Certain Teed Products Corp.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the R*s ogdent has engaged in unfair labor practices within the meaning of Section ,,a) (1) of the Act 4 84 dascrimmatmg with respect to the hire and tenure of employment of Gary A. M'achaby the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and ( 1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting cam merce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ] Certain Teed Products Corporation and United Stone and Allied Products Workers of America, AFL-CIO-CLC Cases 16-CA- p383 and X387 October 19,1966 DECISION AND ORDER On Ju e 13, 1966, Trial Examiner Ivar H Peterson issued his Decision in the above entitled proceeding, finding that the Respond end had engaged in and was engaging in certain unfair labor prat tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examen er's Decision He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support, and the General Counsel filed cross exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three member panel JOhairlrian McCulloch and Members Fanning and Jenkins] The board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no pre]udicial error was committed The rulings are hereby affirmed The Board has considered the entire rec. otd) In this case, including the Trial Examiner's Decision, the excep tiolis and, brief, and the cross exceptions, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, except to the extent modified herein Lie find it unnecessary to reach the question raised in the General Counsel a cross exdeptidn I concerning a continuing duty to bargain at least until August 12 1,965 by reason of the time consumed by the Respondent in requesting review of the Regional Director a decision at the beginning of the certification year The Trial Examiner treated this problem at footnote 16 of his Decision Without passing upon that facet of the 8(a) (5) violation we fully agree with the Trial Examiner that the record here establishes a refusal to bargain as of June 26 1965 within a period of 1 year after the Union e Jqly 2 19641, certification As to cross exception 2 We find merit in the General Counsel s contention that pendency k nnieniedied unfair labor practices-in this ease extensive 8(a)(1) and ( 8) violations-- found by the Board in its prior decision 153 NLRB 495 additionally warrants the Eliding of 8(a) (5) and (1) violation based upon the Respondents July 6 1965 withdrawal of Wognitlon Itseirbed to the union s apparent loss of majority 161 NLRB No 11 CERTAIN-TEED PRODUCTS CORP 89 [The Board adopted the Trial Examiner's Recommended Order and dismissed those portions of the complaint as to which no viola- tions have been found] TRIAL EXAMINER S DECISION STATEMENT OF THE CASE Upon charges duly filed 1 by United Stone and Allied Products Workers of America AFL-CIO-CLC herein called the Union against Certain Teed Products Corporation herein called the Respondent, the General Counsel of the National Labor Relations Board by the Acting Regional Director of Region 16 issued a consolidated complaint against the Respondent on August 11 1965 As amended at the hearing the complaint alleged that the Respondent had engaged in unfair labor practices violative of Section 8(a)(1) (3) (4) and (5) of the Act In its answer the Respondent denied that it had engaged in any of the alleged unfair labor practices Pursuant to notice a hearing was held before Trial Examiner Ivar H Peterson in Hillsboro Texas on October 27 to 29 and November 15 to 19 1965 All parties' were represented by counsel and participated in the hearing Briefs submitted by the General Counsel and the Respondent have been duly considered Upon the entire record in the case and from my observation of the witnesses and their demeanor I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent a Maryland corporation maintains its principal office and place of business in Ardmore, Pennsylvania and plants in several States including the plant at Hillsboro Texas with which this proceeding is concerned , where it manu- factures various asbestos products During the year preceding issuance of the com- plaint the Respondent manufactured and shipped from the Hillsboro plant finished products valued in excess of $50 000 directly to points outside the State of Texas and purchased and delivered to this plant raw materials valued in excess of $50 000 from points outside the State of Texas The Respondent admits , and I find that it is engaged in commierce within the meaning of Section 2(6) and (7) of the Act. A THE LABOR ORGANIZATION INVOLVED United Stone and Allied Products Workers of America, AFL-CIO-CLC is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and issues This is the third unfair labor practice proceeding involving the Respondents Hillsboro plant instituted by the Union after it commenced organizational activities in December 1961 In the first case decided by the Board on June 30 1964 2 It was found that by various acts and statements occurring in 1962 and 1963 the Respond ent had violated Section 8(a)(1) of the Act and, in violation of Section 8(a)(2) of the Act had in January 1963 formed and thereafter dominated a Suggestion Committee The Board further found that the Respondent had not violated Section 8(a) (3) and (4) of the Act In the second case decided by the Board on June 25 1965 3 the Respondent was found to have interfered with the Section 7 rights of its employees by various acts and statements both before and after a Board conducted election held on May 28 1964 and on the day after the election had discnmina tonly discharged two employees and at about the same time unlawfully changed the duties and reduced the wage rate of another employee Other allegations of violation of Section 8(a) (1) and (3) were dismissed I In Case 16-CA-2888 charges were filed on June 28 1965 and in Case 16-CA-2387 on June 30 1965 ' Certain-Teed Products Corporation 147 NLRB 1517 ' Certain-Teed Products Corporation 158 NLRB 495 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issues in the present proceeding are I Whetl#er the Respondent violated Section 8(a)(3) and (4) of the Act (a) by discharging Mickey Crist in May 1965 (b) by refusing to recall or rehire four employees-J B Bradshaw Clemmie Smith Eugene Knox and James C Riggs- m June 1965 and (c) by refusing and failing to promote James Corbin to a better rated job in August 1965 2 Whether the Respondent unlawfully refused to bargain with the Union certi fled on July 2 1964 as the exclusive representative of the Respondents production and maintenance employees by engaging in surface bargaining and refusing to make economic counterproposals and by withdrawing recognition from the Union on July 6 1965 and unilaterally placing in effect a wage increase on July 8 1965 B The alleged discrimination in employment 1 The discharge of Crist Mickey Crist was first hired by the Respondent in September 1964 as a laborer in the manufacturing department under Foreman William Cole In January 1965 after receiving a 10 cent increase at the end of his 90 day probationary period Crest was assigned as a floorman at the end of the pipe manufacturing line at no increase in pay His duties in this capacity included stenciling pipe to indicate the date size and shift assisting in operating an overhead hoist used to load pipe from the end of the conveyor line upon large metal trays and then by means of a fork lift loading the trays of pipe on the autoclave train prior to the pipe being placed in the oven and the transporting and stacking pipe on the loading dock Crest signed a union authorization card in about December 1964 shortly after completing his 90 day probationary period In April 1965 he authorized A J Ship pey the union representative engaged in organizational activities at the plant to include his name in a charge (Case 16-CA-2331) filed by the Union on April 29 alleging that the Respondent since October 30 1964 had discriminatorily withheld wage increases from Crist and four other named employees Crist testified that after he was named in this charge James Landrum general foreman of the manu factunng department observed his work more closely than theretofore So far as the