Graham Engineering

GRAHAM ENGINEERING 679 W. J. Graham , John Graham , II, and Martin Gracey, a Partnership d/b/a Graham Engineering and Benjamin Havard, an Attorney Local 347, International Union of Operating Engineers, AFL-CIO and William H. Kelley and Benjamin Havard, an Attorney. Cases 23-CA-2177 and 2288 and 23-CB-555, 629, and 655. May 17, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On December 7, 1966, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative'action, as set forth in the attached Trial Examiner's Decision. He further found that Respondents had not engaged in certain other unfair practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent Employer and the General Counsel filed limited exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent Union filed a reply brief to the exceptions and brief filed by the General Counsel. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner as herein modified. 1. Add the following as paragraph 1(d) to section A of the Trial Examiner's Recommended Order, and consecutively reletter the paragraph subsequent thereto: "(d) Recognizing Local 347 as the representative of any of their employees for the purpose of dealing with them concerning grievances, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until the Board shall certify Local 347 as such representative. Provided, however, that nothing herein shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of their relations with their employees, or prejudice the assertion by the employees of any rights they may have heretofore acquired." 2. Add the following as paragraph 2(a) to section A of the Trial Examiner's Recommended Order, and consecutively reletter the paragraphs subsequent thereto: "(a) Withdraw and withhold all recognition from Local 347 as the collective-bargaining representative of any of their employees for the purpose of dealing with Respondents concerning grievances, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until said Local 347 shall have demonstrated its exclusive representative status pursuant to an election conducted by the National Labor Relations Board." 3. Add the following as the first paragraph to Appendix A attached to the Trial Examiner's Decision. WE WILL withdraw and withhold recognition from Local347, International Union of Operating Engineers, AFL-CIO, as the collective-bargaining representative of any of our employees unless and until it is certified by the National Labor Relations Board as such representative. However, we are not required to vary or abandon any wage, hour, seniority, or other substantive feature of our relations with our employees, and our employees are not precluded from asserting any rights they may have heretofore acquired. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents , W. J. Graham, John Graham, II, and Martin Gracey, a Partnership d/b/a Graham Engineering , their officers , agents, successors, and assigns, and Local 347, International Union of Operating Engineers , AFL-CIO, their officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order, as herein modified: i The Respondent 's exceptions to the Trial Examiner's Decision are in large part directed to the credibility resolutions of the Trial Examiner We will not, however , overturn a Trial Examiner's resolution of credibility issues unless the party excepting to such finding demonstrates by a clear preponderance of the relevant evidence that they are incorrect Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) Respondent , in our opinion , has not satisfied that burden here TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The charge in Case 23-CB-555 was served on Respondent Union on July 23, 1964. The original charges in Cases 23-CB-629 and 23-CA-2177 were served on Respondents on 164 NLRB No. 87 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 30, 1965,' and the original charges in Cases 23-CB-655 and 23-CA-2288 were served on Respondents on January 25, 1966. The consolidated complaint, as amended , issued on May 24, 1966, and the hearing was held from June 21 to 24, 1966. After the hearing briefs were filed by all parties.2 The issues litigated involved alleged violations of Section 8(a)(1), (2 ), (3), and (4) by Respondent Company and Section 8(b)(1)(A) and (2) by Respondent Union. Upon the entire record in this proceeding,'' including my observation of the witnesses , I adopt the following findings and conclusions. 1. THE BUSINESS OF THE COMPANY W. J. Graham, John Graham, II, and Martin Gracey a partnership d/b/a Graham Engineering , hereinafter called the Company or Respondent Company, is a partnership, and maintains its principal office and place of business at the NASA Manned Spacecraft Center, in Houston , Texas, where it performs certain maintenance services. The Company annually purchases goods valued in excess of $50,000, which are shipped to its Houston location from out-of-State points. The Company is engaged in commerce under the Act. II. THE LABOR ORGANIZATION INVOLVED Local 347, International Union of Operating Engineers, AFL-CIO, hereinafter called the Union or Respondent Union , is a labor organization under the Act. International Union of District 50, United Mine Workers of America , hereinafter called District 50, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The pleadings raise the following issues: 1. Whether the Company violated Section 8(a)(1) of the Act by interrogation, threats of reprisal, and other coercive conduct. 2. Whether the Company violated Section 8(a)(2) and (1) of the Act by requiring membership in the Union as a condition of employment. 3. Whether the Company violated Section 8(a)(3) and (1) of the Act by discharging various employees on September 29, November 2, and December 30, by refusing to hire Koppenol, and by refusing to promote Orvel Kelley. 4. Whether Respondent's alleged discharge of William Kelley and its refusal to promote Orvel Kelley violated Section 8(a)(4) of the Act. 5. Whether the Union violated Section 8(b)(1)(A) by threats of reprisal for, and interrogation about, employee concerted activities in opposition to the Union, by soliciting employees to withdraw their support of District 50, and by informing employees that membership in the Union was a condition of employment. 6. Whether the Union violated Section 8(b)(2) and (1)(A) by causing the Company to refuse to hire Koppenol. B. The Settlement Agreement Since early in 1963, the Company has been engaged, under a contract with NASA, to perform various services at the Manned Spacecraft Center in Houston , hereinafter called the Space Center , including the operation and maintenance of the heating and cooling equipment and the sewage and water treatment plants. Prior to January 1, 1966, it had about 500 employees at the Space Center , of whom 56 were stationary engineers, hereinafter called operators, engaged in operating and servicing the foregoing equipment . At all times here relevant the operators were covered by a contract between the Union's International parent body and the Company." On July 20 , 1964, two of the operators , William Kelley and his brother , Orvel, were discharged, and on July 22, 1964 , William filed a charge in Case 23-CB-555 alleging that the Union had caused the discharge of himself and his brother because of their "protected concerted activities and/or because of their opposition to intra-union policies." At the same time a charge was filed by William Kelley against the Company in Case 23-CA-1854 alleging that the foregoing discharges violated Section 8(a)(3) of the Act. On September 8, 1964, the Union entered into a settlement agreement , which was approved by the Regional Director , and the Company about the same time reinstated the Kelleys with backpay in the amount of $1,000 to each , whereupon the charge against it was withdrawn . On December 23, 1965, after the filing of the instant charges against the Union, the Regional Director set aside the foregoing settlement agreement. The settlement agreement is material here in that the instant complaint alleges various unlawful acts by the Union occurring more than 6 months before the service of the earliest of the new charges against the Union (on September 30, 1965), and which would be time -barred unless the settlement agreement was properly set aside. Accordingly, pursuant to Board policy , it will be necessary to consider below whether there was any postsettlement violation by the Union, before any findings can be made as to its presettlement violations. However , in determining the legality of the Union 's postsettlement conduct, such conduct may be considered against the background, and evaluated in the light , of its presettlement conduct.' As to the Company, there is no problem of setting aside a settlement agreement , as the old charge against it was disposed of by withdrawal thereof in consideration of certain remedial action taken by it, and without the execution of any settlement agreement , formal or informal. Moreover , the instant complaint does not allege any violations by the Company antedating the settlement agreement, nor does it in fact allege any such violations before March 30, 1965, which is the cutoff date under Section 10 (b) with respect to the original charge against the Company in the instant proceeding . Accordingly, any events related below occurring before March 30, 1965, can affect the Company only insofar as they provide a background for conduct of the Company occurring on and after that date . We proceed now to consider chronologically the events which gave rise to this ' All events herein occurred in 1965, unless otherwise indicated. After the hearing there was also submitted by the parties, at my request , various stipulations deemed by me necessary to complete the record. Such stipulations have been marked as TX Exh. 1 through 6 , and are hereby ordered received in evidence. a For corrections of the record, see Appendix A attached hereto [omitted from publication]. ' The contract was executed on March 13, 1963, for a term of 1 year, with provision for automatic renewal. Joseph's Landscaping Service, 154 NLRB 1384. GRAHAM ENGINEERING 681 proceeding, concerning which there is no substantial dispute. C. Sequence of Events On June 1, 1963, Prendergast became the Company's "plants superintendent"" at the Space Center, in which capacity he was responsible for the hiring and discharging of operators and the overall supervision of their work. He was assisted, among others, by Roy Clark, the "plant superintendent." Prendergast began recruiting operators in the fall of 1963. Admittedly, about one-third of the operators in the Company's employ were referred to it by Jones, the Union's business agent: and Teague, the Union's business manager, acknowledged that all the operators hired by the Company at the Space Center were members of the Union.' In October 1963, the Kelley brothers were hired. From March 15 to May 1, 1964, Jones, on leave of absence from his union post, was employed by the Company in a supervisory capacity. As already related, the Kelleys were discharged on July 22, 1964, but, after charges were filed, were reinstated early in September with backpay. During the next few days, at the solicitation of William Kelley, about half of the 50-odd operators then in the Company's employ signed cards authorizing District 50 to represent them. Shortly thereafter, Jones, with some assistance from Prendergast, induced some of those who signed cards for District 50 to forward letters to District 50 requesting return of their cards. In June 1965, Koppenol, who was not a member of the Union, applied to Prendergast for a job as an engineer, and was referred to Jones. After an unsatisfactory interview with Jones, the details of which are discussed below, Koppenol reported to Prendergast, who took no action on Koppenol's application. On September 2, Q. Simmang wrote the Company a letter in which he indicated that he and other operators were contemplating legal action against the Union. About that time William Kelley attempted to revive interest in District 50 by passing out some more cards for that Union, and about the same time he collected contributions from various of the operators to defray the cost of legal representation, and retained an attorney, Havard, to represent the dissident union members. On September 24, Havard wrote Teague, the Union's business manager, advising that he had been retained by certain employees "at the NASA installation," to represent them in connection with certain grievances against the Union, including the alleged "dual employment" of Jones and the alleged misuse of union funds, and requesting an audit of such funds. On September 28 and 29, the Company distributed to all its employees new job application forms, which called for certain information not contained in the forms theretofore submitted by them, and which requested information as to union affiliation . On September 29, William Kelley and Van Meter were discharged, allegedly for refusing to complete these new forms. On October 6, a suit was filed in Federal district court to compel the Union to permit inspection of its books. The suit named as plaintiffs the Kelleys and Van Meter, among others. The next day, a local newspaper published a report of this action, listing the plaintiffs' names. On November 2, Robertson, one of the plaintiffs in the foregoing lawsuit, was discharged, allegedly for violating a plant rule against reading on the job. During the last week in December, the Company laid off a number of its operators, for economic reasons, including three who were named as plaintiffs in the foregoing lawsuit. D. Discussion 1. The closed-shop issue While the instant employees were admittedly covered by an agreement between the Company and the Union's International parent body, which contains a union-security clause, that clause is by its terms not applicable to a State like Texas, which outlaws union-security arrangements. And the complaint contains no allegation that there was any unlawful union-security arrangement to which the Union was a party. It is alleged only that the Company rendered unlawful assistance to the Union by requiring union membership as a condition of employment. Accordingly, as the issue was not litigated, there is no need to determine at this point whether there was involved here more than merely a policy unilaterally adopted by the Company. In support of his contention that there was such a policy, the General Counsel points to the following: a. The fact that, as noted above, all of the operators hired by the Company were members of the Union, even though the union-security clause in the International's agreement did not, and could not lawfully, apply to the instant job. b. Prendergast's admission that Jones was given advance notice of prehire interviews in the early stages of the Company's recruitment program. c. Testimony by William Kelley, Van Meter, Q. Simmang, D. Simmang, Sledge, Jack Clark, and Sutphin that the Company required that they join the Union as a condition of employment" d. Testimony of Sledge that Prendergast gave him a union membership application to sign and collected $5 from him, which was apparently the amount of the union initiation fee, as well as the testimony of Q. Simmang that he was requested to sign a union membership application by Prendergast's secretary, who collected $9 from him for the Union. e. Testimony by Edge that, when he applied to Prendergast early in 1964, for a job, he was told to see Jones about becoming a union member; that he joined the Union in December 1964, that sometime thereafter he was notified by Jones to report for work, and, when he appeared at the jobsite, was offered employment by Prendergast. ' f. Testimony of Revell, Junior, that, when he and his father applied to Prendergast, they were told to see Jones about joining the Union; that they talked to Jones; that the witness later received a call from Jones informing him that he was to be hired by the Company, and directing him to '' His designation was later changed to "operations superintendent," but without any apparent change in duties ' While Prendergast testified that he did not think that all the operators were union members , I deem Teague's testimony more reliable , as he was obviously better qualified than Prendergast to know the identity of the union members " As to Koppenol's like testimony, see below 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come to Jones' office and join the Union, which he did. He was thereafter hired by the Company. g. Testimony by Robertson that he applied to the Company for employment, that Jones called him to come to his office, and that about 2 weeks before he was actually hired Jones told him to join the Union "and the job was mine." In opposition to the foregoing, the Company adduced testimony by Prendergast denying that he told any applicant that he had to join the Union as