grievances with Turberville; and Turberville "was the only one that could give [Duran any] satisfaction." Shortly after the filing of the above-referred-to grievances, Bodoh telephoned Turberville inquiring whether he had received the grievances. When Turberville replied in the affirmative, Bodoh asked what Turberville intended to do with respect to them. Turberville then stated, to quote from his testimony, "I told him at that time I didn't know exactly what I would do with them. I reminded him that we felt that a contract wasn't in existence but we did feel an obligation to take care of these grievances and I also went ahead and talked to him and told him that what the men were grieving for and that we had tried to lay off in accord with seniority to the best of our ability. And I also told him that there was again-that we were not operat- ing with the contract then and that the company did not propose to pay layoff pay." On September 3 the Union filed a charge with the Board which is the basis of this proceeding. The manner with which grievances were handled prior to the expiration of the 1962-64 bargaining agreement was, as testified to by Turberville, as follows- ... After I received the grievance and reviewed [it] within a five day period I render my answer in writing and then after my answer in writing the grievance committee would meet with me with an International member present and then we would go ahead and iron out the grievance. Q. (By Mr. Pickering.) Was this meeting with the grievance committee and the International representative on grievances held at any given period of time? A. We didn't have a regular meeting of once a month but primarily they usually was once a month. We would have one of these meetings but it wasn't a set date. In other words, we could go two or three months and never have a meeting. UNITED NUCLEAR CORPORATION 979 After the expiration of the aforementioned contract, especially with respect to the 15 grievances filed regarding the August 28 layoff, Respondent dealt directly with the individuals involved either through Turberville, Greenslade, or the grievants' immediate supervisors, without the presence of, or notification to, the Union. Upon the basis of the discussions held between the grievants and Respondent's supervisory representatives, the grievances were disposed of without notice to the Union, the statutory collective-bargaining representative of the grievants involved. At a bargaining meeting held on September 10, the Union presented its first formal proposed contract. With reference to the question of layoff pay, the respective posi- tions of the parties at this meeting were the same as they had been in the past: to wit, Respondent would not agree to layoff pay in any new agreement and the Union at all times insisted on layoff pay as provided for in the expired 1962-64 agreement. At the aforesaid September 10 meeting, Respondent's representatives queried Frantz about the allegations of the charges the Union filed with the Board on September 3. Frantz refused to discuss the subject, maintaining that the matter was then in the Board's hands and that the Union would await the Board's determination with respect to matters set forth in the charge. The parties met on several occasions after September 10, and tentative agreement was reached with respect to certain minor grievances, but no agreement was arrived at regarding any major issues. Concluding Findings The Board and the courts have been uniformly in accord with the doctrine that it is the duty of an employer to enter discussions with respect to collective bargaining "with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of employment." 22 Respondent's conduct in this regard fell far short of this standard. Respondent failed utterly to discharge its statutory duty to bargain collectively with the Union as the representative of the employees in the appropriate unit, in good faith It is clear that Respondent at no time during its negotiations entertained any intention of entering into an agreement with the Union. The fact that Respondent entered'into negotiations with a mind hermetically sealed against even the thought of entering into an agreement with the Union is evidenced, in part, by Turberville's state- ments contained in Respondent's letter of July 29, addressed "UNITED NUCLEAR EMPLOYEES AND THEIR FAMILY," and mailed to each employee a day or two before the aforementioned election. We know that the Union always insists on a check-off and Union security clause. We know this is the most important thing to the Union from their standpoint. As a matter of principle the Company does not believe in forcing its employ- ees to join and pay the Union, neither does the Company believe in acting as a collection agent for the Union. We have no intention, even if a Union is voted back in, of ever agreeing to any Union security or check off clauses. We also believe that the Union would make you go on strike before they would agree to any contract without any check off or Union security clauses Thus we feel that if a Union is voted back in out enzplolees would definitely be called out on a strike before very long. It is for this reason I felt you should know our position and theirs before you vote. That the Company would not be hurt but benefit by a strike. However we are interested in our employee's [sic] welfare and do not want to see them hurt and have to suffer a sti ike. Therefore I want to personally ask you to vote against the Union and any strikes Further evidence that Respondent lacked any intention of entering into discussions with the Union with an open and fair mind and with a sincere purpose to find a basis of agreement is its absolute refusal to bargain with respect to such matters as the August 28 layoff and refusal of payment of severance or layoff pay. On August 28, after the 1962-64 contract had expired and negotiations for a new contract were in progress, Respondent unilaterally and without prior discussion with the Union laid off about 40 employees The fact that the layoff was for economic reasons, Respondent, nonetheless, failed to meet its statutory obligation to notify and consult with the Union concerning its decision. Buchecker's statement at the August 18 22 Globe Cotton Mills v N.L R B , 103 F. 2d 91, 94 (C A 5) ; in accord, N L.R.B. v. Athens Manufacturing Company, 161 F. 2d 8 (C A. 5) , N L.R B v. Reed & Prince Manu- facturing Company, 118 F. 2d 874 (C A. 1) ; N L.it B. v. Highland Park Manufacturing Company, 110 F. 2d 632 (C A. 4). 