record shows Crist engaged in no union activity except as stated above 4 On May 26 1965 Crest caused considerable damage to the door frame of an overhead door hitting it with an empty tray as he was backing the forklift through the doorway coming from the dock area 5 After Plant Manager Naaman Rhoades and General Foreman Landrum had Inspected the damage Landrum conferred with Foreman Cole later in the day and shortly before 4 p in Cole discharged Crist at the direction of Landrum According to Cole he and Landrum first con sidered giving Cnst a 5 day suspension but concluded that wouldn t do any good and thereupon agreed to terminate him Jesse Hunt still employed as a floorman with duties similar to those of Crist but on the following shift and who was a sup porter of the Union testified that he spoke to Cole about 4 15 p m after observing Cole speak to Crest and asked Cole what was the trouble with Mickey Cole replied that he had to lay him off because matters had come to the point where it was either him [Cole] or Mickey The General Counsel contends that Crest s discharge was in fact brought about because of his union activity and in reprisal for having permitted his name to be included in the charge filed a month earlier alleging that he and others had been unlawfully deprived of wage increases The Respondents defense is in substance that the May 26 incident involving damage to the door frame was but the final inci dent of several involving Crist that had occurred after he became a floorman in January and which demonstrated that he was a careless workman About a month after being assigned the job of floorman at the end of the pipe conveyer line Crest admittedly damaged an air duct by raising the forklift too high while moving an empty pip-, tray For this so he testified Foreman Cole cautioned him to be more careful Crist also testified that in March he bent an empty pipe tray by running into it with the forklift loaded with a tray of pipe it was necessary to send the bent tray out of the plant to be repaired On another occasion during the * A complaint was issued in Case 16-CA-2331 on June 30 1965 hearing thereon was indefinitely postponed on September 8 and on October 29 during the course of the hearing in the instant matter the Union s request to withdraw the charge was granted by the Acting Regional Director 5 John Taylor former maintenance mechanic on Cole s shift and president of the Union local at the time estimated the cost of repairing the damage at $80 or $90 CERTAIN-TEED PRODUCTS CORP 91 winter he ran the forklift oft the dock with no apparent damage being unable to stop its movement because there was ice on the dock Again Cole cautioned him to be careful One aspect of his job required that he stencil pipe indicating the class of pipe the date and the shift on which it was produced and to cut the proper stencil for this purpose Foreman Cole testified that Crist was forever getting the wrong date on the stencils and also misclassifying pipe Crist testified he had been corrected about a month before his discharge for smearing the ink while applying stencils but was unable to recall whether Cole had cautioned him about incorrect dating Cole further testified corroborated by employee Hunt who performed the same job as Crist on the following shift that Foreman Bernart Lenart (also Leon and in the transcript) had several times complained to Cole about the untidy and disorganized condition in which Crist left the dock area Crist acknowledged that such complaints had been called to his attention by Cole more than once Cole also testified that Crist stacked pipe in the trays in such fashion that the pipe would hang over the ends of the trays with the result that when the trays were loaded in the autoclave the protruding pipe were apt to be broken by being bumped into pipe in the other loaded trays Crist admitted that Cole had warned him about stacking the pipe properly inside the trays Finally Cole testified that Cnst took considerably more time than was allowed on break periods John Taylor who had been the shift maintenance mechanic on Foreman Cole s shift until he quit late in June 1965 and had been president of the Union local dur iiig the latter part of his employment testified to having three conversations with Cole regarding the wbrk performance of Cnst and his discharge Early in May Cole told Taylor that Plant Manager Rhoades had talked to him (Cole) about Mickey Cnst and some of the accidents in the plant apparently Rhoades had mistakenly b.dieved that Crist rather than another forklift operator had damaged a guide rail with the forklift Later Cole told Taylor that Roades and Landrum were `watching James Corbin and Mickey Crist whereupon Taylor went and told both the boys to do their best and perk up After Crist s discharge Cole told Taylor that he really didn t want to fire Mickey and had recommended a 5 day suspension but that Plant Manager Rhoades said that he thought it would be best if we could just get rid of Mickey now and let him go I credit Taylor whose testimony was uncontradicted There is evidence that other forklift operators on occasion had mishaps resulting in damage In one instance the operator was suspended for 3 days in other instances no disciplinary action was taken The evidence however is too fragmentary to per and a comparative evaluation of the circumstances The facts set forth above which rest upon testimony that is virtually uncontro vtrted establish that Cnst was a somewhat careless and inattentive workman In the course of about 5 months he had four mishaps in operating the forklift three of them resulting in damage to plant structures or facilities In addition Cost conced edly had been cautioned about the manner in which he placed pipe in the autoclave trays and maintained the dock area Foreman Cole s testimony that Cnst was always taking too long on his breaks while uncontradicted impressed me as some what exaggerated both With respect to the frequency of such occurrences and the length of time Crist overstayed the allotted break period However I accept Cole s testimony that on occasion Crist extended his break period that Cnst s relief man had registered complaints about this with Cole and that Cole had spoken to Cnst about it So far as it appears Crist s union activity was limited to signing an authorization card and in April authorizing his name to be included with those of other employ ees in the charge filed by the Union alleging discrimination in that raises had been withheld Presumably Crist also attended union meetings as did other union adher ents Aside from the charge which listed Crist s name first as one of five employees allegedly discriminated against there is no evidence that he took a leading role in enlistmg other employees to join in the charge or that any management representa tive or supervisor spoke to him about the charge or about any aspect of union activ ities Two others named in this charge James Corbin and Maxie Riley were still employed at the time of the hearing While the issue is by no means free from doubt I conclude that the General Counsel has failed to establish by a preponderance of the evidence that the Respondent discharged Crist on May 26 1965 because of his union activity or because he had authorized the filing of unfair labor practice charges in his behalf The weight of the credited testimony persuades me that Crist was terminated on May 26 because that day he had caused substantial damage to a door frame by striking it with an empty tray he was transporting with the forklift Considering his 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past mishaps with the forklift and other shortcomings to which his attention had been called during the few months he had worked at the take -off end of the pipe machine I think the Respondent could reasonably conclude that he was careless in the operation of the forklift and generally deficient in the performance of his job and therefore should be terminated It will be recommended that the complaint be dismissed with respect to Cnst 2 The refusal to rehire Bradshaw Knox and Smith Bradshaw Knox and Smith had been first hired by the Respondent as employees in the shipping and receiving