a condition of employment." Prendergast insisted that he merely explained to applicants that all the craftsmen at the jobsite were union members, and that the Union's jurisdiction extended to the Company's operations. However, he admitted that he might have given Sledge a union authorization card and collected $5 from him Nor did he controvert Q. Simmang's testimony that, at the behest of Prendergast's secretary, he signed a union membership application and paid her $9. On the basis of demeanor, and in view of the cumulative effect of the testimony of the employee witnesses, as well as the fact that all the Company's operators were union members, I credit such testimony and find that Prendergast not only required union membership as a condition of employment but also assisted Jones in inducting the operators into the Union, by giving him advance notice of the identity of those whom the Company proposed to hire, and by personally, or through his secretary, soliciting job applicants to sign union membership applications and pay initiation fees and dues. However, except for Koppenol, all the foregoing employee witnesses were hired before May 10, 1965-the relevant cutoff date under Section 10(b) of the Act."' Accordingly, insofar as the General Counsel is contending that the Company has since that date maintained in effect a closed-shop policy, no finding to that effect may be made solely on the basis of the circumstances under which employees were hired before the cutoff date, and such circumstances may serve only as a basis for evaluating events occurring since that date. The only such more recent events here relevant appear to be (1) the fact that since May 10, 1965, as before, all the operators hired by the Company were admittedly union members, and (2) the circumstances surrounding the Company's failure to hire Koppenol in June 1965 As to Koppenol, the evidence was as follows: He testified that in June 1965, he applied to Prendergast for a job as an operator, that Prendergast assured him that there was a job available and, after ascertaining that the witness had the proper license, gave him an application to complete, but told him he had to go to the Union and to return with his application after joining the Union; that the witness went to the Union's office, where he was interviewed by Jones: that, when the witness offered to join the Union, asserting that he could get a job with the Company, Jones stated: Well, you cannot get the job and we cannot make you a member because there are sixty-seven more people on my list. According to the witness, when he continued to importune Jones to admit him to membership, Jones indulged in profanity, and declared, "you are not a member, you cannot get the job." However, under cross- examination, Koppenol admitted that Jones stated that Koppenol could join the Union but asserted that , even as a union member, Koppenol could not get a job with the Company, as there were 67 applicants ahead of him. He added that, when he called Prendergast the next day, the latter stated that he could not hire Koppenol absent union membership. Koppenol was not hired. Prendergast's version was that, after reviewing Koppenol's qualifications, he explained that it was his practice to hire directly, but that, if he had no qualified applicant for a particular opening, he would call upon the Union for referrals; that Koppenol then stated that he was a member of the Union: that Prendergast remarked that he had no openings but suggested that, if Koppenol was a union member, Jones might be able to help him find a job; that the next morning Koppenol called him to report that Jones had abused Koppenol and ordered him out of the office; and that the witness merely expressed his regret at the incident, and had no further conversation with Koppenol. Prendergast insisted that his only reason for not hiring Koppenol was the absence of any opening at the time and that he did not hire any operators until about 10 days later. According to Jones, when he was told by Koppenol that he was seeking a job with the Company, Jones remarked that normally the Company would call him for referrals, if it needed any from him, but that he had not had any such call and, so far as he knew, there was no job available with the Company; that Koppenol countered that he could have a job with the Company if Jones would refer him; that Jones declared that the Company was free to hire Koppenol without any such referral; that Koppenol then offered to join the Union, if Jones would refer him to the Company; that Jones answered: ... if I had the jobs available, I would probably get sixty or seventy people to join my union in the morning, if I had these jobs and could fill them. Jones added that he solicited Koppenol to join the Union, but Koppenol persisted in his position that he would join the Union only if Jones would refer him to the Company, and that, when Koppenol threatened to file charges with the Board, Jones was provoked to profanity and ordered him out of Jones' office. It appears from the foregoing that there is no substantial dispute that Koppenol applied in June 1965 to Prendergast, who was satisfied with Koppenol's qualifications; that Prendergast referred Koppenol to Jones for help in obtaining employment; that Koppenol informed Jones, in effect, that he expected to be hired by the Company, if he could obtain a referral from Jones, and offered to join the Union; that, while willing to admit Koppenol to membership, Jones refused to refer him to the Company: that Koppenol informed Prendergast that Jones would do nothing for him; and that Koppenol was not hired. The only points in dispute are the following: 1. Whether Prendergast indicated that he would hire Koppenol if he became a union member. 2. Whether Prendergast told Koppenol to see the Union about becoming a union member. 3. Whether Prendergast told Koppenol , after his " Jones denied that he notified any operator to report for work Union as a condition of employment first appears in an amended with the Company For reasons indicated below , I do not credit charge in Case 23-CA-2177, which was served on the Company such denial on November 10, 1965 " The allegation that the Company required membership in the GRAHAM ENGINEERING 683 interview with Jones, that he could not hire him so long as he was not a union member. With regard to all the foregoing matters, the issue is basically one of resolving credibility as between Prendergast and Koppenol. I credit Koppenol on the basis of demeanor.'' I find therefore that Prendergast told Koppenol, in effect, when he applied, that he would be hired if he joined the Union, and referred him to the Union for that purpose, and the next day refused to hire him because he had not become a union member; and that, by such refusal, the Company violated Section 8(a)(3) and (1) of the Act. I find further that, as alleged in the complaint, by Prendergast' s statements to Koppenol to the effect that, absent union membership he would not be hired, Respondent violated Section 8(a)(1) of the Act.'2 In view of the foregoing findings, and in view of the fact that after May 10, 1965, as was the case before that date, all the Company's operators were union members, I conclude that the Company's preexisting policy of hiring only union members has been maintained in effect since May 10, 1965, and that the Company thereby rendered assistance to the Union, in violation of Section 8(a)(2) and (1) of the Act.'•' There remains to be considered whether, as alleged in the complaint, the Union violated Section 8(b)(2) and 8(b)(1)(A) of the Act, by causing or attempting to cause the Company to refuse to hire Koppenol because of his lack of union membership. There is no conflict between Koppenol and Jones that Jones refused to refer Koppenol. However, a Union's refusal to refer a job applicant is not , without more, unlawful. It must be shown in addition (1) that the Company had arranged with the Union to hire only persons referred by it and (2) that the Union discriminated as between job applicants on the basis of union considerations. As to (1), Koppenol attributed to Jones the assertion that Koppenol could not get a job with the Company, even if he became a union member, because Jones would not refer him, thereby implying that Jones had exclusive referral power. Moreover, the contract in evidence between the Union and the Company requires it to seek referrals from the Union to fill the Company's manpower needs. On the other hand, if one accepts as true Prendergast's and Jones' version of their referral arrangement , as allegedly related by them to Koppenol, it would appear that such arrangement was not exclusive but was resorted to only when qualified applicants could not be obtained by direct hiring. Moreover, Koppenol's own testimony attributes to Prendergast only a stipulation that he obtain union membership, and not a union referral, as a condition of employment. Thus, such testimony establishes that Prendergast was prepared to hire Koppenol if he would but join the Union. Finally, there was no contradiction of Teague's testimony that only about one-third of the Company's operators had been referred by the Union, and the record abounds with evidence of direct hiring by Prendergast. Accordingly, I find that, insofar as it precluded direct hiring, the contract was in practice disregarded by the parties. In any event, as to (2), the record fails to establish that Jones refused to refer Koppenol because of lack of union membership or for any other reason proscribed by the Act. It is clear from Koppenol's own testimony that Koppenol offered to join the Union and that Jones was willing to accept him as a member, but that Koppenol was deterred from joining when Jones indicated that, in any case, he could not refer Koppenol to the Company because 67 others had registered for referral ahead of him. Thus, from Koppenol's own testimony it would appear that the proximate reason for his failing to obtain a referral from the Union was not his unwillingness to become a union member or the Union's unwillingness to accept him as a member, but the fact that the Union deemed itself bound to give priority in referrals to others who had applied before he had. It would seem therefore that the General Counsel has proved merely that Koppenol was not hired because he failed to obtain union membership, which the Union, however, was willing to grant him. In view of this, I am unable to find that, as the complaint alleges, the Union caused or attempted to cause the Company not to hire him because he lacked union membership, and it will be recommended that this allegation be dismissed. 14 2. Other 8(a)(1) violations It is alleged that on or about August 16, Plant Superintendent Roy Clark promised an employee a promotion if he abandoned his concerted activities in opposition to the Union. This allegation evidently refers to an incident involving Roy Clark and his brother Jack, who in August was an operator and was later, on October 4, promoted to chief operator, a position which he held at the time of the hearing Jack Clark was an understandably reluctant witness for the General Counsel, but ultimately acknowledged the veracity of statements made by him in a pretrial affidavit to the effect that he was told in mid- August by his brother that he had talked to Prendergast, who had asserted that if the witness "was not mixed up in this deal to get rid of Jesse Jones," the witness could be promoted to chief operator According to the affidavit, the witness retorted that he "would not change his mind about" Jones and that he thought the employees needed "more equal representation." Roy Clark denied that there " Moreover , Prendergast 's version of his interview with Koppenol appears contrived , as he failed to explain why it was necessary for him to describe to Koppenol, an admittedly qualified applicant, his alleged practice of calling upon the Union for referrals when he had no qualified applicants ' However, there is nothing in the record to support the allegation in section 7(a) of the complaint that Prendergast coercively interrogated Koppenol about his union membership " While such policy was also violative of Section 8(a)(3) of the Act, such a violation was not specifically alleged In any event, a finding to that effect would not affect the remedy herein 'a Even if it be assumed, contrary to the findings above, that Koppenol would not have been hired had he joined the Union unless he was referred by Jones, there would still be insufficient basis in the record for finding a violation of Section 8(b)(2) of the Act, for, to establish such a violation , it would have to appear in addition that Jones refused to refer Koppenol for discriminatory reasons, or prevented him from qualifying for referral for reasons proscribed by the Act However, according to Koppenol's own testimony Jones indicated only that Koppenol , even if he joined the Union, would not be referred because of the large number of prior registrations for referral-clearly not a discriminatory criterion Nor is it clear how it can be said that , by advising Koppenol of this nondiscriminatory basis for job referrals, which advice caused Koppenol to lose interest in qualifying for such referrals by joining the Union, Prendergast prevented Koppenol from so qualifying In any event, the General Counsel has suggested no reason for believing , and there is no evidence that, in giving such advice , Jones was motivated by any bias against Koppenol because of his union or nonunion status On the contrary, the record is replete with evidence that Jones accepted as union members , and referred to employment with the Company, operators who, like Koppenol, had had no prior affiliation with the Union 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was any such conversation. The fact that, despite his evident reluctance at the hearing to implicate his brother or the Company in any unfair labor practices, Jack Clark did not attempt to repudiate, or to mitigate the effect of, his affidavit vouches for its veracity. In view of this, I give credence to the statements in such affidavit, as adopted at the hearing, and find that, by the foregoing promise of promotion if Jack Clark disassociated himself from any movement to unseat Jones as the Union's representative, Respondent violated Section 8(a)(1) of the Act. It is alleged that on or about September 22, 1965, Roy Clark requested an employee to discourage others from concertedly opposing the Union's administration of its internal affairs, and threatened an employee with reprisals if he gave any information to the Board. Van Meter testified that about September 22, Roy Clark asked him to talk to some of the other employees who "were going down to the court," and see if the witness "could get them settled down a little bit," or get them to "slow down," because there was a good chance that Clark might lose his job. According to the witness, Clark explained that he was being held responsible by management for the reinstatement of the Kelleys, as he had "testified that the Kelleys' work was good," and, when the witness expressed the view that the employees were acting within their rights, Clark rejoined, "Well, maybe so, but all they needed to do was just to make one mistake." While Clark denied making any of the foregoing statements, I credit Van Meter on the basis of demeanor and the circumstantiality of his testimony.' 