217-919-66-vol. 15 6-6 3 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining meeting that a layoff was contemplated was too casual and too vaguely worded to be significant. Buchecker's statement constituted no more than an announcement that Respondent intended to lay off some undisclosed number of employees of some unknown time in the future. In fact, the number of persons to be laid off and the identity of the persons to be selected were concealed from the Union until after the decision had been made and said decision had been carried out. This is not to say that the Union must approve the employees' representative before an employer may effect a layoff for business reasons, but it is to say that a chance to bargain must be afforded before an employer sets in motion an act affecting the hire and tenure of his union workers' employment. This is so because "Such uni- lateral action minimizes the influence of organized bargaining. It interferes with the right to self-organization by emphasizing to the employees that there is no necessity for a collective-bargaining agent." 23 The fact that Respondent desired to impress upon its employees that they needed no bargaining representative and would fare much better if they relied upon Respondent's generosity was clearly brought home to them by Buchecker's July 23 letter to the employees wherein he said, "If you and your family want to continue to enjoy wages, fringe benefits and conditions BETTER THAN any union plant in the area without having to suffer the union financial burden, we urge you to vote AGAINST union representation " It is well settled that an employer who is under the statutory duty to bargain with the representative of his employees violates this duty when he effects unilateral altera- tions, without consulting the representative, with respect to matters regarding which he is required to bargain.24 Accordingly, I find that Respondent violated the Act by unilaterally laying off about 40 employees on August 28 The conclusion that the unilateral August 28 layoff vio- lates Section 8 (a) (5) and (1) of the Act is not altered by the fact that there was no contract in effect at that time.23 Also illustrative of the inescapable conclusion that Respondent was giving the Union, as the court said in N L.R.B. v. Athens Manufacturing Company, supra, "a runaround while purporting to be meeting with the Union for the purpose of collective bargaining," is the fact Respondent's representatives spent more time attempting to ascertain the Union's evidence to substantiate the charge it had filed with the Board on September 3 than in discussing matters which were proper subjects of collective bar- gaining. In fact, whenever the Union desired to discuss severance or layoff pay, Respondent refused to do so, saying that it was against "Company policy" to enter into any agreement containing such a provision. I further find that by Smith's, Fowler's, and Lilly's respective statements to Cum- mings, Lassiter, Velarde, Gallegos. and Dominguez, as found above, Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act, thereby violating Section 8(a)(1) thereof. I recommend that the complaint, as amended, be dismissed insofar as it alleges unfair labor practices not specifically found herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, as described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, on August 18, 1964,26 and at all times thereafter, has refused in good faith to bargain collectively with the Union as the representative of the employees in an appropriate unit, I will recommend that Respondent, upon request, bargain collectively with said labor organization as the exclusive representative of all employees in the unit heretofore found appropriate, and if an agreement is reached, embody such understanding in a signed agreement. 23 Maaj Department Stores, d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 385 Cited with approval In N.L R B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. N.L.R.B. v. Beane Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736; N L R.B. v. Crompton-Highland Mills, supra; Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 (C.A. 5) ; Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO (Bethlehem Steel Co., Shipbuilding Div.) v. N.L.R.B., 320 F. 2d 615 (C.A. 3). 21 See Industrial Union of Marine, etc. v. N L R.B., supra. 20 The date of the first bargaining session. UNITED NUCLEAR CORPORATION 981 Except for the unlawful conduct found above, the record does not disclose that a danger exists that Respondent in the future may commit other unfair labor practices unrelated in kind to those found. Under the circumstances, I will not recommend that the Board issue the usual broad cease-and-desist order. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Nuclear Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, and Local No 5605, United Steelworkers of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. All Respondent's Cliffside and Sandstone mines production and maintenance employees, excluding professional, administrative, and clerical employees, guards, and all supervisors as defined in the Act, constitute, and at all times material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material the Union has represented a majority of Respondent's employees in the unit found above to be appropriate and by virtue of Section 9(a) of the Act, the Union has been, and now is, the statutory collective-bargaining repre- sentative of all the employees in said unit for the,purposes of collective bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, or other terms and conditions of employment. 5. By unilaterally laying off about 40 employees on August 28, 1964, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act 6. By refusing on August 18, 1964, and at all times thereafter, to bargain collec- tively with the Union as the statutory representative of the employees in the appro- priate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not engaged in other violations of the Act as alleged in the complaint, as amended. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pur- mant to Section 10(c) of the National Labor Relations Act, as amended, I recom- mend that United Nuclear Corporation, Grants, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the statutory collective- bargaining representative of the employees in the above-described appropriate unit with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment. (b) Unlawfully interfering with, restraining, or coercing its employees, threaten- ing them with various reprisals if the Union won the aforementioned Board-conducted election, advising its employees that they would fare better if they relied solely on its generosity rather than to rely upon the Union's chances of securing better working conditions and other benefits for them, and otherwise unlawfully attempting to wean its employees away from the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Sec- tion 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively, to the extent and at all times required by law, with the Union as the statutory representative of the employees in the above- 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and embody in a signed agree- ment any understanding reached. (b) Post at its Grants, New Mexico, mines copies of the attached notice marked "Appendix." 27 Copies of said notice, to be furnished by the Regional Director for Region 28, shall, after being duly signed by Respondent's representative, be posted 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 alteied, defaced, or covered by any other material (c) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision what steps Respondent has taken to comply therewith 28 It is further iecommended that unless on or before 20 days from the receipt of this Decision Respondent notifies said Regional Director, in writing, that it will comply with the above recommendations, the National Labor Relations Board issue an order requiring it to take such action It is also recommended that the complaint, as amended, be dismissed insofar as it alleges unfair labor practices not specifically found herein. 27 In the event that 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 further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 28 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken in compliance." 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 our employees that: WE WILL NOT unlawfully interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Rela- tions Act, nor will we advise our employees that they would fare better if they relied solely on our generosity rather than to rely on United Steelworkers of America, AFL-CIO, and Local Union No. 5605, United Steelworkers of Amer- ica, AFL-CIO, chances of securing better working conditions and other benefits for them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor orga- nizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL bargain collectively with the above-named labor organization as the statutory representative of all our employees in the bargaining unit described below with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All our Cliff side and Sandstone mines production and maintenance em- ployees, excluding professional, administrative, and clerical employees, guards, and all supervisors as defined in the Act. All our employees are free to become or remain members of the above-named labor organizations or any other labor organization. We will not discriminate in MOCK ROAD SUPER DUPER, INC . 983 regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. UNITED NUCLEAR CORPORATION, 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 1015 Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 247-2520. Mock Road Super Duper, Inc. and Retail Clerks Union Local 1059, Retail Clerks International Association , AFL-CIO. Case No. 9-CA-3309. January 18, 1966 DECISION AND ORDER On April 19, 1965, Trial Examiner John H. Eadie issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, Respondent filed excep- tions to the Decision and a brief in support thereof. The General Counsel also filed a brief in support of limited exceptions to the Decision. The National Labor Relations 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, the briefs, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. We agree with the Trial Examiner that Respondent unlawfully interrogated its employees by asking them whether they thought they needed a union and threatening them with stricter work rules and loss of employment if the Union was successful, thereby violating Section 8(a) (1) of the Act. However, contrary to the Trial Examiner, we find that Respondent's no-solicitation rule was unduly broad in scope. 156 NLRB No. 82.