department on September 16 1963 They were laid off on May 29 1964 thereafter all three were recalled on one occasion (apparently in July) for 6 days of temporary employment and Bradshaw and Knox later were recalled for 3 days in August Smith was not available on this last occasion when the Respondent sought to recall him Their layoff on May 26 1964 was found by Trial Examiner Nachman in his decision issued March 25 1965 not to have been discruninatonly motivated the Board affirmed this finding in its decision issued June 25 1965 (153 NLRB 495) On Saturday June 12 1965 Bradshaw and Knox having heard that the Respond ent was hiring some employees went to the plant to see Jack Shadle foreman of the shipping and receiving department under whom thy had worked According to Bradshaw and Knox when they asked Shadle whether the Respondent was recalling any former employees who had been laid off Shadle replied in the negative asked whether any new employees were being hired Shadle responded that one man named Russell had been hired 6 Bradshaw testified that when he asked Shadle if he and Knox could file an employment application Shadle replied that it would not do any good as they already had applications on file and that Personnel Manager John Langford is not going to recall any of the old hands that he laid off Bradshaw testified he asked three times why laid off employees would not be recalled and that Shadle answered he did not know why but we re just not going to do any recalling Knox testified to the same effect Shadle according to Bradshaw and Knox informed them that Langford was then at National Guard camp and that nothing could be done until Langford returned Shadle testified that Bradshaw and Knox asked for employment applications and that he told them at that time that so far as knew they still had an application on file but I wasn t positive about it that the person for them to see was Mr Langford, that he was off to camp and would be back and that it appeared to me that they wouldn t need to make an application at that time until they had talked to him Shadle denied that he told them the Company did not intend to recall or rehire anyone who had been laid off On Monday June 21 Bradshaw and Knox returned to the plant . They spoke to a guard stationed in the guardhouse who telephoned Langford s office The guard reported to them that Langford was tied up for the day and would not see anyone 9 Smith testified that be called Langford at his home the evening of June 22 stated he had heard the Company had been hiring and that he `wondered why I hadn t been recalled According to Smith Langford replied that he had hired one or two employees but didn t know whether any more would be hired Smith further testa fled that he told Langford he had not had a chance to come by the plant to put in an application to which Langford replied there was no need for him to do so as he already had one on file In answer to Smith s query about the chances of corn iiig back to work, Langford replied that at that time he did not know that he would have to check with Foreman Shadle and would get in touch with Smith if his work record was satisfactory Smith further testified that he made the call from Union Representative Shippey s motel room where a meeting of some employees was being held and at Shippey s suggestion The Respondents employment policy published in an employee handb9ok pro- vides that seniority and employment status are lost if an employee is absent, by reason of layoff or otherwise for 1 year or a period equal to the total length of employment whichever is the lesser Bradshaw Knox and Smith each had a total length of employment of about 83'a months beginning in September 1963 Accord ing to Langford each lost his seniority and employment status in the middle of 6 A seniority roster prepared by the Respondent as of June 24 1965 shows one Edward Russell in the shipping and receiving department with a seniority date of June 2 1965 T Langford had been at National Guard camp from June 4 through June 20 and June 21 was therefore his first day in the office in 2 weeks CERTAIN-TEED PRODUCTS CORP. 93 May 1965, pursuant to this policy. Therefoie, they were not thereafter carried on the seniority list and, according to Langford, were "in the same category as any- one else seeking initial employment with us." The employee handbook further pro- vides that when additional employees are required, "qualified laid-off employees will be recalled in order of length of service before new employees are hired." Concerning the appearance of Bradshaw and Knox at the guard shack, Lang- ford testified that according to his notes, made at the time, this occurred at 10 a.m. on June 25, rather than at 8 a.m. on June 21 as they testified. In this, I find Lang- ford to be in error, and accept the testimony of Bradshaw and Knox as the record shows Langford was in Dallas attending a negotiation session with the Union at that time on June 25. Langford testified that he was "swamped" when Bradshaw and Knox sought to see him, as this was his first week in the office after National Guard camp, and that he told the guard to tell Bradshaw and Knox he could not see them at that time. He further testified he did not then have any vacancies. With respect to Smith, Langford testified Smith telephoned him on "Saturday morning at 9 a.m., on July 12"-rather than on the evening of June 22 as Smith claimed-and that he told Smith he had a full crew at that time. Langford stated he "made a note in a little calendar book" of Smith's call and placed it in Smith's personnel folder. The notation was not produced. Here again I find Langford to be mistaken as to the date, as July 12, 1965, fell on a Monday and not a Saturday as he testified; moreover, Smith impressed me as having a good recall of the date and the circumstances under which he made the call. I find that Smith spoke to Langford on June 22. Langford testified that Smith was "a real good employee" and that Bradshaw and Knox "were adequate, but in comparison to our other work force, they leave a lot to be desired." He stated that the three men would be considered for reem- ployment and hired if they were the best qualified applicants for the job. He also testified he had not advised Shadle that laid-off employees, including the three here involved, would not be recalled. On June 21, while Bradshaw and Knox were in the guardhouse, and were told Langford was too busy to see them, one R. B. Bearden was also there waiting to be interviewed by Langford. A seniority roster as of June 24, 1965, submitted by Respondent to the Union at the June 25 negotiating session, lists two new employ- ees in the shipping and receiving department, Robert Bearden and Mark Davis, each with a seniority date of June 23, 1965. (As noted above, another new employee, Russell, had been hired on June 2.) I am not convinced that Bradshaw, Knox, and Smith were not rehired or recalled in June 1965 because of their adherence to the Union or because charges respecting their original layoff in May 1964 had been filed. The layoffs were found nondiscriminatory by the Trial Examiner in his Decision and by the Board in its Decision, 153 NLRB 495. All of them had been recalled after their layoff, Brad- shaw and Knox twice and Smith once. It is clear that under the Respondent's established policy these three men had lost their seniority and employment status a month before they sought employment in June 1965. They were not, therefore, entitled to be recalled, and given preference over other applicants for employment, contrary to the impression they entertained as revealed in their testimony con- cerning their conversations with management. In view of this stated policy and the further requirement of written application, and considering that a new employee (Russell) had been hired in the shipping and receiving department on June 2, 10 days before Bradshaw and Knox spoke to Foreman Shadle, the statement ascribed to Shadle by Bradshaw and Knox-to the effect that Respondent was "not going to do any recalling"-is nothing- more than a statement of a long-established pol- icy and does not necessarily connote a discriminatory intent as to Bradshaw and