5 However, it is not clear from Van Meter's testimony what "court" action Clark had reference to." No lawsuit was actually filed until October 6, about 2 weeks after the foregoing incident. However, on September 2, Q. Simmang had written Graham indicating that some of the operators were resorting to "private litigation" against the Union, and, as Prendergast's below-noted inquiry of Springer early in September indicated, the former then knew that William Kelley was raising a fund to retain counsel. The inference is therefore warranted that, when he spoke to Van Meter, Clark was aware that the dissident operators were contemplating litigation against the Union, and that his remarks to Van Meter were calculated to deter them from proceeding with such action. As such action was concerted activity protected by the Act, I find that, by Clark's solicitation of Van Meter to discourage the operators from proceeding therewith, the Company violated Section 8(a)(1) of the Act. There remains the question whether, as alleged in the complaint, Clark's remarks contained a threat of reprisal for giving information to the Board. The General Counsel's theory here appears to be that, in expressing fear for his job because his "testimony' '17 had been favorable to, and forced the Company to reinstate, the Kelleys, Clark was implying that the Company would not hesitate to take reprisals against anyone, including rank-and-file employees, who gave information to the Board adverse to ' S The record shows that Clark did in fact furnish an affidavit to the Board in the course of the Board 's investigation of the charges filed by William Kelley in 1964, and that Clark therein spoke well of the Kelleys' competence as employees The record fails to suggest how Van Meter could have known this had Clark not made the disclosure attributed to him by Van Meter 16 Van Meter opined that this incident occurred "when they were bringing this in on the dual employment of Jesse Jones and so forth " As the matter of Jones' alleged dual employment was the interests of the Company. Whether or not Clark intended his remark to be so construed, it was readily susceptible of such a construction. It is therefore found that Respondent thereby additionally violated Section 8(a)(1) of the Act. It is further alleged that, on or about September 29, the Company unlawfully interrogated its employees by requiring them to answer a question in an employment application about their union affiliation. This has reference to the fact that on September 28 and 29, the Company distributed to all its employees, about 500 in number, new employment application forms, which called for certain information not previously supplied relating to education and medical history, and which contained a question about union affiliation. The Company's personnel director, John Graham,"' testified that this question had been included in all the Company's employment application forms to enable it to maintain an index of its employees on the basis of union affiliation, so that it would know, in dealing with the various unions at the jobsite, which employees were represented by which union. He added that, after consulting with counsel, who questioned the propriety of this item on the form, he instructed his secretary to delete it from all the applications that had not yet been distributed, but such deletion was not effected in those that had already been passed out. However, there is no evidence that the employees who received the uncorrected forms, including a number of the operators, were apprised of the inadvertence, or told that they were not required to disclose their union affiliation;'`' and the operators may well have believed that the question on the form was designed to ascertain whether they were still members of the Union, which membership as found above had been consistently required by the Company as a condition of employment, and to ascertain whether any of its operators had again defected to District 50.20In view of these circumstances, it is found that the inclusion in the form of the question concerning union affiliation was coercive, and that the Company thereby violated Section 8(a)(1) of the Act. The complaint alleges that on or about November 2, Prendergast threatened an employee with discharge for concerted activities. In support of this, the General Counsel adduced testimony by Springer that on November 2, after the discharge of Robertson on that date, which is discussed below, the witness was called into Prendergast's office, and that Prendergast was "laughing" and told the witness he had eliminated one "agitator" and was going to eliminate some more, and that one was just then walking by the office whom he intended to eliminate. The individual last referred to, according to the witness, was Orvel Kelley. Prendergast denied that there was any such conversation, and it was shown at the hearing that Springer had twice been convicted of forgery. However, he had completed his second sentence in 1952 or 1953, and there was no evidence that he had had any difficulties with the law during the past 13 years. Moreover, I was favorably mentioned in Havard's letter of September 24, 1 construe this testimony to have reference to that letter "See fn 15, above " All references hereinafter to "Graham" denote John Graham, II. '" Those operators who testified on this point denied that they were told to ignore the question about union affiliation "' As already noted, a few weeks before the new applications were distributed , William Kelley had renewed his campaign to organize the operators on behalf of District 50 GRAHAM ENGINEERING 685 impressed by his demeanor and the specificity of his testimony.2' In view of this, I credit Springer and find that Prendergast made the foregoing remarks about getting rid of "agitators." As both Robertson and Orvel Kelley were at that time involved, as Prendergast admittedly knew,22 in the suit that had been filed against the Union, the clear implication of his statement was that he was planning to discharge all those so involved. 3. The failure to promote Orvel Kelley The complaint alleges that since March 30, 1965,223 the Company has refused to promote Orvel Kelley to chief operator because of his opposition to the Union, his filing of charges against the Company and the Union, his giving of testimony under the Act, or his involvement in concerted activities, and that the Company thereby violated Section 8(a)(1), (3), or (4) of the Act. Orvel Kelley was first hired in October 1963 and was employed as an operator until his discharge, together with his brother, on July 20, 1964. As related above, after charges were filed by William Kelley against the Company and the Union, both Kelleys were reinstated with backpay early in September 1964, and Orvel Kelley has since been employed as an operator. He was a plaintiff in the suit filed against the Union on October 6, and, as found above, on November 2 Prendergast cited him to Springer as one of the "agitators" who would be eliminated from the Company's employ.24 There was also some evidence that he participated in the distribution of District 50 cards in August 1965. Although Orvel testified that since his reinstatement in September 1964, there had been 11 promotions to chief operator, so far as the record shows Respondent since the May 10 cutoff date has promoted to chief operator only the following, on the dates shown: 1. McCairns, on May 18 2. Corley, on June 28 3. Revell, Junior, on October 4 4. Jack Clark, on October 4 5. Pape, on October 12.25 The gravamen of Orvel's complaint appeared to be that he had more seniority than those who had been promoted. However, nothing in the Union's contract requires that the Company consider seniority in making promotions. Moreover, of the five listed above, McCairns and Revell, Junior, had equal seniority with Orvel. While the General Counsel adduced testimony, which I credit, as to Orvel's competence in all phases of his work,'" there was no preponderance of evidence that Orvel was more competent than any of those who were promoted.27 Moreover, at the time of the promotion of McCairns and Corley, the only protected activity with which Orvel was associated was the filing of the charge on his behalf in July 1964, by his brother. Even if it be assumed that any discrimination against Orvel on that account would violate Section 8(a)(4) of the Act,"" the fact remains that Respondent had as much, if not more, reason to discriminate against Revell, Junior, for, he, like the Kelleys, was discharged on July 20, 1964, and after filing a charge on his own behalf, was reinstated on the same terms, and at the same time, as the Kelleys.29 Yet, he has at all times since his reinstatement retained his position of chief operator. In view of this, and in view of the remoteness of the incident, as well as the absence of any evidence that Orvel Kelley was more competent than McCairns or Corley, I do not find any discrimination against Orvel in their promotion. While, by the time of the promotion of Jack Clark and Revell, Junior, on October 4, Orvel had (in August) participated in the distribution of District 50 cards, there is no cogent evidence that Prendergast was aware of this activity. Nor is there any direct evidence that on October 4, Prendergast suspected that Orvel was involved in the preparation of the lawsuit against the Union that was filed on October 6,•1o or that prior to October 7, Prendergast knew that Orvel would be a plaintiff in that action. While it appears from Van Meter's version of his conversation with Roy Clark on September 22, 1965, which I have credited, that Clark made some disparaging allusion to the "Kelleys" in the context of his discussion of the operators' plans for a lawsuit, Springer testified that Prendergast about the same time referred only to William Kelley as the instigator of the litigation 31 Moreover, both Revell, Junior, and Jack Clark were like Orvel, plaintiffs in the lawsuit, and both were promoted only 2 days before the suit was filed. If one assumes that Prendergast on October 4 passed over Orvel because Prendergast knew of his involvement in the impending No effort was made to cross-examine Springer with regard to the details of his direct testimony 22 The suit had been filed about a month before and named Robertson and Orvel Kelley, among others, as plaintiffs Prendergast admitted that he had read a newspaper account of the suit published on October 7, which listed the names of the plaintiffs 2-1 This is presumably regarded by the General Counsel as the cutoff date under Section 10(b) of the Act However, as the allegation of a discriminatory refusal to promote Orvel first appears in an amended charge in Case 23-CA-2177, served on the Company on November 10, 1965, the appropriate cutoff date would seem to be May 10,1965 'a He was not , however, included in the December 31 layoff The General Counsel would have the Board attribute this to the fact that by that time a charge had been filed alleging discrimination against him in failing to promote him 2' See TX Exh 4(c) 26 The credibility of Prendergast 's testimony that Orvel's work on refrigeration equipment left something to be desired was impugned by his inept efforts to explain why in 1963 , when he was Orvel's supervisor on another job, he had given him a favorable rating for his work on refrigeration equipment 27 Only in the case of Pape did the General Counsel attempt to adduce any evidence on this point- in the form of testimony by Orvel's chief operator, Chatterton-and, although he professed to be familiar with Pape's work, Chatterton, when asked to compare the ability of Orvel and Pape, answered only, "I wouldn't make any estimate on that " There was , thus, no refutation of Prendergast's testimony that he regarded Orvel as less qualified than those selected for promotion 25 That subsection forbids discrimination only "against an employee because he has filed charges or given testimony under the Act" (emphasis added) However, the Board has construed Sec 8(a)(4) as protecting an employee, under certain circumstances , against discrimination because a charge has been filed by another on his behalf Briggs Manufacturing Co , 75 NLRB 569, 572-573. Burnside Steel Foundry Company, 69 NLRB 128, 136 (While the complaint alleges discrimination against Orvel for, inter alta , giving testimony under the Act, there was no evidence to support this allegation ) 29 See TX Exhs 2(a) through (f) and 4(b) "'Indeed, there is no evidence that Orvel was in fact so involved, apart from his apparent consent to be named as plaintiff in the action 1i Despite Prendergast's denial, I credit Springer as to this conversation. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawsuit, it becomes necessary to explain why he gave preference to the two others. There is as much reason to infer that he was aware of Revell, Junior's, involvement as that he was aware of Orvel's.:12 Moreover, it has already been found that Jack Clark in August indicated to Respondent that he would not disassociate himself from the anti-Jones group, despite Respondent's warning that he would not be promoted to chief operator unless he did so. Yet, this did not deter Respondent from promoting him. Under all the circumstances, I am not persuaded that Prendergast promoted Jack Clark or Revell, Junior, in preference to Orvel Kelley, for discriminatory reasons. As for Pape, by the time of his promotion, on October 12, Prendergast admittedly knew that Orvel was a plaintiff in the suit against the Union, and it may be inferred that this was what prompted Prendergast's disparaging reference on November 2 to Orvel as an "agitator," who would be eliminated. While there is, accordingly, persuasive evidence that by October 12, Prendergast was disposed to discriminate against Orvel, the General Counsel's case fails even here because of the aforenoted absence of any proof that Orvel was more competent than Pape."' It is accordingly concluded that, while the matter is not free from doubt, discrimination against Orvel Kelley in the matter of promotions has not been proved and dismissal of the instant allegation will be recommended. 4. The discharges a. On September 29 On September 29, the Company discharged William Kelley and Van Meter. The reason assigned for their discharge was their refusal to complete the new job application forms, which, as noted above, were distributed on September 29 to the operators. Although the discharges were simultaneous and had certain common features, an attempt will be made to deal separately with each. (1) Kelley Kelley testified that on the morning of September 29, when Roy Clark handed him the new form with instructions to fill it out, Clark was at a loss to answer Kelley's question about the purpose of the application; that the same afternoon, in response to an inquiry by Clark, the witness indicated that he had not completed the form because he was waiting for an answer to his previous question; that Clark then told him the purpose was to update the Company's records; that, not being satisfied with this, the witness proceeded to Prendergast's office where, in the presence of Clark and Van Meter, the witness twice reiterated his refusal to complete the application until he knew the reason therefor; that Prendergast ordered the witness to turn in his badge; that, when the witness refused, a discussion ensued, in the course of which Prendergast confirmed that the purpose of the new form was to update the Company's records; that the witness then stated that he wished to consult the Board and his attorney before completing the form; that Prendergast offered him the alternative of compliance or discharge, and told him that, if he was not satisfied, he might appeal to Personnel Director Graham; that the witness did not comply and did not go to Graham. Kelley explained that he balked at completing the form because he suspected that the Company wished to discharge him for his antiunion activities, and hoped to find some discrepancy between his answers in the new and the old form which it could use as a pretext for such discharge, and that he felt that under such circumstances it would be futile to appeal his discharge to Graham. Prendergast's version of the discharge interview did not differ materially from Kelley's, except that he made no reference to Kelley's alleged request for an opportunity to consult the Board and his attorney before deciding whether to comply with Prendergast's ultimatum. While admitting that at the time of the foregoing incident he had heard that Kelley was engaged in some dispute with the Union and Jones, Prendergast disclaimed any knowledge of the nature of the dispute 34 At the hearing, the General Counsel suggested that the only reason for the distribution of the new forms was the Company's hope that some of the operators would refuse to fill them out, thereby affording a pretext for their discharge. However, in his brief the General Counsel appears to have abandoned this rather speculative contention, in recognition of the uncontroverted evidence at the hearing that the new forms were distributed not only to the operators, but also to all the Company's 500-odd employees, including its salaried personnel; and the General Counsel's present position appears to be that, while the discharge of Kelley (and Van Meter) was not planned in advance, the Company utilized Kelley's fortuitous reluctance to complete the form as a pretext for discharging him, the real reason for such action being his involvement in the operators' antiunion activities. However, while it is clear from the record that the Company did not look with favor on such activities, and while it is found below that Robertson 's similar involvement was a factor in his discharge , I am not persuaded that the record preponderates in favor of a finding that Kelley's discharge was pretextual. In contrast '" Moreover, only 2 weeks before his promotion, Revell, Junior, had filed a grievance alleging discrimination against him by Prendergast and Roy Clark because in 1964 he had given "testimony" to the Board in support of the old charges against the Company. It is thus evident that, when he promoted Revell, Junior, Prendergast was aware of his foregoing "testimony," adverse to Respondent. '' See in. 27 above. While Pape was demoted on December 28 (See TX Exh. 6), such demotion appears to have been due to the general retrenchment effected at