Knox. I accept Shadle's account that they would have to see Langford to find out whether they needed to file new applications in order to be considered for employ- ment, or whether their old applications would suffice for this purpose (as Shadle apparently thought). The reasonable inference, which I draw, is that Bearden and Davis, whose seniority date is June 23, 1965, had filed applications prior to June 21 (when Bradshaw and Knox attempted to see Langford for that purpose) and had in fact been hired by the time Smith talked to Langford the evening of June 22. So far as appears, none of the three men pursued his effort to be reemployed by actually filing a new employment application. Nor is there any evidence regard- ing what, if any, vacancies arose after the latter part of June. I have considered the fact that in prior proceedings the Respondent has been found to have committed substantial unfair labor practices. However, that does 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not automatically taint every subsequent action or permit suspicion to be substi tuted for proof Considering all the evidence I conclude that it falls short of estab lishing that Bradshaw Knox and Smith were discriminatorily refused recall or rehire in June 1965 because they had filed earlier charges of discrimination in connection with their May 1964 layoffs Accordingly these allegations of the coin plaint will be dismissed 3 The refusal to rehire J C Riggs By amendment of the complaint during the hearing the General Counsel alleged that Respondent had discriminated against Riggs by refusing to recall or rehire him on or about June 22 1965 because of his union activity and because he had filed charges or given testimony in the prior proceeding In that case ( 153 NLRB 495) the Board had found in agreement with the Trial Examiner that Riggs had been discriminated against with respect to job duties and compensation from May 29 1964 In November 1964 while that issue was pending before the Trial Examiner Riggs quit the Respondents employ So far as appears Riggs first sought to be rehired by the Respondent on June 21 1965 During the evening of June 21 Riggs without prior arrangement called at the home of Foreman Shadle under whom he had previously worked According to Riggs the sum of the conversation was that he stated to Shadle that he had heard that you re looking for some experienced help out at the plant Shadle replied that one man had been hired and indicated that about nine temporary employees would be hired and that if he got anything good he would give me a buzz Riggs did not attempt to see any other management official Shadle testified that Riggs came to his house said he understood the Respond ent was hiring some people and that he was looking for a soft job Shadle replied so he testified that the Respondent was hiring some new employees and if a new epoxy pipe coating process ever gets going we may be hiring quite a num her of employees There was some talk about Riggs present job construction work and difficulties connected therewith Shadle testified he told Riggs that he would keep Riggs in mind and the conversation then ended Shadle does not do the hiring or interviewing of new employees in his depart ment This function is performed by Personnel Manager Langford The latter tes titled without contradiction that the Respondent has consistently followed the practice of not rehiring permanent employees who voluntarily quit and that his policy applied to Riggs Langford referred to two other employees who had quit and later had been refused rehire pursuant to this policy although they otherwise were desirable workers I find that the record does not support the allegation that Riggs was refused rehire in June 1965 Riggs did not apply to Personnel Manager Langford, who does the interviewing and hiring His only contract was with Foreman Shadle On Riggs version of their conversation Shadle said that if he got anything good he would give me a buzz Shadle s account is not materially different he testified he told Riggs Okay, J C 111 keep you in mind Thus it seems plain that Foreman Shadle expressed himself as willing to consider Riggs for employment should open ings occur Riggs, however did nothing further to obtain work with the Respond ent So far as appears no occasion arose for the Respondent to )apply to Riggs the no rehiring policy to which Langford testified that the Respondent followed with respect to employees who had quit There is no basis, in my opinion for concluding that the Respondent unlawfully discriminated against Riggs by not rehiring him in June 1965 Accordingly this allegation of the complaint will be dismissed 4 The failure to promote James Corbin During the hearing the complaint was amended to allege that James Corbin was discriminatorily denied a promotion to the job of mixer operator on or about August 1 because of his union membership and activity and because his name was included in charges previously filed (Case 16-CA-2331 supra footnote 4) Corbin was employed July 6 1964 and worked under Foreman Cole as a floorman in the manufacturing department, and working in that capacity at the time of the hearing Corbin testified that about the middle of August 1965 he first spoke to General Foreman Landrum about being assigned to a mixer job on another shift which had become vacant because Malcolm Yeaman who had filled the job had quit. It appears that at the time of this conversation another employee Benme Nors a floorman about 6 months junior to Corbin had been temporarily working as mixer CERTAIN-TEED PRODUCTS CORP 95 operator for the period after Yeaman quit (about a month) but had not been classified as such Corbins testimony is that Landrum on this occasion went down the seniority list and stated that several floormen senior to Corbin had turned down the job and that Corbin was in line for it As Corbin was going on vacation about September 1 Landrum so Corbin testified stated that when Corbin returned from vacation he d check up and see what he could do for me About the middle of September after returning from vacation Corbin asked Landrum if anything had been decided about the mixer job Landrum replied that matters were pretty mixed up because of vacation and some quits and stated that when we kind of get things straightened out well we 11 check up on it and see about it About 2 weeks later Corbin again asked whether a decision had been made on the mixer job and Landrum replied that a decision had not been made 8 Corbin passed his military physical examination on June 10 which made him subject to 6 months active duty in the National Guard When Corbin first spoke to Landrum about the mixer job in mid August Landrum asked about his military service status and Corbin said he had passed his physical The day he testified November 15 Corbin stated he had received notice to report for duty on Novem ber 29 Corbin further testified that between the time he passed his physical and when he last spoke to Landrum about the mixer job he told Foreman Cole that he wasn t sure when he would be called into military service The job of mixer operator entails more responsibility than that of floorman and pays 10 cents more per hour According to Landrum it would take maybe 8 months or a year to qualify as a good mixer operator Corbin had temporarily worked for 6 days operating the mixer while he was relief man Nors also as Landrum testified had had a little experience operating the mixer as relief man on his shift (which was different from Corbin s shift) The unfair labor practice charge (Case 16-CA-2331) naming Cnst Corbin, and others as having been discnminatonly denied raises was filed on April 29 1965 and amended on May 25 According to Corbin about June 17 Foreman Cole warned him to do my work real good and watch out what I do because Plant Manager Rhoades and General Foreman Landrum were trying to find some excuse to fire me Corbin further testified that Cole said he didn t know what they had against me or why they didn t like me but he said that his feelings was that it was on account of the union activities Cole was not questioned about his conversation While the Respondent recognizes departmental seniority it does not follow a system of strict seniority in making promotions The employee handbook provides that employees are placed in jobs according to their experience qualifications, and ability if ability and work records are relatively equal preference will be given to the senior employee " The handbook further provides that vacancies in jobs above labor grade 3 (the job of mixer operator was above this grade ) "which cannot be filled by normal move up the progression lines will be posted on the bulletin board for 24 hours however such vacancies may be filled immediately pending final selection of the applicant " I infer from Landrum a testimony that at the time of the hearing three of the four incumbents in the job of mixer operator had not been so classified although they were being paid the rate applicable to the job, and from Corbin s testimony that when he last spoke to Landrum early in October he was told no decision had been made on the mixer job that Nors who was in the normal line of progression and on the shift on which the vacancy occurred was temporarily placed in the job pending a final selection At the time of the hearing Nors was still carried on the payroll as a floor man according to Langford No evidence was adduced by the Respondent questioning the ability or general qualifications of Corbin for the job of mixer operator However it seems evident that in view of his limited experience in doing the job for a brief period of 6 days and the fact that substantial experience in it was required to become fully qualified his imminent entry into the military service was a relevant factor to be considered in determining whether to assign him to the mixer operator job in mid August when he first asked for it At that time Nors had been performing the job for a month Corbin testified that when he first spoke to Landrum about the mixer job Landrum asked whether he had passed his physical and Corbin replied that he had 8 Landrum did not controvert Corbin s testimony about the foregoing conversations re- garding the mixer operator job Landrum testified he believed Corbin brought this matter up more than once but that he had never promised Corbin would get the job I credit Corbin s account of his conversations with Landrum 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Corbin s undemed testimony that in June Foreman Cole told Corbin to do his work real good because Rhoades and Landrum were `trying to find some excuse to fire Corbin for reasons not known to Cole but which Cole suspected or felt were based on Corbin s union activities However this opinion entertained by Cole of the attitude of Rhoades and Landrum toward Corbin is not shown to have been based on anything more than Cole s feelings I am unable to conclude that Cole s statement explains why 2 months later Corbin was not given the mixer operator job that became vacant At the time Corbin was subject to being called for active duty having passed his physical examination a fact which Landrum ascertained upon inquiry For about a month before Corbin asked about the job Nors had been performing it Under these circumstances I think the more reason able inference is that Landrum concluded not to place Corbin in the mixer job then being filled temporarily by Nors because Corbin was soon due to be called for active duty I find that there was no unlawful discrimination in the failure to promote Corbin and shall accordingly dismiss this allegation of the complaint C The refusal to barghin I The negotiations On May 28 1964 the Union won a Board-conducted election among the Respondents production and maintenace employees,9 by a vote of 55 to 37, with 1 challenged ballot, out of approximately 93 eligible voters The Respondent filed timely objections which the Regional Director in a Supplemental Decision issued July 2 1964 found lacking in merit he accordingly certthed the Union as the exclusive representative of the employees in the aforesaid unit, within the mean. sxc of Section 9(a) of the Act The Respondent filed a request for review with the Board which was denied on August 12 1964 as raising no substantial issues warranting review The parties first met for contract negotiations on September 9 1964 Between then and January 27 1965 when negotiations were suspended not to be resumed until the following June 25 and 26 the Respondent and the Union met a total of some 10 or 12 tunes The Unions contract proposals (other than wages) were submitted at the first meeting on October 6 the fourth meeting, the Union made its wage proposal At the next meeting on November 5 the Respondent submitted a counterproposal on items other than wages According to the undemed testimony of Plant Manager Rhoades he and Joseph McGee, an international representative of the Union who participated in the negotiations as the Union a crief spokesman agreed that the economic or cost items would be bypassed until essential agree anent had been reached on the wording of the other contract clauses .O Marvin Menaker attorney for the Union who attended all formal sessions of the negotiations and Plant Mapager Rhoades were the principal witnesses to testify regarding the contract negotiations. Neither of them testified in any detail concerning the meetings that were held prior to June 24 and 25, 1965 and it is therefore not possible to reconstruct the precise course of negotiations through the sheeting of January 26 and 27, 1965 It is clear, however, that early in the negoti- ations the parties found themselves in serious disagiesnient regarding them positions on two interrelated items proposed by the Union (1) hours of work and shift scheduling and (2) overtime both of which represented substantial changes from the arrangements then in effect At the conclusion of the November 12 and 13 ineetthge, the Union refused to modify its original proposals in regard to these subjects under which the Respondent claimed it would be very difficult and uneco- nomical to operate At the January 26 and 27 sessions a mediator met with the parties but no progress was made on these so-called hard core items Plant Man ager Rhoades testified without contradiction that the mediator commented at the end of the January 27 meeting that the parties appeared to be at a complete dead 6 The unit found appropriate was described as follows in the Regional Directors De- cision and Direction of Election All production and maintenance employees including plant clerical employees and shipping and receiving employees at the Employer s Hills- boro Texas plant but excluding office clerical employees machine tenders inspectors storeroom men laboratory technicians technical and professional employees guards watch men and supervisors as defined in the Act The Respondent admits and I find that this unit is appropriate within the meaning of Section 9 (b) of the Act 10 McGee did not testify CERTAIN-TEED PRODUCTS CORP 97 lock and suggested no further meetings be scheduled until some change of pose tion occurred From the conclusion of the January 27 meeting until June 1 when the Union asked for a further meeting no effort was made by either party to resume negotiations On June 1 1965 Menaker counsel for the Union wrote to Respondents coun sel George Smith suggesting a meeting during the week of June 7 to complete work on the contract He noted that the Union had reviewed its position and assumed that the Respondent had done likewise and expressed the belief that it would be desirable to meet for the purposes of consummating our negotiations and arriving at a collective bargaining agreement as soon as is reasonably practical Menaker also stated that the Union `would very much look forward to receiving the rest of the company s counterproposal at the next meeting apparently refer ring to the Respondents wage offer On June 8 Smith wrote to Menaker confirm ing arrangements for a negotiation session in Dallas on June 25 Both Menaker and Rhoades testified concerning the negotiations at the June 25 and 26 meetings their accounts are not in material conflict 11 The June 25 meet ing began at 10 30 and lasted until about 3 pan, when Rhoades and Langford left because of an emergency at the plant necessitating Rhoades attention During this