that time. At any rate, as the circumstances of such demotion were not litigated, it would not be proper to draw any inference therefrom adverse to Respondent. About a week after Pape's promotion, Orvel complained to Prendergast that he had been unjustly passed over. In his brief the General Counsel suggests that such complaint may have motivated any subsequent discrimination against Orvel, with regard to promotions. However, there is no evidence of any promotions after Pape's. '' During the period of several weeks before his discharge William Kelley was engaged in (1) an attempt to revive interest in District 50, (2) a campaign to raise funds to retain legal counsel to represent the dissident union members, and (3) an effort to obtain an investigation by a Federal agency of alleged improper payments by the Company to Jones. However, while Springer's testimony that Prendergast asked him about the fund that Kelley was raising indicates Prendergast 's awareness of that activity, there is no evidence that he knew about any of the other activities. Nor is there any evidence that the Company had any knowledge of the contents of Havard's letter of September 24 to the Union charging that there had been dual employment of Jones, and seeking an accounting of certain union outlays. GRAHAM ENGINEERING 687 with its summary and precipitous action in Robertson's case, it is clear from Kelley's own testimony that Prendergast repeatedly urged him to comply, and finally even offered him an unsolicited opportunity to appeal his discharge to Graham. It is immaterial whether this was due to the Company's unfortunate experience with Kelley in connection with his 1964 discharge, or merely to a desire to be fair to him. In any case, the consideration thus shown Kelley is difficult to reconcile with the General Counsel's "pretext" theory. Moreover, so far as the record shows, except for Van Meter, who was also discharged under circumstances discussed below, no one else of the 500 or so employees who received the new forms expressed an unwillingness to complete the form. Accordingly, there is no evidence or contention that there was any disparate treatment involved in Kelley's case. The General Counsel suggests only that the penalty of discharge may have been too severe in view of Kelley's testimony that toward the end of his interview with Prendergast he did not unequivocally refuse to complete the form but merely asked for time to consult the Board and counsel.'1-5 However that may be, the fact remains that Kelley, according to his own testimony, repeatedly balked at filling out the application on the spot, even in the face of an ultimatum that he do so or be discharged and that his conduct was therefore undeniably insubordinate. Reasonable men might well differ as to whether it would have been better policy for the Company to have overlooked such insubordination or whether the Company was justified in taking the position in the interest of maintaining plant discipline, that its employees were not entitled to refuse to comply, or to seek legal advice before complying, with on-the-job instructions. In any event, the Company's adoption of such position and its implementation thereof by discharging Kelley does not appear to have been so shocking or outlandish as to require a finding that the Company's motivation was discriminatory,-'6 particularly in view of the evidence cited above of the extreme pressure exerted by Prendergast upon Kelley to fill out the application and avoid discharge. " (2) Van Meter Van Meter, like Kelley, was handed the new application by Roy Clark on the morning of September 29. Van Meter testified that, when he asked why the new form was necessary, Clark answered only that the Company wanted it completed, that, when Clark inquired about the form later in the day, the witness stated that he could not complete it because he needed some information; that he was called into Prendergast's office at the same time as Kelley; that the witness told Prendergast that, in order to complete the form, he needed some data from a file he kept at home; that Prendergast asked the witness why he had not mentioned that before; that Prendergast then asked the witness if he wanted to see Graham; that, upon arriving at Graham's office with Clark, the witness again asked about the reason for the form; that Graham explained that it was needed to update the Company's records, and it would be useful in connection with promotions and transfers; that the witness then indicated that he was "satisfied with it," and Clark proposed that, since the matter was settled, the witness return to work; that Graham, however, stated that he would have to check with Prendergast; that there followed a series of telephone conversations in another office involving Graham and Clark; that Graham then returned to the witness and discussed that the Company would have to "make it stick" or "make it hold up," and he was discharged. Thus, if one credits Van Meter, in his discussion with Clark and Prendergast, (1) he not only did not refuse to complete the new form, but in effect indicated that he would do so after consulting his records, and (2) he was, nevertheless, told by Prendergast to see Graham and, notwithstanding Van Meter's apparent withdrawal of his objection to the form in the light of the explanation therefor tendered by Graham, the latter announced Van Meter's discharge after consulting with Prendergast." Prendergast testified, on the other hand, that Clark reported to him early on the morning of the 29th that Van Meter (as well as Kelley) was refusing to fill out the form; that at his interview that afternoon with Kelley and Van Meter, he asked both men to fill out the form; that Van Meter "just shook his head, and said, `No"'; that, acting on instructions by telephone from Graham, the witness then directed both men to fill out the form "on company time before you leave," and upon their refusal to do so, ordered them to turn in their badges; that Van Meter stood mute; that, after reporting this by telephone to Graham, who instructed him to discharge Van Meter (and Kelley), the witness did so, stating that the discharge might be appealed to Graham. As to the subsequent events, Graham testified that, after the reason for the new form was explained to Van Meter, he expressed concern that the execution of a new job application might affect his seniority; that the witness explained that there was no seniority provision in the Union's contract; that Van Meter seemed confused at that point; that the witness called Prendergast from another office to verify the fact that he told Van Meter the reason for the new form; that Prendergast asserted that he did and, at Graham's request, verified also that he had refused to complete the form; and that the witness then returned to Van Meter and confirmed his discharge. Graham denied that Van Meter ever offered to fill out the form. When asked why it was necessary for him to verify that Prendergast had told Van Meter the reason for the form, Graham explained that when he came to Graham's office, Van Meter seemed confused, as if he had never been told the reason for the 4' Van Meter corroborated Kelley to the extent of testifying that he heard Kelley tell Prendergast that he had "definitely not refused to fill out" the form However, Kelley admitted that Prendergast characterized Kelley and Van Meter as the only employees of the Company who had refused to complete the forms " See Cornwell Company, Inc , 161 NLRB 807 " Such evidence can be discounted only if it be assumed that Prendergast expected that Kelley would not yield to such pressure and would persist in his refusal However , apart from the speculative nature of such an assumption , it seems unlikely that, if he were seeking a pretext to discharge Kelley, Prendergast would take the risk that Kelley would act contrary to such expectation " Although Kelley was present during the exchange between Prendergast and Van Meter, he was not questioned about it by the General Counsel Clark was also present during the exchange, but I advised the Company's counsel, during the presentation of the defense, that there was no need to question him about that matter, as it seemed at that point in the hearing that there was no substantial dispute about that phase of the case In view of this, I draw no adverse inference from Clark's failure to testify on that point 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form. Graham acknowledged that, at Prendergast's suggestion , he called Roy Clark to the telephone. Clark's version of the interview was that Van Meter rejected Graham's request that he fill out the form, asserting that he thought it was illegal ; that Van Meter asked why the application was needed, and Graham explained that the Company was updating its records and it would aid the Company in making transfers and promotions ; that Van Meter still insisted that the form was illegal and never agreed to fill it out; that on this occasion Clark talked on the telephone to Prendergast, after Graham had left the telephone, and Prendergast merely asked what was going on, to which the witness replied that Graham was still talking to Van Meter. Prendergast's version of his telephone conversation with Graham was that the latter called to verify the fact that Van Meter (and Kelley) had refused to comply with a demand that they fill out the applications "on company time," and Prendergast corroborated Clark as to the tenor of their subsequent telephone conversation on that occasion.-"' It is apparent from the foregoing that while there are some minor discrepancies in the foregoing accounts by the company witnesses as to the circumstances of Van Meter's discharge, they were in substantial agreement on the critical points. Only the explanation offered for Graham's call to Prendergast leaves something to be desired. If one is to credit Graham and Clark, Van Meter at no time in his interview with Graham indicated any willingness to fill out the form, but either questioned the need therefor or flatly refused to fill it out, even after Graham, according to his own testimony, had launched into a lengthy explanation of the reasons for the form. It is not clear therefore why it was necessary for Graham to make certain that Prendergast had also explained to Van Meter the need for the form. On the other hand, certain aspects of Van Meter's testimony do not withstand scrutiny. If one is to credit him, he was merely a bystander during the exchange between Kelley and Prendergast, in the course of which, as already found, the latter repeatedly demanded that Kelley complete the form on the spot, and, when Van Meter interjected the remark that he needed time to review his records, Prendergast asked him why he had not so stated before, thereby implying that he regarded this as a reasonable request, and yet, in the very next breath indicated that Van Meter, like Kelley, was discharged subject to review by Graham. As Van Meter had been summoned to Prendergast's office at the same time as Kelley and for the same reason, Prendergast's testimony that his various ultimatums were addressed to both men seems the more cogent and, unlike Van Meter's foregoing cryptic version of his discharge, Prendergast's testimony that he discharged Van Meter after repeated flat refusals by him to comply with Prendergast's instructions sets forth a series of logically related events.40Moreover, Van Meter did not seem to be a candid witness in this area. Under cross-examination, he was markedly evasive as to his discussion with Kelley concerning the new form before their interview with Prendergast. (See also fn. 41, below.) Accordingly, I credit Prendergast and find that Van Meter, contrary to his testimony, did not indicate to Prendergast that he would comply, if given an opportunity to consult his records.4' I find further, in any event, that, as Prendergast testified, when pressed to comply on the spot, Van Meter merely stood mute. As to whether he finally indicated to Graham that he no longer had any objection to filling out the form, I am constrained to find that he did not. As already noted, I was not favorably impressed by Van Meter's candor in this area. Moreover, while the questionable explanation given by the Company's witness for the aforementioned telephone call may give rise to suspicion, such suspicion alone cannot overcome the effect of the aforecited testimony in the record, which I credit, that, as in the case of Kelley, Prendergast exerted extreme pressure on Van Meter to complete the form, and the uncontroverted evidence that, when such pressure failed, Prendergast offered him an unsolicited opportunity to appeal his discharge to Graham, who resorted to persuasion, explaining in some detail the advantages of the new form .42 Accordingly, I do not believe that the evidence preponderates in favor of a finding that Kelley and Van Meter were discharged for the reasons alleged by the General Counsel, and it will be recommended that the a' Both Graham and Clark disputed Van Meter's testimony that, after Clark spoke to Prendergast, Graham resumed his telephone conversation with Prendergast "" Moreover, Kelley's admission that Prendergast stated in the course of the foregoing interview that Kelley and Van Meter were the only employees out of the Company's entire work force who refused to complete the forms tends , if anything, to impeach Van Meter's version that he merely asked for more time and did not categorically refuse to comply 41 Moreover, even if he did so indicate, Prendergast would have been justified in believing that, as Van Meter's own testimony implies, he was not acting in good faith but was merely seeking a pretext for avoiding compliance with the Company 's demand For Van Meter admitted that, when Clark first asked him about the status of his application , Van Meter answered that he would not fill it out that day and that , when Clark inquired whether he would return it the next morning, Van Meter answered evasively , "Well, I am not positive of that because I need some more information " (Note , also, that, during his interview with Graham, Van Meter appears to have abandoned the foregoing pretext for not complying, for during that interview , according to his own testimony , he only questioned the reason for the form , and, when that was explained to his satisfaction, indicated that he was prepared to comply with the Company 's demand that he complete the application forthwith ) "' It is not clear, in any event , what the General Counsel proposes that the Board infer with regard to the content of the mysterious telephone call The General Counsel nowhere spells this out, and it would be sheer speculation to suppose that in this conversation Prendergast told Graham something about Van Meter's involvement in the antiunion movement which Graham did not already know Indeed, there is no evidence as to what Prendergast , himself, knew about such involvement other than what he may have learned from Clark about the failure of his efforts to induce Van Meter to oppose the filing by the dissident operators of any suit against the Union The General Counsel's position would seem, therefore , to require an assumption (1) that Clark had already told Prendergast, but not Graham, about this incident, (2) that Graham learned about it for the first time from Prendergast in the foregoing telephone conversation, and (3) that it was that information which motivated the discharge of Van Meter. (While Van Meter testified that he signed a card for District 50 in September 1964, there was no evidence that the Company knew of this or that a year later it still bore him ill will on that account On the contrary, the record shows that at the time of his discharge Van Meter enjoyed the status of a chief operator ) GRAHAM ENGINEERING 689 allegations of the complaint relating to their discharge be dismissed.43 b. On November 2 On November 2, Robertson was discharged by Prendergast, allegedly for reading a newspaper on the job. He was a plaintiff in the suit against the Union filed on October 6, and Prendergast admitted that he had seen a contemporaneous newspaper account of that suit which listed the names of the plaintiffs. According to Robertson, during worktime on the morning of November 2, he and several other operators scanned a newspaper summary of football scores to assist them in betting on the results of forthcoming games; and that about 1 p.m., about half an hour after the other employees had left, his foreman notified the witness of his discharge. None of the other operators allegedly involved in this incident was disciplined therefor. At the hearing, the Company contended that the immediate cause of the discharge was the fact that Robertson had violated a rule against reading extraneous material on the job.44 While it is undenied that such a rule had been posted in February 1965, Prendergast admitted that other employees who had