meeting thet Union yielded to the Respondents position regarding work, sched tiling and overtime the two hard issues separating the parties Agreement was also reached on other issues of a less critical character Although the Union several times asked for the Respondents position on wages, it was not forthcoming At the outset of the Saturday June 26 meeting which began at 10 15 company representatives advised that the parties should meet through the lunch hour in order that Respondents attorney Mr Smith could depart on a 2 p in flight to A tlanta During the Saturday meeting the Union again unsuccessfully asked for the Respondent s wage proposal According to Menaker s undenied testimony the Union then proposed that it was prepared to accept as part of the contract (1) the entire company proposal of November the 5th 1%4 as modified by our dis cussions (2) the company handbook as modified therein in our discus sions" and (3) those portions of the Union s original proposal that had been agreed to, if the Respondent would agree to arbitration and voluntary checkoff of union dues, and provided agreement was reached on wages At this point which was about 12 15 p.m the Respondents representatives asked for a recess so that Plant Man ager Rhoades could confer by telephone with his superiors Rhoades was unable to reach either of the superiors be attempted to call, but did ascertain that both were en route to attend a convention in Portland Oregon. After the Respondents repre sentatives had been in recess about 30 minutes or more , Langford returned to the meeting room, reported that the effort to reach higher management had been unsuc- cessful, and suggested that the parties adjourn The Umon objected to adjourning and particularly to the failure of the Respondents representatives to return to discuss and arrange for another meeting However the Respondents representa- tives did not return to the meeting room and the matter of a further meeting was left for future arrangement. On June 28 Menaker wrote to Smith requesting a meeting for further negotia bons beginning Thursday July 1, 1965 and continuing until we reach an agreement or breakdown He also expressed disappointment at the Respondents failure to come forward with any answer to our proposal and in particular the wage pro- posal Smith replied by telegram on July 1 stating he was engaged in long ached uled negotiations on July 1 and possibly July 2,' and that he would be "in later contact with Menaker Smith did not contact Menaker about a future meeting The next communication from tthe Respondent to the Union was the following letter from Rhoades to McGee dated July 6 I would like to officially advise you of something which we both have been obviously aware of for some good number of days That is we do not feel that your Umon either does or has, for the past months represented a majority of our employees within the bargaining unit in which we held the last Labor Board Election We do therefore decline to recognize your organization as the collective bargaining agent of our above mentioned employees n Rhoades testified after a 2 week recess in the hearing He stated he had read Menaker s earlier testimony and that in substance it seemed quite correct 264-188-67-vol 181-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From all the indications and information which we have received it is apparent as were your actions apparent in our last negotiations sessions that your organization no longer represented our employees and that you were fully aware of this fact 2 The decertification movement About the middle of May 1965 Rayford Allen an employee told Plant Manager Rhoades that a group of employees would like to work on a decertification pets tion Rhoades testified he told Allen that his procedure should be to contact the director of the Regional Office of the Board in Fort Worth and that he would have Personnel Manager Langford supply Allen witth the necessary information for that purpose According to Rhoades he also told Allen that activity in support of the decertification effort must be conducted completely during non work time and off the company property Rhoades testified that it seemed to be common knowl edge that there was a petition being worked up Under date of June 28 1965 Robert Jones an employee active in the decertffi cation movement wrote to Plant Manager Rhoades requesting for myself and in behalf of a majority of the employees of the Hillsboro plant who join with me in this request that the Respondent not recognize the Union and advising `that we do not want this or any other union to represent us in any way Rhoades replied by letter dated June 29 stating that he felt that this matter should be decided by the National Labor Relations Board and therefore suggest that you con tact them in regard to this matter On Saturday July 3 employee Jones called at Rhoades home and handed him a letter dated July 2 together with a petition bearing the names of 55 of the Respondents employees Jones letter referred to the request in his earlier letter of June 28 that the Company not recognize the Union and then continued In further pursuance of such request and advise I wish to take this means to deliver to you the enclosed photocopy of Petition addressed to the National Labor Relations Board containing the signatures of 54 of the present employees of the Hillsboro Plant of Certain Teed Products Corporation such Petition having been signed by all of said employees within the last three weeks You will of course note that such Petition requests the National Labor Relations Board to conduct an election to decertify the above named Union and expresses our desire not to be represented by said Union The text of the petition, headed PETITION TO THE NATIONAL LABOR RELATIONS BOARD is as follows We the undersigned employees of the Hillsboro Texas Plant of Certain Teed Products Corporation do hereby petition and request the National Labor Rela tions Board to conduct and hold an election for the purpose of decertifying the Labor Union at said Hillsboro Plant of Certain Teed Products Corpora Lion the name of said Union being United Stone and Allied Products Workers of America We do not desire to be represented for purposes of collective bargaining by this or any other union Rhoades testified that during the period from mid May when he was first approached by Allen concerning the decertification effort, until he received the June 28 letter from Jones he was aware of a petition being circulated as many of the employees approached him about it He testified however that he avoided discussing the petition as such with individual employees He did not issue any instructions to supervisors concerning the circulation of the petition and testified that no instances of activity in support of the petition being conducted during work mg time or on company property came to his attention Rhoades turned the petition over to Langford on July 5 Langford compared the names of the petition against the payroll or seniority list He did not check for authenticity of signatures because he had no doubt about the genuineness of the signatures Rhoades testified that as a result of receiving the petition , and after consulting with counsel he wrote the July 6 letter to McGee withdrawing recogni tion of the Union 12 v It appears that Jones and Allen the employees promoting the decertification move took the petition to the Regional Office and according to Langford s testimonial account of what the employees reported to him were told that no election could be held because of pending charges and that the petition was deficient in that it did not show the dates the signatures were affixed Neither Jones nor Allen testified CERTAIN-TEED PRODUCTS CORP 99 There is undenied testimony which I credit that General Foreman Landrum and Personnel Manager Langford each encouraged an employee to join in the decertification movement Ronnie Gwin still employed by the Respondent testified that during the period the petition was being circulated Landrum came to him on the job and asked How s the petition coming and whether Gwin had signed it yet Gwin who testified he was a company man at that time said he had not signed and asked Landrum Do you think it would do any good' Landrum replied It must do some good There s twenty nine names on it Why don t you get on it? Gwin testified he told Landrum he had been waiting for someone to bring the petition to him Either that or the following evening Jones brought the petition to Gwm s home stating that Jun [Landrum) sent me over here for you to sign this Gwm told Jones that he did not particularly wish to sign but did so Larry McCulloch testified that about July 7 1965 while at work Langford asked him referring to the petition whether McCulloch had jumped on the band wagon yet that the petition had 55 names on it and if McCulloch would sign `we 11 prob ably have sixty Langford also told McCulloch that well have to get it [the pets tion] resigned because it was not dated In answer to Langfords specific inquiry whether McCulloch would sign McCulloch replied Sure however the petition was not thereafter presented to him and he did not sign 3 The wage increases As found above the Respondent did not make any counterproposal respecting wages at the June 25 and 26 negotiating sessions At these sessions the Union repeat edly requested that the Respondent state its position on wages particularly after the Union had stated its acceptance of the Respondents November 1964 proposals on noneconomic issues as modified in negotiations and its willingness to execute a con tract on the basis of the terms as then tentatively agreed to provided the parties reached an accord on arbitration checkoff and wages However the Respondent did not make a wage proposal at that time as Rhoades testified he deemed it neces sary at this point to advise his superiors of the status of negotiations According to Rhoades the Respondent had last granted a general wage increase in about June 1963 in accordance with its policy of normally making a wage survey every year on about the July anniversary date of the opening of the plant As found in the prior case (153 NLRB 495) the Respondent after the Union was certified suspended the operation of its wage progression plant pursuant to which merit increases had theretofore been given contending that it would be unlawful for it unilaterally to grant such increases This action suspending merit increases was found violative of Section 8(a)(1) in the Boards decision issued June 25 1965 Thus as of the tune the Respondent withdrew recognition from the Union on July 6 1965 no general increase had been granted since June 1963 and merit increases had been suspended since the Unions certification on July 2 1964 On July 8 2 days after withdrawing recognition from the Union Plant Manager Rhoades in separate notices to employees announced a general wage increase and also the resumption of merit increases retroactive to June 1 1964 The announce merit of the general increases which amounted to about 12 cents per hour was as follows I am happy to report that the home office has approved a general increase for all hourly employees The amount of the increase which each will receive will be explained to you by your supervisor The increase will be effective with the payroll period beginning July 12 1965 The notice relating to merit increases read as follows We are pleased to announce that the personnel and payroll offices are in the process of calculating merit increases for all affected employees since June 1 1964 These increases will be reflected in the check covering the pay period beginning July 12 The amounts which have accrued since June 1, 1964, will be issued in separate checks as soon as the payroll department can complete their calculations The Company has always taken the position that once the question was resolved concerning the legal status of these merit increases it would act and grant them once it was free to do so We are now able to do this 13 13 The last paragraph is obviously a reference to the Respondent a position in the Board case referred to above finding that the suspension of merit increases was in the circum stances violative of Section 8(a) (1) of the Act 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 Concluding findings Although the complaint alleges that the Respondent violated Section 8(a)(5) on various dates prior to June 25 1965 as well as thereafter the evidence is too insubstantial to warrant finding any unlawful refusal to bargain in the events that occurred before June 25 On this aspect of the case therefore inquiry focuses upon the Respondent s conduct during the negotiation sessions on June 25 and 26 and the events which followed thereafter culminating in the withdrawal of recognition on July 6 and on the announcement of wage increases on July 8 By noon of June 26 the Union had receded from its demands which had caused the apparent deadlock in negotiations the preceding January It had accepted the Respondents November counterproposal as therefore modified, thus eliminating the hard core issues of work scheduling and overtime In other areas the parties were in basic agreement Aside from wages the only open items were arbitration and checkoff and the term of the agreement These items had not presented any par ticular difficulty Instead of responding to the Union s request for a statement of position on Wages the Respondents representatives recessed in order to report to higher management and when that effort was unsuccessful the Respondent a repro sentatives adjourned the meeting over the Union s protest and without arranging for the resumption of negotiations In view of the fact that Rhoades as he testified had been given full authority `way back in September to conclude a contract his explanation for not discussing wages or making any offer in that regard on June 26-that he felt it proper to my management before going further to bring them up to date on the progress of negotiations -impresses me as being more consistent with a purpose to stall nego tiations than with a desire to bring them to a mutually satisfactory conclusion From all the circumstances I infer that on June 26 the Respondent refused to make any statement on wages because it had already decided to break off bargaining with the Union and to withdraw recognition from the Union That the Respondent did not in fact accord the Union recognition as the exclusive representative on June 26 to which it was entitled under the well-established rule that the majority status of a union certified by the Board may not be questioned for the period of 1 year follow mg certification absent unusual circumstances not present here ,34 is apparent from the Respondents letter of July 6 formally dec)Aamg to recognize the Union In that letter Rhoades stated that the Respondent had felt for the past months that the Union had not represented a majority and that the Unions actions (not specified) at the last negotiations sessions revealed that your organization no longer repre sented our employees Significantly Rhoades did not refer to the decertification petition he had received on July 3 as the basis for withdrawing recognition which would have been the logical course if a determination to question the Union s majority status had not been made and acted upon prior lo the receipt of the peti tion In short I view Rhoades July 6 letter not as stating a new position occasioned by the receipt of the decertification petition on July 3 (2 days after the expiration of the certification year) but as formalizing and confirming the state of mind which prompted the Respondent on June 26 within the certification year to refuse to make a counterproposal on wages and to break off negotiations I conclude and find that the Respondent terminated negotiations on June 26 1965 in derogation of the Union s status as the certified and exclusive representa tive of employees in an appropriate unit and that since this action was taken prior to the expiration of the Union s certification year the Respondent cannot avail itself of the asserted doubt that the Union on or before June 26 had lost its majority status, even though such doubt may have beep raised in good faith 15 1 find there fore that the Reespopdept unlawfully refused to bargain in violation of Section 8(a)(5) and, (t) of the Act Consistent with the foregoing findings, I