not observed the rule had not been discharged but merely reprimanded. When asked to explain this apparently disparate treatment of Robertson, Prendergast asserted that the reading incident was merely the "final act" and that the following undisputed background matters influenced his decision. Robertson, who was hired in October 1963, frequently reported sick and on April 29, 1965, was discharged on that account. Due to the intercession of Jones, Robertson was rehired about July 8, on a 90-day trial basis, upon condition that he furnish a medical certificate that he was physically fit and discontinue his habit of reporting sick. However, between July 8 and November 2, Robertson failed to report for work at least 10 times because of illness. According to Prendergast, when he learned from Roy Clark on November 2 that Robertson had been reading a newspaper during worktime, he decided not to tolerate Robertson's shortcomings any more and ordered his discharge. However Prendergast was at a loss to explain why, despite his renewed absenteeism, and despite the fact that his reinstatement had been expressly conditioned on regular attendance, Robertson was retained until November 2.4i When pressed on this point, Prendergast's testimony became rambling, sometimes virtually unintelligible, and at other times apparently self- contradictory. Thus, at one point he attempted to minimize Robertson's renewed absenteeism, while at another point he seemed to condemn it. He finally confessed that he did not know why he hadn't discharged Robertson earlier.' Moreover, it has been found above that on November 2, after Robertson's discharge, Prendergast told Springer that he had gotten rid of one "agitator," and there is nothing in the record to explain why Prendergast so characterized Robertson other than the fact that he was involved in the lawsuit against the Union, as was Orvel Kelley, to whom Prendergast applied the same label on that occasion 47 It has already been found that in September Roy Clark attempted to bring pressure upon the dissident operators through Van Meter to desist from any legal action against the Union. In view of the foregoing circumstances, and in view of the ineptness of Prendergast's efforts to explain why he tolerated Robertson's flagrant absenteeism until the newspaper- reading incident, as well as the abundant evidence in the record of Prendergast's eagerness in general to maintain harmonious relation with, and advance the interests of, the Union, I do not credit his explanation of Robertson's discharge. I find rather that such discharge was motivated by the fact that, as Prendergast had learned on October 7, Robertson had joined in the suit against the Union and had thereby presumably rendered himself persona non grata to it and Jones.48 Accordingly, I find that, by discharging Robertson because of his identification with the antiunion "agitators," Respondent violated Section 8(a)(3) and (1) of the Act. 41 While it has been found that the new job application form contained an unlawful inquiry about employee union affiliation, and that the discharge of Kelley and Van Meter was for refusing to fill out the form , it is clear that such refusal was not because of, or limited to , the question about union affiliation , but extended to the entire application It is inferrable also that, having belatedly attempted to delete the question from the forms, the Company would not have pressed the issue had Kelley and Van Meter merely refused to answer that particular question Accordingly, the illegality thereof cannot be deemed to justify their insubordination or to render their discharges unlawful , and the General Counsel does not so contend " The Company' s witnesses also denied that they knew of any other operators being involved in this incident In any event, as noted below , the Company's defense is that Robertson was not discharged because of that incident alone but because of his absenteeism as well As the 90-day "trial" period expired on October 6, that would seem to have been the latest logical date to discharge Robertson for violating the condition upon which he was rehired Yet, there was no evidence that Prendergast at any time even reprimanded Robertson for lapsing into his old habits 46 The Company adduced testimony by Graham that, about a week before Robertson's discharge, Prendergast reported that Robertson was "up to his old tricks of absenteeism", that the witness indicated that the Company "would make plans to release" Robertson , and that the witness subsequently left town on business and did not return until after Robertson 's discharge This testimony was presumably offered to prove that a decision was reached before November 2, to discharge Robertson for absenteeism and that this decision was implemented by Prendergast, in the absence of Graham However, Prendergast makes no reference to any such conversation with Graham or to any such decision On the contrary , the entire thrust of Prendergast's testimony was that no decision was made to discharge Robertson until the "final act" of November 2. If there had in fact been any such decision as Graham describes, it is difficult to believe that Prendergast would have failed to mention such an obviously exculpatory circumstance In view of this, I do not credit Graham " The General Counsel suggests that the fact that Robertson on September 17 filed a grievance through William Kelley protesting his first discharge and seeking backpay was also a factor in Prendergast's decision to discharge Robertson again However, in view of my findings herein, there is no need to pass on this contention '" The fact that both in tolerating Robertson's renewed absenteeism after Jones' intercession on his behalf and in discharging Robertson after he had joined in the lawsuit attacking Jones and the Union, Prendergast was acting in accordance with Jones' presumed wishes , coupled with Prendergast's curious inability to offer any rational explanation for his tolerance of such absenteeism, warrants the inference that the true explanation, and one which Prendergast for obvious reasons was reluctant to disclose, was that in the one case, as in the other , Prendergast was bent on accommodating Jones 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. On December 31 Late in December, the Company decided for economic reasons to lay off 13 operators ,4" 7 of whom were alleged by the General Counsel to have been selected for discriminatory reasons. These seven were Revell, Junior, Q. Simmang, D. Simmang, Sledge, Sutphin, Roy, and Edge.5o (1) Revell, Junior The General Counsel points to the fact that Revell, Junior, not only joined in the lawsuit against the Union but also had filed two grievances in September 1965, both of which still pending at the time of his layoff. In explaining the selection of Revell for layoff, Prendergast testified that Revell was chief of a crew of "roving operators,""' that it was necessary for budgetary reasons to eliminate, among others, the equivalent of one crew of roving operators, including their chief, and that after due consideration Revell was chosen. When asked why he could not have simply demoted Revell, who was admittedly competent, laying off a less competent operator to make room for him, Prendergast answered that he feared that a demotion would impair Revell's morale and his value as an operator. (2) Q. Simmang As to this operator, the General Counsel cited his role as a plaintiff in the lawsuit and the fact that in February 1965, when he was demoted from chief operator to operator, he filed a grievance through the same attorney who subsequently represented the plaintiffs in the suit against the Union. Prendergast, on the other hand, asserted that, while Q. Simmang was eminently qualified for his job from the standpoint of educational background_ he had proved inadequate as a chief operator, necessitating his demotion,'' and that as an operator his efficiency was impaired by his physical condition.53 (3) D Simmang In addition to this individual's connection with the lawsuit,54 the General Counsel cites the fact that in the summer of 1965, he filed a grievance protesting his 4" It was stipulated that 10 were laid off effective December 31, The record shows that another, McCarthy, was not laid off until February 11, and as to the remaining 2 there is no evidence as when, if ever, they were actually laid off '" In addition , the complaint named "G E Price" as having been discriminatorily "discharged " at the same time However, as no evidence was offered in support thereof , the allegation as to him is dismissed See In 70, below As distinguished from the other operators , the roving operators had no fixed location, being required to service a number of installations The General Counsel did not challenge the propriety of this demotion " Early in 1965, Q Simmang had suffered a coronary attack while at work , and his condition was diagnosed as hypertension He suffered another mild attack late in 1965 Prendergast also cited the fact that he had had to reprimand Q Simmang for demonstrating his ignorance of operating procedure on a particular occasion However, Simmang testified without contradiction that on that occasion he had merely complied with an instruction by Prendergast , which he knew was erroneous, and transfer to a less desirable job, which grievance was rejected. According to Prendergast, this operator was selected for layoff because he did not respond to an on-the-job training program, and had been reported on one occasion to be asleep on the job Prendergast cited also the fact that the aforenoted transfer was effected at the request of Simmang's supervisor because of his lack of initiative. While Simmang denied that any supervisor had criticized his progress in the training program, there was no attempt to dispute Prendergast's testimony as to the sleeping incident and the reason for the transfer. (4) Edge Edge was not named as a plaintiff in the suit against the Union but had contributed money to defray the expense thereof, and he testified that in the latter part of September he had admitted to Jones that he had signed a card for District 50, which admission elicited from Jones an admonition not to forget how much less he had earned at his previous job. While Jones gave a different, innocuous version of this conversation, I credit Edge for reasons related below, where this incident is discussed in another context.5 5 Prendergast's testimony, substantially corroborated by Clark and Graham, was that Edge was selected for layoff because of his tendency to make adjustments in his equipment without obtaining the necessary permission from his chief operator, his lack of initiative, and his offensive personal habits, including his unorthodox attire while at work. Edge admitted that, because of his domestic situation, he had difficulty in keeping his uniforms in proper condition, that he found it necessary for that reason to wear other clothes on the job, and that his chief operator had reprimanded him therefor on a few occasions. He added that, after a general instruction had been issued on the subject, he wore his uniform at all times, except "under more or less unusual circumstances." He insisted, however, that other operators wore clothes at work other than their uniforms and had been retained by the Company. However, as it is clear that his nonconformist attire was not the only reason assigned for his layoff, the fact that such others were retained would not per se establish disparate treatment., " And there is no specific evidence that the Company was aware of Edge's support of the lawsuit. J7 that he had not deemed it politic to call the error to Prendergast's attention " He was a plaintiff therein and contributed financial support thereto The General Counsel also cites an occasion early in 1965 when Edge was deterred by Roy Clark from filing a grievance because of an injury suffered by Edge as a result of the Company's failure to adopt a safety suggestion made by him It is not clear whether the General Counsel contends that this was a factor in Edge's layoff nearly a year later, nor how such a contention could be supported Moreover, it is apparent from Prendergast 's testimony that he was more concerned about the untidiness of Edge's appearance , even in uniform , than about his failure to wear a uniform " Roy Clark's disclosure to Van Meter on September 22, of his awareness that some of the operators were planning "court action" may be sufficiently accounted for by the fact that in a letter of September 2, to Graham about his grievance over his demotion Q. Simmang disclosed that , "not being duly represented," he and others had resorted to "private litigation " GRAHAM ENGINEERING 691 (5) Roy The only reason for Roy's selection suggested by the General Counsel was that in June 1965, he complained to an unidentified individuals" in the Company's office that health insurance premiums were being deducted from Roy's pay without his consent,5 ' and indicated that he would take the matter to "the Labor Board," whereupon the individual in question stated that he would, too s" However, even if the individual was, as Roy supposed,''' a bookkeeper in the Company's employ, that fact would afford insufficient basis for imputing to the Company any knowledge of Roy's threat to seek the aid of the Board. According to Prendergast, Roy was selected for layoff on the basis of Roy Clark's report that he had shown insufficient interest in the on-the-job training program. This was corroborated by Clark, who added that Roy had occasionally been uncooperative,"' that he had expressed a preference for a job on the day shift, because he had difficulty in getting to sleep when he was assigned to a rotating shift, and that, if he had been retained, it would have been necessary to put him on a rotating shift. Roy admitted that he had expressed to Clark a preference for the day shift. (6) Sledge and Sutphin The General Counsel suggests no reason for the Company's selection of these two for layoff, other than that the Company (1) erroneously believed that they were involved in antiunion acitivities or (2) wished to give an air of legitimacy to the layoff of the other five operators discussed above."; As to (1), the General Counsel relies on testimony by Q. Simmang that Ruminer, the Company's new chief of operations, told the witness, when he was notified of his layoff, that Ruminer had been given "a list of names of men to lay off" and had been assured that when he got rid of those men all his "troubles would be over." Ruminer disputed this. In any event, the foregoing remarks seem as readily susceptible of an innocent construction as of the one which the General Counsel would place thereon. Thus, the remark allegedly quoted by Ruminer might as well have meant that, since those selected for layoff included the least desirable operators, their elimination would make his job easier. As to (2), above, this contention presupposes a finding that the five operators previously discussed were selected for discriminatory reasons. That is a question which remains to be considered. Graham testified that Sledge had been selected because he had been found asleep on the job twice, and had been suspended for 3 days on the second occasion. He was offered reinstatement in March 1966, but rejected the offer. Sledge admitted that he had "dozed" on the job64 and was suspended for that reason. As to Sutphin, Graham explained that his supervisor did not regard him to be as cooperative or as valuable as the only other operator in his department who was also under consideration for layoff. As evidence of disparate treatment in the cases of Sutphin and Sledge, the General Counsel cites the fact that, while each of them had been in its employ for about 2 years, the Company saw fit to lay them off, while retaining several operators who had been hired within the past 7 months. This raises an issue which cuts across all seven layoffs here involved; for both Simmangs, Revell, Junior, Edge, and Roy had also been with the Company for periods ranging from 1 year to more than 2 years. The record," in fact, shows that between May 1 and November 12, 1965, Respondent hired 13 operators, all of whom were retained on December 31. However, since the contract did not require the Company to follow seniority in layoffs, the foregoing circumstance is entitled to little weight, particularly when one considers that we are dealing here with a craft group whose skills were transferrable from one job to another. The General Counsel sought to attack the qualifications of four of the foregoing junior operators66 through testimony by Roy, Revell, Junior, and O. Kelley. However, while Roy's testimony implied that they were working as apprentices, when hired by Graham, it was stipulated that on December 27, all of them had second-class licenses 67 As to two other operators who were retained, Chief Operator White testified that one (Billingsley) was competent in "water treatment and control" but not with regard to "boilers and chillers," and Revell, junior, testified that the "attitude" of the other (Springer) who was a member of Revell's crew was not as good as that of another member of the same crew. The latter comparison of two operators, both of whom were apparently retained, is of little aid to the General Counsel's case. As to Billingsley, the record affords no basis for comparing Billingsley with the operators who were laid off. The fact that White was not satisfied with some aspects of his performance does not require a finding that top management regarded Billingsley as less desirable than any of those laid off.''" It was also shown that some of the alleged discriminatees assisted in "training" other operators. However, this apparently consisted merely in orienting 55 Roy referred to this individual as someone whom he "supposed" to be a bookkeeper 59 According to Roy, he was informed that the moneys so deducted were being remitted to the Union. 80 Roy testified that he contributed to the fund for the lawsuit and in November 1965, gave the Board an affidavit in connection with its investigation of the discharge of William Kelley and Van Meter, discussed above, and signed a card for District 50 in September 1965. However, there was no evidence of any company knowledge of these matters, and in his brief the General Counsel does not allude thereto B i See In 58 above. 82 Graham confirmed that Clark had mentioned this factor to him. 83 Both men signed cards for District 50 in September 1964 Sledge promptly withdrew his card at the behest of Prendergast. Sutphin was not solicited to withdraw his card and there is no evidence that the Company knew of his adherence to District 50 In any event , here, as elsewhere , the General Counsel does not contend that such adherence in 1964 was a factor in the layoff action As to Sledge, there is also uncontroverted evidence that in November 1965 he gave an affidavit to the Board in connection with the investigation of the instant charges and that, upon his return from the Board 's office, his supervisor asked him if he had said anything to embarass Prendergast It does not appear what reply, if any, Sledge made. 64 He denied , however, that this happened more than once 65 T.X Exh. 4(c) 66 Cates, Ticer, B. Jones, and Spake. 87 TX Exh. 4(c). 68 It is clear from White's testimony that he was not consulted about the layoffs. The reason therefor was not explained. 298-668 0-69-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD newly hired operators as to the routine of their new duties. In any event, this circumstance sheds little light on the relative value of the operators as of the date of the layoffs The General Counsel also elicited testimony concerning the Company's action in recalling certain of the laid-off operators. It appears from Prendergast's uncontradicted testimony that in the spring of 1966, the Company rehired three of the laid-off employees to fill vacancies occurring since their layoff, and that these three were Price, D. Cox, and McCarty. Of the seven alleged discriminatees only one, Sledge, was offered reemployment, which offer he rejected. Prendergast acknowledged that on September 21, 1965, he had recommended suspension of Cox for engaging in "unproductive" activities during work hours but, when asked why he recalled Cox rather than Q. Simmang, Prendergast asserted that, despite his disciplinary record, Cox's "over-all work" was much better than Simmang's. Since McCarty survived the original retrenchment of December 31, and was not laid off until February 11, 1966, he was presumably regarded by the Company as a more desirable employee than the others. Nor can any inference adverse to the Company be drawn from the fact that Price was recalled, since he was included in the original list of alleged discriminatees,04 and his case was not litigated by the General Counsel only because he was not available to testify at the conclusion of the General Counsel's case .70 Hence, it cannot be assumed that he was recalled in preference to one of the seven alleged discriminatees because he did not bear the same taint of involvement in concerted activities. All of the foregoing falls short of proving that the Company in fact regarded any of the alleged discriminatees as a more desirable employee than those who were retained or recalled. The Company's testimony as outlined above concerning the shortcomings of the operators selected for layoff was in the main not specifically contradicted, 71 and I do not consider such testimony as so implausible as to require that it be given no credence. It would seem that, in this regard, the strongest cases for the General Counsel were those of Q. Simmang and Revell, Junior. Simmang's qualifications, from the standpoint at least of his educational background, were admittedly outstanding. Moreover, in his case Prendergast committed thefaux pas of citing a reprimand for a mistake, for which, according to Simmang's uncontradicted testimony, Prendergast, himself, was at least partly responsible. Yet, it is undisputed that it had been necessary to demote Simmang in February 1965 because of his inadequacies, and that he had a coronary condition which the Company might well have deemed to impair his efficiency. As for Revell, Junior, as already noted, he had been elevated to chief operator on October 4, and the General Counsel properly raises the question why, in view of his admitted competence, he was not at least retained as an operator. The Company's answer that he was not so retained for reasons of morale may be deemed suspect. However, any demotion entails the risk that the employee 09 See fn 50 above. 10 After all his other witnesses had testified , the General Counsel explained that Price had left the hearing room to receive medical treatment and had not returned, despite his promise to do so. Upon my refusal to delay the proceeding to await Price's possible return , the General Counsel rested his case r' 1 do not regard as adequately refuting such testimony the fact that , as some of the laid-off operators testified , they had not been criticized by their supervisors for such shortcomings, that affected will develop a negative attitude to his work and the degree of such risk depends on the temperament of the employee, a factor which management is normally in a position to evaluate .72 While some of the reasons assigned by the Company, such as Edge's unorthodox attire, may seem relatively trivial, it must be remembered that the Company was required to choose among 50-odd operators, all of whom were admittedly doing an adequate job. In any event, even if it be assumed that the Company retained or recalled operators whom it regarded as less competent than one or more of those who were laid off and not recalled, the question would still remain whether such disparity of treatment was for reasons proscribed by the Act, or for some other reason, such as nepotism''' or personal predilection. In an effort to supply an answer to this question, the General Counsel adduced considerable testimony concerning the involvement of some, at least, of the alleged discriminatees in (1) antiunion activities and (2) grievance activities, and he contends that it was such activities that prompted their layoff. The validity of this contention will be next considered. d. Antiunion activities The principal activity was the lawsuit against the Union, which was filed on October 6. It has already been found that Prendergast discharged Robertson because of his known participation in that lawsuit as a plaintiff and threatened to get rid of other such "agitators," and it is clear that at the time of the layoff Prendergast knew that Revell, Junior, and the Simmangs were also plaintiffs in the court action; and the record amply attests Prendergast's solicitude for the advancement of the interests of the Union. Accordingly, as to these three the General Counsel may be deemed to have proved that the Company was disposed to discriminate against them because of their known involvement in the litigation with the Union. However, any attempt to analogize their case to Robertson's encounters a serious roadblock in that, while there is no evidence that the Union opposed Robertson's discharge, there was uncontradicted evidence that the Union strenuously objected, in effect, to the selection for layoff of any of the seven alleged discriminatees. Thus, the • record shows that I find that on December 10, upon learning that the Company was considering a reduction in force, Jones wrote Graham a letter in which he opposed the layoff of any operators, contending that such action would not be compatible with efficiency of operations and requested a meeting to discuss the matter, and that on December 27, Jones met with Graham and, after vainly opposing any layoffs, demanded that the Company lay off on the basis of strict seniority, which demand Graham rejected. While it appears from Jones' testimony that he did not at this meeting know what employees had been selected for layoff, he presumably learned of their identity by their work had on occasion been praised by their supervisors, or that their supervisors had given them a letter of recommendation for use in seeking other employment 72 Prendergast testified that he based his view as to Revell's probable reaction to a demotion on the marked improvement in his morale when he became chief operator. 13 That this was a factor in Prendergast's employment policies is strongly suggested by the record GRAHAM ENGINEERING December 29,'4 for on that date he wrote the Company as follows: In the meeting of December 27, 1965, you once again insisted you were not going to lay off the operators on a strictly seniority basis and have since carried out the layoff as you stated. I take this opportunity to officially protest this method in which you laid off our people and this union will seek Legal Counsel and persue [sic] whatever course we feel is legal to get our people reinstated. It is further found, on the basis of Jones' uncontradicted testimony, that he thereafter consulted his attorney, who advised him that he had no recourse against the Company under the contract. At the hearing, the General Counsel sought to neutralize the effect of the foregoing circumstances by suggesting that, in objecting to the Company's action, the Union was not acting in good faith ,7' and he cited the fact that in August 1964, the Union had protested the discharge of the Kelleys. However, the proceeding involving the legality of their discharge was disposed of without any determination of that issue'76 and, while the General Counsel had an opportunity to litigate it here, he did not do so. Accordingly, there is no record basis for finding that the Union's 1964 protest was spurious, and no inference may, therefore, be drawn therefrom that the Union's like action in 1965 was insincere." Accordingly, in order to find that involvement in the lawsuit was a factor in the layoff selection, it is necessary to assume that the Company was more concerned than was the Union about the implications of that litigation, even to the point of rebuffing the Union's efforts to save the jobs of the litigants. In support of such an assumption the General Counsel suggests that the court action may have been of special concern to the Company because of a cryptic reference in Attorney Havard's letter to the Union of September 27, to the alleged "dual employment" of Jones .7" However, the lawsuit thereafter filed named only the Union as defendant and sought only an audit of the Union's books; and there is no evidence in r' The testimony of those laid-off operators, who appeared to have a clear recollection of the matter , was that they were notified of their layoff on December 27, to be effective on or about December 31. Jones testified that at their December 27 meeting Graham did not disclose the names of those selected for layoff and that Jones did not know of their identity "prior to the layoffs " As Jones' letter of December 29, quoted below in the text, reflects knowledge of their identity on that date , I take such testimony to mean that he did not learn thereof until after December 27, the date of their notification of layoff. In any event , Jones must have realized that his insistence on a strict senionty policy would frustrate any plan to discriminate against the seven named in the complaint , since they were among the most senior employees r' Implicit in this suggestion is the assumption that the Company knew that the Union's insistence on seniority was mere camouflage and for that reason ignored the Union's demand ]s As already noted, the matter of their discharge was disposed of by the Union's execution of a settlement agreement in Case 23-CB-555, and by the withdrawal of the charge against the Company in consideration of the reinstatement of the Kelleys with backpay 77 In his brief, the General Counsel does not renew the foregoing attack on the Union 's good faith 78 Section 302(a) of the Act imposes sanctions on an employer 693 any case that the Company was aware of the contents of Havard's letter. At the hearing, the General Counsel asserted that the Company may have been motivated by a desire to preserve the benefits of its contract which would be jeopardized by the advent of a rival union. However, the fact that the Union was not indifferent to this peril is amply attested by the findings below as to the measures taken by it to combat dual unionism . Accordingly, the fact that the Union, nevertheless, opposed the December layoffs is persuasive that the Union did not regard the alleged discriminatees as posing any threat to its incumbency;''' and the record affords no basis for inferring that the Company had reason to take a different view or to reject the Union's judgment in a matter of such vital concern to it N0 Moreover, as to Edge, Sutphin, Sledge, and Roy, there is no evidence that the Company was aware of their participation in the financing of the lawsuit or of their current adherence to District 50, or suspected that they had any other connections with activities inimical to the Union Accordingly, upon consideration of all the foregoing circumstances, it is concluded that the evidence does not preponderate in favor of a finding that any of the seven alleged discriminatees was selected for layoff because of their antiunion activity or because of a desire to protect the incumbency of the Union. e. Grievance activity Sometime before his layoff D. Simmang protested his transfer to a different building; and, in September 1965, Revell, Junior, filed two grievances, the first protesting Roy Clark's performance of the work of an operator, and the second protesting a reprimand administered by Prendergast for remaining on the premises while off duty."' The latter grievance, which was in written form, and is dated September 20, 1965, was offered in evidence. It contains a number of statements calculated to arouse the ire of the Company x' Yet, only 2 weeks later Revell, Junior, was promoted to chief operator. In any event, this for certain payments to a representative of his employees, other than as compensation for services rendered as an employee The General Counsel contends that while on Respondent's payroll Jones rendered no services for the Company However, there is insufficient evidence on that point in the record 99 So far as the record shows, only Edge was known by the Union to have signed a recent card for District 50 W Kelley, the leader of the District 50 movement , was no longer in the Company's employ, and the lawsuit, itself, did not challenge the Union's right to represent the operators 80 Moreover, the General Counsel's position presupposes that the Company had reason for preferring the Union to District 50 However, there was no evidence or contention that the current contract was particularly favorable to the Company On the contrary, whatever evidence there is on the point indicated, at least in the matter of wages, that contract provided for substantially better terms than those prevailing in the area s' According to Revell, Junior, he was discussing "union business" on that occasion with Orvel Kelley "' Thus the grievance , inter alia, taxes Prendergast and Roy Clark with discriminating against the grievant because he gave "testimony" to the Board in the 1964 case in support of the charges against the Company, and asserts that the disciplinary action against him by Prendergast was for the purpose of intimidating the grievant , in violation of his rights under the Act. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD theory that the selections for layoff were motivated by resentment over resort to the grievance procedure would not account for the selection of Sledge, Sutphin, Edge, and Roy,83 none of whom was shown to have filed any grievance with the Company. In view of this, and as the Company saw fit to promote Revell, Junior, despite the fact that he filed more grievances than any of the others, and despite the provocative language of his second grievance, I am not persuaded that grievance activity was a factor in the Company's layoff selections. Accordingly, it is concluded that there is no preponderance of evidence that any of the seven alleged discriminatees was selected for layoff because of his concerted activities, and dismissal of the instant allegation will be recommended. 5. The case against the Union a. Postsettlement conduct (1) The 8(b)(2) issue The allegation of the complaint that in June 1965, the Union unlawfully caused the Company not to hire Koppenol has already been discussed and found without merit. (2) 8(b)(1) incidents The complaint alleges that on or about September 15, 1964, Teague threatened employees with discharge if they continued to engage in protected, concerted activities. William Kelley testified that at a union meeting in the latter part of September 1964, Teague stated that every member of the Union who had signed a card for District 50 would be given a chance to withdraw and that "any member that was interested in their job would withdraw." The witness added that on this occasion Teague also warned that those who refused to withdraw from District 50 would be tried by the Union on charges of dual unionism and expelled. Springer testified that at the foregoing meeting Teague warned that he was "going to find some way to get rid of" those who did not withdraw the cards they had signed for District 50, and that Springer thereafter, at Jones' solicitation, signed a letter requesting return of his card. While Teague made no bones of the fact that he had warned all the operators that he would file charges against "anybody that was practicing dual unionism," he denied that he had threatened any operators with discharge for adhering to District 50. On the basis of demeanor and as Springer's testimony tends to corroborate him rather than Teague, I credit William Kelley and find that, in addition to threatening expulsion for dual unionism, Teague on that occasion intimated that the Union would secure the discharge of those operators who refused to withdraw from District 50, and it is further found that the Union thereby violated Section 8(b)(1)(A) of the Act.84 The complaint alleges that during the latter part of September 1964, Union Agent Jones unlawfully solicited employees to withdraw from District 50 and threatened reprisals against those who failed to do so. It is not disputed that during the latter part of September 1964, Jones solicited operators who had signed cards for District 50 to sign letters prepared by him asking District 50 to return their cards. It is also undisputed that, at Jones' request, Prendergast aided in such solicitation. The Union denies, however, that such solicitation was reinforced by threats of reprisal. It has already been found that at a union meeting Teague threatened discharge of those operators who refused to retract their cards, and , as it is inferrable from the timing, as well as the subject matter, of Teague's threat that it was designed to facilitate Jones' concurrent solicitation activities, there is no need to determine whether, as alleged here, Jones additionally voiced such a threat 85 While it may well be that the solicitation of employees by one union to repudiate a rival union would not per se be unlawful, the_ situation is different where, as here, such solicitation occurs in the context of a threat of reprisal against those who refuse to repudiate the rival union, and the employer is enlisted to aid in such solicitation. Accordingly, it is found that under the foregoing circumstances the solicitation was coercive and that the Union thereby violated Section 8(b)(1)(A). It is further alleged that on or about April 30 and June 18, 1965, Jones informed employees that membership was a prerequisite to employment by the Company. Search of the record fails to reveal any evidence pertaining to the April 30 allegation. As to June 18, reference is here presumably intended to the testimony of Koppenol, which I have credited above, that about that date, at the direction of Prendergast, he applied to Jones, who told him in effect that he could not get a job with the Company, because he was not a union member. Even though this accurately described the Company's unilateral closed-shop policy, the statement was nonetheless coercive, particularly in the context of Jones' admitted simultaneous solicitation of Koppenol to join the Union, and in view of the circumstances under which Koppenol was referred to Jones. Accordingly, I find that the Union thereby violated Section 8(b)(1)(A) of the Act. It is next alleged that on or about September 15, Jones illegally interrogated an employee about his activities on behalf of District 50, threatened to cause his discharge because he had signed a card for District 50, and threatened his discharge unless he ceased opposing the Union. The employee involved is Edge, who testified that in September 1965, Jones approached him while at work and asked him if he knew anything about the District 50 cards,86 and that, when the witness indicated that he knew 83 As already noted, while it was shown that Roy had protested to an unidentified office employee that group insurance premiums were being deducted from his pay without his consent, there is insufficient basis for imputing to the Company any knowledge of such protest. 14 In view of this finding there is no need to consider whether, by Teague's threat to secure the expulsion from the Union of those members who supported District 50, the Union additionally violated Section 8(b)(1)(A). (In view of the "closed-shop" conditions existing at the Company's project , such a threat was calculated to instill in the operators fear of discharge if they adhered to District 50 See Gibsonburg Lime Products Co., 121 NLRB 914 But cf. Pittsburgh- Des Moines Steel Company, 154 NLRB 692, holding that a union is privileged to expel a member for supporting a rival union, even though there is in effect a union -security contract ) 85 The General Counsel's allegation of a threat by Jones is apparently based on a misconstruction of Spnnger 's testimony as attributing such a threat to Jones as well as Teague. "S At that time, as already related, there was a resurgence of organizing activity for District 50. GRAHAM ENGINEERING 695 "very little" about them, Jones expressed gratification that the witness had not signed such a card, whereupon he volunteered that he had in fact done so. According to Edge, Jones then abruptly broke off the conversation but, as he walked away, turned to ask the witness if he remembered how much he had earned on his previous job, and admonished him not to forget how much better off he was now. Jones' version was that on that occasion he merely asked Edge if he wished to sign a card for the Union in connection with a petition for an election, and that Edge put him off. In view of the circumstantiality of Edge's testimony, I credit him, and find that Jones' question as to what Edge knew about the District 50 cards was calculated to elicit from him some clue as to the extent of Edge's own involvement in the defection movement"' However, I have difficulty in inferring a threat of discharge from Jones' allusions to the higher wage scale on Edge's current job as compared with his prior job. Such allusion may as well be construed as a reminder to Edge that the Union had a claim to his loyalty because it had negotiated the relatively high wage scale enjoyed by the Company's operators. Interrogation having been found, the question remains whether the questioning of an employee by a union concerning his support of a rival union may be deemed coercive. In a recent case,as the Board found that a union violated Section 8(b)(1)(A) by questioning employees about their participation in a campaign to deauthorize the union, in the context of a threat to keep those involved in such activity under surveillance, and of actual surveillance of such activity. Here, the interrogation occurred against the background of Teague's threat at a union meeting of reprisals against adherents of District 50. While such threat was relatively distant in time from the instant episode, it was so closely related to the subject matter of Jones' interrogation (adherence to District 50) as to warrant assessing the impact of such interrogation in the light of such threat. So viewed, I find the interrogation unlawful."" As it has been found that, after the execution of the settlement agreement, the Union violated the Act in the various respects noted above, it follows that the settlement was properly set aside by the Regional Director and it becomes appropriate to consider next the alleged presettlement violations. b. Presettlement conduct It is alleged that on or about April 14, 1964, Jones threatened an employee with reprisals if he engaged in protected, concerted activities. This presumably refers to an incident involving Elliott and Jones. On April 13, 1964, these two had attended a union meeting at which a vote was taken on whether to exclude Jones because of his then status as a supervisor for the Company. It was voted to permit Jones to remain , after he assured those present that he was about to resign his position with the Company. According to Elliott, he and Revell, Junior, were among those who voted to exclude Jones, and the next day Jones indicated to Elliott his displeasure over the foregoing incident, and declared, "I get you a job out here and you turn around and gut me ... I want to tell you ... to keep your shirts clean .... In the event you ever need any help, don't come to me." According to the witness, Jones also told him that Jones had interceded for him when he was blamed by the Company for a breakdown of equipment, and, referring to Revell, Junior, Jones stated, "I can get his job anytime. He is sixty-seven years old," and added that he would "get the people that engineered what happened at the meeting." Jones' version was that, after dissuading management from discharging Elliott because of a breakdown for which he was held responsible,`" he happened to meet Elliott and warned him to keep his nose clean or he would get in trouble. Jones denied that he had criticized Elliott for turning on Jones at a union meeting or that he was aware that Elliott had ever opposed Jones at such a meeting or elsewhere, or that he had warned Elliott not to seek any help from Jones, and he added that, when it was reported to him that Elliott had misconstrued as a threat Jones' foregoing remark about keeping his nose clean, he sought Elliott out and assured him that he meant only to caution him to be more careful in his work, because the Company had threatened to discharge Elliott. The foregoing raises a credibility issue,"' which need not, however, be resolved, in view of my findings below As already noted, on April 14, Jones was a supervisory employee of the Company and, according to Teague's uncontradicted testimony which I credit, was officially on leave from his union post, and drew no pay from the Union with respect to that period. Accordingly, even if one credits Elliott, Jones' remarks must be regarded as relating either (1) to action he proposed to take in his then capacity as a company supervisor or (2) to action to be taken in his future capacity as a union agent, if and when he resumed his position with the Union. As to (1), the Union clearly would not be liable for a threat delivered by one who was at the time a company supervisor concerning action he would take in that capacity. Nor is it apparent how the Union can be held responsible for a threat by such a supervisor concerning action he would take, if and when he again became a union agent. In his brief, the General Counsel seems to contend that, even during his tenure with the Company, Jones continued to be an agent of the Union. However, absent any evidence to the contrary, it must be presumed that, while on leave from his union post, Jones had no duty or authority to act for the Union. Even if it be true that, as William Kelley testified, Jones promised at the union meeting that the next day (April 14) he would resign from his job with the Company and return to his union post, Jones could not thereby vest authority in himself to speak for the Union as of April 14, when the 87 That this was, moreover, in fact Jones' purpose in putting the question is indicated by his quickness to infer from Edge's answer that he had not signed a District 50 card 88 Skorman 's, Inc., d/b/a Skorman's Miracle Mart, 160 NLRB 709. 88 In equating Jones' interrogation of Edge with employer interrogation , I have given weight to the fact that, when he first applied to Prendergast for work, Edge was referred to Jones about joining the Union, and, after joining , was notified by Jones to report for work. Under these circumstances , Edge could hardly fail to regard the Union as exercising substantial control over his job tenure. 8° Elliott admitted that there had been such a breakdown but denied that he had been criticized therefor. °i According to William Kelley 's testimony, as well as the official minutes of the meeting, the vote to permit Jones to stay at the meeting was unanimous . If so, it would seem to be necessary to reject not only Elliott's testimony that he and others voted to exclude Jones, but also his testimony implying that Jones threatened reprisals against Elliott and Revell, Sr , or anyone else because they had so voted 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged threats were delivered. Jones did not in fact return to his union post until May 1, and the Union could not be bound by any assertion he might have made on April 13 as to what his status would be on April 14. In view of this, I perceive no legal basis for imputing Jones' foregoing alleged remarks to the Union and will recommend dismissal of this allegation. The complaint, as amended at the hearing, alleges that on July 27, 1964, the Union threatened reprisals against employees "for going to the Board " Sutphin testified that in July 1964, he attended a union meeting, at which Teague referred to the fact that the Kelley brothers had "gone to" the Board, and asserted, "They are getting no damn help from this local union." According to Sutphin, Jones echoed these sentiments. Teague's version was that at this meeting he told the employees that he "had no intention of helping the Kelleys to arbitrate a discharge case that they had already taken to the Board and charged the union was responsible for [sic]." In its brief the Union appears to argue that Teague' s statement , as related by him, was a privileged explication of the Union's position that it could not properly assist the Kelleys to process a discharge grievance because it would thereby be placed in the anomalous position of, in effect, presenting a grievance against itself. However, even as related by him, Teague's remarks did not make it clear that he was merely explaining what the Union considered proper under the circumstance to avoid a conflict of interest, and such remarks were readily construable by his unsophisticated audience as a threat of reprisal against the Kelleys for filing charges This was true a fortiori of Sutphin's version of Teague's statement, which I credit 92 Accordingly, it is found that, by Teague's statement, in effect, that because of the pending charges the Union would in the future reject any request by the Kelleys for its assistance as their representative, the Union violated Section 8(b)(1)(A) of the Act.93 THE REMEDY As it has been found that the Company violated Section 8(a)(1) and 12) of the Act, and that the Union violated Section 8(b)(1)(A), it will be recommended that they be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Company violated Section 8(a)(3) and (1) of the Act by the refusal to hire Koppenol on June 18, 1965, and by the discharge of Robertson on November 2, 1965. It will accordingly be recommended 92 1 rely not only on demeanor but also on the fact that Jones, who, according to Sutphin 's uncontradicted testimony, was present on that occasion , did not dispute Sutphin's version of this incident 93 At the hearing, I struck paragraph 8(a) of the complaint, which alleged participation in, and surveillance of, the April 13 meeting by Jones while he was a company supervisor, and that the Union thereby violated Section 8 (b)(1)(A) of the Act In so doing, I stated that , even if Jones was at the time acting as a union, rather than a company, representative , there would be no violation of Section 8(b)(1), because as a union representative he was entitled to attend a union meeting. While the Board has found to be unlawful the surveillance by a union of a meeting of a dissident group, (Skorman's, Inc., supra), here, so far as the record shows, the meeting was one duly called by the Union and there was no evidence that it was proposed to consider at the meeting any that it be required (1) to offer Robertson reinstatement to the same or substantially equivalent position, without impairment of his seniority or other rights and privileges, and (2) to offer Koppenol employment as an operator or in a substantially equivalent position. It will also be recommended that the Company be required to reimburse them for any loss of pay they may have suffered by reason of the discrimination against them, by paying to them a sum of money equal to the amount they would normally have earned from the date of such discrimination to the date of the offer of reinstatement or employment specified above, less their net earnings during that period. Backpay shall be computed on the basis of calendar quarters, in accord with the method prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to net backpay, in accord with Isis Plumbing & Heating Co., 138 NLRB 716. The General Counsel contends that the Company should, in addition, be required to reimburse the operators for dues and initiation fees paid to the Union within the period beginning 6 months before the service of the relevant charge upon the Company. As the allegation of an unlawful requirement of union membership first appears in the amended charge in Case 23-CA-2177, which was served on the Company on November 10, 1965, the General Counsel is in effect seeking reimbursement of all fees and dues paid since May 10. 