also find that the Respondent, by formally withdrawing recognition from the Union on July 6 14 Ray Brooks v N L R B 348 U S 96 Celanese Corporation of America 95 NLRB 665 ss See Celanese Corporation of America 95 NLRB 665 at 672 during the certifica tion year an employer cannot absent unusual circumstances lawfully predicate a refusal to bargain upon a doubt as to the union s majority even though that doubt is raised in good faith CERTAIN-TEED PRODUCTS CORP 101 and by announcing a general wage Increase on July 8 engaged in further conduct violative of its duty to bargain in good faith with the Umon is IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, C, above occurring in connection with the operations of the Respondent described in section I above have a close intimate and substantial relation to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing corn merce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. To remedy the Respond ent s unlawful refusal to fulfill its statutory bargaining obligation, I recommend that it bargain on request with the Unon, as the exclusive representative of 14 employees in the unit found appropriate herein and if an understanding is reached embody such understanding in a signed agreement I also recommend that the Respondent post at its plant the attached notice marked Appendix " Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act CONCLUSIONS OF LAW 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 All production and maintenance employees, including plant clerical employees and shipping and receiving employees at the Respondent s Hillsboro Texas, plant, but excluding office clerical employees , machine tenders inspectors, storeroom men laboratory technicians technical and professional employees guards, watch- men and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the ,Act. 4 At all times since July 2 1964 the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the mean ing of Section 9(a) of the Act 5 By refusing on and after June 26 1965, to recognize and bargain collectivity with the Union as the exclusive representative of the employees in the aforesaid appropriate unit the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act 6 The aforesaid unfair labor practices are unfair labor practices affecting coin merce, within the meaning of Section 2 (6) and (7) of the Act 7 In other respects alleged in the complaint the Respondent has not engaged in unfair labor practices RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case it is recommended that Certain Teed Products Corporation, Hillsboro Texas its officers, agents, successors and assigns, shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with United Stone and Allied Products Workers of America AFL-CIO-CLC as the exclusive represents Live of all production and maintenance employees including plant clerical employ ees and shipping and receiving employees employed by the Respondent at its u In his brief counsel for the General Counsel contends that the certification year should date from August 12 the date upon which the Board rejected the Respondents request to review the Regional Director a action of July 2 dismissing the objections of the Respondent and certifying the Union As I understand the law however the certification year dates from the certification and is not extended by a period equal to the time claps Ing between the date of certification and the date a request for review is denied Section fi(b) of the Act provides that a review by the Board of any action of a Regional Director pursuant to the delegation of powers under Section 9 shall not unless specifically ordered by the Board operate as a stay of any action taken by the regional director This provision would appear to indicate that the certification was operative when issued and its effectiveness not affected or stayed by a request for review unless the Board ordered otherwise Accordingly I have regarded the certification year as dating from July 2 1964 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hillsboro Texas plant but excluding office clerical employees machine tenders inspectors storeroom men laboratory technicians technical and professional employees guards watchmen and supervisors as defined in the Act concerning rates of pay wages hours of employment and other terms and conditions of employment (b) In any like or related manner interfering with restraining or coercing its employees in the exercise of their rights to self organization to form labor organs zations to join or assist the above named Union or any other labor organization to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Upon request bargain collectively with the above named Union as the exclusive representative of all the employees in the unit described above con cerning rates of pay wages hours of employment and other conditions of employ- ment and if an understanding is reached embody such understanding in a signed agreement (b) Post at its plant in Millsboro Texas copies of the attached notice marked Appendix 17 Copies of said notice to be furnished by the Regional Director for Region 16 after being duly signed by a representative of the Respondent shall be posted by the Respondent immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted Reasonable stejis shall be taken by the Respondent to insure that said notices are not altered defaced or covered by any other material (c) Notify the Regional Director for Region 16 in writing within 20 days from the date of receipt of this Decision and Recommended Order what steps the Respondent has taken to comply herewith 18 17 In the event that this Recommended Order is adopted by the Board the words a Decision and Order shall be substituted for the words the Recommended Order of a Trial Examiner in the notice In the further event that the Board s Order is enforced b 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 >e In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 16 in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act as amended we hereby notify our employees that WE WILL NOT refuse to bargain collectively upon request with United Stone and Allied Workers of America AFL-CIO-CLC as the exclusive representa tive of all employees in the bargaining unit described below of in any like manner interfere with restrain or coerce our employees in the exercise of their right to self organization to form labor organizations to join or assist the above named Union or any other labor organization to bargain collectively through representatives of their own choosing and to engage in other con certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities WE WILL bargain collectively upon request with the above named Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay wages hours of employment and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement The bargaining unit is All production and maintenance employees including plant clerical employ- ees and shipping and receiving employees at our Hillsboro Texas plant ROBERTSHAW CONTROLS COMPANY 103 but excluding office clerical employees, machine tenders, inspectors, store- room men, laboratory technicians, technical and professional . employees, guards, watchmen, and supervisors as defined in the Act. CERTAIN-TEED PRODUCTS 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 questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76101, Tele- phone 335-4211, Extension 2145. Robertshaw Controls Company, Acro Division and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW-AFL-CIO Robertshaw Controls Company, Acro Division and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW-AFL-CIO, Petitioner. Cases 9-CA-3606 and 9-AC-1. October 19, 1966 DECISION AND ORDER On January 11, 1966, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal thereof. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision, and briefs in support of their exceptions. The Respondent filed cross- exceptions with a supporting brief. The Charging Party filed a reply brief to the Respondent's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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, cross-exceptions and briefs, and 161 NLRB No. 2.