1965 It has been found that since that date the Company maintained in effect a policy of hiring only union members. and that all the operators hired since that date were in fact union members. However, while there is ample evidence that certain operators (hired before the cutoff date) were coerced by the Company to join the Union, and a reimbursement order is warranted as to them, there is no evidence as to the extent of such coercion, if any, with regard to the hiring of other operators. For aught that appears in the record, such operators may have been union members even before they applied for jobs with the Company, and, if so, the fact that under the Company's closed-shop policy they would not have been hired but for "uch membership does not suffice to establish coercion to join the Union such as would warrant a reimbursement order.94 However, the record shows that both before and after the cutoff date, certain of the operators signed authorization cards for District 50. thereby indicating that they no longer desired to be represented by the Union; and, as to such operators, the inference is warranted that, but for the Company's closed-shop policy, they would have resigned their union membership at or about the date of signing such cards.95 Accordingly, it will be recommended action inimical to the Union, or that Jones was there for any reason other than that he was still a union member Finally, the fact that, as found above , Jones was not at the time acting as a union representative affords sufficient ground in itself for dismissing the foregoing allegation (While Jones' presence at the meeting while employed as a company supervisor might afford a basis for finding surveillance by the Company, in violation of Section 8(a)(1), no such violation was alleged, because of the limitations of Section 10(b) ) 94 Local 60, Carpenters [Mechanical Handling Systems] v N.L.R.B , 365 U S 651, Majestic Weaving Co., Inc., of New York, 149 NLRB 1523 95 While some of the District 50 adherents retracted their cards, I can give no weight to such retraction as evidencing a bona fide repudiation of District 50, in view of the circumstances under which such retraction occurred, as related above GRAHAM ENGINEERING that the Company be required to reimburse with interest ,96 all dues, initiation fees, and assessments paid or withheld since May 10, 1965, with respect to those operators, who, as found above, were specifically directed by the Company to become union members as a condition of employment, or who, as shown by the record, signed authorization cards for District 50, before that date.97 In the case of those signing such cards after that date, it will be recommended that such reimbursement be ordered with respect to dues and assessments paid since such signing. The General Counsel further urges that, in view of the uncontroverted evidence that the Company executed a contract with the Union's International parent body covering the instant project before any representative complement had been hired,98 the Company should be ordered to withdraw recognition from the Union.99 Respondents contend that any such prehire contract was authorized by Section 8(f) of the Act, which permits such contracts between an employer engaged primarily in the building and construction industry and a building trades union, "covering employees engaged (or who upon their employment will be engaged) in the building and construction industry." As I reject the General Counsel's instant request for other reasons, noted below, I do not pass on this contention. Respondents point out that, in any event, the signatory of the contract in issue was not the Union but its parent body, which was not given notice of, nor made a party to, this proceeding. Under the decision of the Supreme Court in the Consolidated Edison case,' the absence of such notice would seem to be fatal.2 Accordingly, invalidation of the instant contract will not be recommended. CONCLUSIONS OF LAW 1. By requiring membership in the Union as a condition of employment, the Company has violated Section 8(a)(2) and (1) of the Act. 2. By coercively interrogating employees about their union affiliation, by promising promotion if employees would desist from concerted activities in opposition to the Union, by soliciting an employee to dissuade other employees from such concerted activities, by implying that it would visit reprisals upon employees for giving the Board information adverse to the interests of the Company, and by threatening employees with reprisals for 56 See Seafarers International Union, of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142. 91 While it is clear from the foregoing that the remedy here recommended is based on events occurring before the cutoff date under Section 10(b), the Board has held that it is not barred from basing remedial action on prelimitations conduct , even though no violation finding might be predicated thereon Lundy Manufacturing Corporation, 136 NLRB 1230, enfd . 316 F.2d 921 (C A 2). There, although it found only assistance to the incumbent contracting union within the 10 (b) period, the Board ordered withdrawal of recognition on the basis of the employer's prelimitations conduct in coercing employees to designate the Union as their representative and granting it recognition on the basis of such designation . Here, by analogy , it seems proper, in framing a remedy for the Company 's maintenance of closed-shop conditions during the 10(b) period , to take into account prelimitations events demonstrating the coercion of particular employees with respect to acquiring or retaining union membership 96 The contract was executed on March 13,1963, for a term of 1 697 concerted activities, the Company has violated Section 8(a)(1) of the Act. 3. By discriminating against an applicant for employment because of his nonmembership in the Union, and by discharging an employee because of his involvement in concerted opposition to the Union, the Company has violated Section 8(a)(3) and (1) of the Act. 4. By threatening to secure the discharge of adherents of District 50, by soliciting such adherents, in the context of such threats, to repudiate District 50, by informing an applicant for employment by the Company that union membership was a prerequisite to such employment, by coercively interrogating an employee about his adherence to District 50, and by threatening to withhold its services from employees in reprisal for their filing of charges under the Act, the Union has violated Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER Upon the entire record in the case , and the foregoing findings of fact and conclusions of law, it is recommended that: A. The Respondent Company, W. J. Graham, John Graham , II, and Martin Gracey, a partnership d/b/a Graham Engineering , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against employees or applicants for employment because of their nonmembership in Local 347, International Union of Operating Engineers, AFL-CIO, or because of their concerted activities in opposition to such labor organization. (b) Maintaining in effect a policy of requiring membership in said Local 347 as a condition of employment, or otherwise contributing support and assistance to said Local. (c) Promising employees promotions or other inducements to abandon their concerted opposition to said Local, and soliciting employees to induce other employees to desist from such opposition. (d) Coercively interrogating employees about their union affiliation and threatening employees with reprisals for engaging in concerted activities or for giving information to the Board. (e) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self- year, with provision for automatic renewal thereafter , and was still in effect at the time of the hearing Prendergast testified that on June 1, 1963, when he first came to work for the Company, it had in its employ at the Space Center only a "labor foreman" and a "water plant operator." 99 Any finding that the initial grant of recognition violated Section 8(a)(2) of the Act would of course be barred by Section 10(b) of the Act However, as already noted, under the Lundy case , supra, the Board would not be barred from taking the legality of such grant of recognition into account in fashioning a remedy i Consolidated Edison Co of New York, Inc v. N L R B , 305 U.S. 197 There the court rejected the contention that notice to a local union constituted proper notice to its parent body, and pointed out that, in any event, neither the local nor the parent had any notice that the validity of this contract was under attack The same situation prevailed here 2 See also Sec. 102 8 of the Board's Rules , which includes in the definition of "party" as used in those Rules "any person . named as party to a contract in any proceeding under the Act " 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization , to form, join, or assist International Union of District 50, United Mine Workers of America, 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 or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Offer to James H. Robertson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and offer Ferdinand Koppenol employment as a stationary engineer or substantially equivalent employment. (b) Notify said Robertson and Koppenol if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole the said Robertson and Koppenol, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of wages that they may have suffered by reason of the discrimination against them. (d) In the manner and to the extent specified in the remedy section of this Decision, refund to its present and former employees all moneys that they have been unlawfully forced to pay to the aforesaid Local 347 in the form of initiation fees, dues, and assessments. (e) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Post at its operations in the Houston, Texas, area, copies of the attached notice marked "Appendix B."3 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by the Respondent Company's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Copies of the attached notice marked "Appendix C" shall be similarly posted, after receipt thereof from Respondent Union. Reasonable steps shall be taken by Respondent Company to insure that such notices are not altered. defaced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.4 B. Respondent Union, Local 347, International Union of Operating Engineers, Houston, Texas, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Theatening to secure the discharge of adherents of International Union of District 50, United Mine Workers of America, or coercively soliciting such adherents to repudiate said District 50. (b) Informing applicants for employment by Respondent Company that membership in Respondent Union is a prerequisite of such employment. (c) Coercively interrogating employees about their adherence to said District 50. (d) Threatening to withhold its services from employees in reprisal for their filing of charges under the Act. (e) In any like or related manner , interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist International Union of District 50, United Mine Workers of America, 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 or all such activities. 2. Take the following affirmative action , which is deemed necessary to effectuate the policies of the Act. (a) Post at its place of business in Houston , Texas, copies of the attached notice marked "Appendix C."5 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by the Respondent Union. shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to members are customarily posted. Respondent Union shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material Respondent Union shall provide copies of such notice to Respondent Company for posting by it in accordance with the provisions of this Recommended Order. ib) Notify the aforesaid Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.6 3 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 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 " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." See fn 3 in the Recommended Order. s See fn 4 in the Recommended Order APPENDIX B 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 discriminate against employees or applicants for employment because of their nonmembership in Local 347, International Union of Operating Engineers, AFL-CIO, or because of their concerted activities in opposition to such labor organization. WE WILL NOT coercively interrogate employees concerning union membership or activities. WE WILL NOT threaten employees with economic reprisals for engaging in concerted activities or for giving information to the Board. WE WILL NOT offer employees promotions or other inducements to abandon their concerted activities in GRAHAM ENGINEERING opposition to any labor organization or solicit employees to induce other employees to desist from such activities. WE WILL NOT maintain in effect a policy requiring membership in said Local 347 as a condition of employment or otherwise contribute support or assistance to said Local. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist International _Union of District 50, United Mine Workers of America, 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 or all such activities WE WILL offer James H. Robertson immediate and full reinstatement to his former or substantially equivalent positions, and we will offer Ferdinand Koppenol employment as a stationary engineer, or substantially equivalent employment, and we will make them whole for any loss of wages suffered as a result of the discrimination against them. WE WILL refund to all our present and former employees all moneys that they have been unlawfully forced to pay since May 10. 1965, to said Local 347 in the form of initiation fees. dues, or assessments. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organisation. W. J. GRAHAM, JOHN GRAHAM II, AND MARTIN GRACEY, D/B/A GRAHAM ENGINEERING (Employer) Dated By Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive day' 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 provisions, they may communicate 699 directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston. Texas 77002, Telephone CA-8-0611. Extension 4721. APPENDIX C NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF GRAHAM ENGINEERING 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 you that: WE WILL NOT threaten to secure the discharge of adherents of International Union of District 50, United Mine Workers of America, or coercively solicit such adherents to repudiate said District 50. WE WILL NOT inform applicants for employment by Graham Engineering that membership in our Union is a prerequisite of such employment. WE WILL NOT coercively interrogate employees about their adherence to said District 50. WE WILL NOT threaten to withhold our services from employees because they have filed charges under the Act. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist International Union of District 50, United Mine Workers, 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 or all such activities. (Representative) (Title) Dated By LOCAL 347 , INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL-CIO (Labor Organization) (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 or members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone CA-8-0611, Extension 4721.