Clement Brothers Co., Inc.

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clement Brothers Company, Inc., and International Union of Operating Engi- neers, Local 926 and International Union of District 50, United Mine Workers of America, Party to the Contract. International Union of District 50, United Mine Workers of America (Clement Brothers Company, Inc.) and International Union of Operating Engineers , Local 926. Cases 10-CA-6248, 10-CA-6342, and 10-CB- 1552. June 21,1967 DECISION AND ORDER On September 29, 1966, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the Respondent Company, Clement Brothers Company, Inc., and the Respondent Union, International Union of District 50, United Mine Workers of America, 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 also found that the Respondent Company had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent Company, the Respondent Union, the Charging Party, International Union of Operating Engineers, Local 926, and the General Counsel, filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 except as modified below. As set forth in the Trial Examiner's Decision, the Respondent Company, in March 1965,1 began construction of a dam at Carters, Georgia. On March 18, the Respondent Company and the Respondent Union, District 50, entered into a prehire contract covering employees to be hired on the project. Thereafter, District 50 solicited employees to sign authorization cards, which constituted both membership applications and checkoff authorizations. After coercing some employees to join District 50, as detailed below, the parties executed a collective-bargaining agreement on May 24, effective for 3 years, under the terms of which District 50 was granted recognition as exclusive bargaining representative of the employees. In June, the Charging Party began to 1 All dates refer to 1965, unless otherwise indicated solicit employees on the project to sign membership cards, while District 50 continued its membership campaign. The unfair labor practices, as found herein, occurred both before and after the Respondent Company and the Respondent Union executed the contract of May 24. 1. The Trial Examiner found, and we agree, that the Respondent Company committed independent violations of Section 8(a)(1) of the Act by the conduct of its officials in unlawfully interrogating employees on the project about their activity on behalf of the Operating Engineers, and in threatening employees with discharge or other economic reprisals for supporting the Operating Engineers. 2. We also agree with the Trial Examiner that the Respondent Company rendered unlawful assistance and support to District 50 in violation of Section 8(a)(2) of the Act, and that District 50 violated Section 8(b)(1)(A) of the Act, in the numerous instances summarized in the Trial Examiner's Decision. As described more fully in the Trial Examiner's Decision, the Respondent Company threatened employees with economic reprisals in the form of discharge, layoffs, and reduction in work hours, if they did not join District 50, or if they supported the membership campaign of the Operating Engineers; also, District 50 threatened employees with loss of employment if they did not sign District 50 cards. 3. We agree with the Trial Examiner, for the reasons stated in his Decision, that the Respondent Company, during the period August 1 to 13, discharged employees Ira Alred, Sherman Silvers, and Arnold Sanford because of their activities on behalf of the Operating Engineers, in violation of Section 8(a)(3) of the Act. 4. The Trial Examiner found that the Respondent Company did not violate the Act by recognizing and entering into a collective-bargaining agreement with District 50 on May 24, 1965, and thereafter maintaining such agreement. The Trial Examiner found that District 50 had in its possession 129 signed authorization cards (in a unit of approximately the same number of employees); he reasoned that since the record showed that before the agreement was signed, only 7 of these authorization cards had been obtained through coercion, 1 by Respondent Company, and 6 by District 50, the coercion was not "so pervasive" as to require the conclusion that District 50's majority status was "wholly tainted." We disagree. We have already found that in the weeks preceding the execution of the contract, both Respondent Company and District 50 coerced employees into joining District 50. These incidents are described in detail in the Trial Examiner's Decision. Specifically, on April28, Respondent Company's night superintendent, Frank Hughes, 165 NLRB No. 87 CLEMENT BROTHERS CO., INC. 699 told newly hired employee, James Rochester, that the Company had a union at the plant, and that the best thing Rochester could do was to join it and ask no questions; Rochester accordingly signed a District 50 card. The record also shows six incidents of coercion by District 50's job steward, Farthing, taking place prior to the execution of the contract; all of these resulted in employees' signing cards for District 50. Thus, in early April, when employee Paul Goodson asked Farthing what kind of union he was being solicited to join, he replied, "Well, its a little of company union we brought in here with us. We take it around with us. We want you to sign it. We gotta get 51% to sign it to keep another union out." A few days later, upon receiving Goodson's admission that he was ready to sign "if that's what I've got to do to get on a machine [motor grader] or stay on a machine," Farthing admitted, "that'll help." On April 14, Farthing told employee Arlind Crisp that "we got a little union here" and "I'd love for you to join up with us. If we get 51% why we can keep another organization out," and when Crisp asked if he had to join, Farthing replied, "Yes, you will if you work here." In mid-April Farthing warned employees Newman Hudson and T. L. Bingham to "sign or else"; on April 16 he cautioned employee Arnold Sanford, in response to Sanford's question as to whether he had to sign, "If you want to keep your job, you do";2 and sometime during April he advised employee E. C. Watson, in response to Watson's question as to whether he had to join District 50, that he had to if he wanted to stay there and "do good." The Trial Examiner treated the question of District 50's precontract majority as one which was susceptible to resolution by a simple mathematical formula; we conclude that the character of the coercion should be more realistically measured in terms of its pervasive effect. We have found that in the period beginning approximately 8 weeks prior to the signing of the contract, as the evidence affirmatively shows, at least seven employees were coerced into joining the Union. The likelihood that the coercion taking place before the contract was executed was substantially more widespread than appears from the foregoing is suggested by Respondents' coercive tactics continuing after the contract was signed. Thus, the Respondent Company, on approximately 18 separate occasions between June and September 1965, unlawfully threatened employees with loss of jobs and other reprisals if they participated in any way in the Operating Engineers' organizing campaign, which commenced in June 1965. Respondent Company made it clear that it was engaging in no idle threats; in August 1965, as noted above, it unlawfully discharged three employees because of their activities on behalf of the Operating Engineers. It is also apparent that Job Steward Farthing engaged in a broad and continuing campaign to coerce employees into signing District 50 cards: On June 25, after the execution of the contract, he violated the Act by telling employee Joe Butler that he had to join District 50 if he was "planning to work here for any length of time"; and on August 1, he unlawfully told employee Gary Butler that he had to join District 50 because "within a few weeks only the ones who are working under this union will be on this project." In view of the foregoing, and the record as a whole, we cannot find, as did the Trial Examiner, that the coercion practiced by the Respondents did not taint District 50's entire majority.3 We accordingly find that the Respondent Company violated Section 8(a)(2) and (1) of the Act by recognizing District 50 as the collective-bargaining representative of its employees and by executing and maintaining a collective-bargaining contract with District 50, at a time when District 50 did not represent a free and uncoerced majority of such employees; and that District 50 violated Section 8(b)(1)(A) by entering into and maintaining the aforementioned collective-bargaining contract at a time when it did not represent a free and uncoerced majority of the Respondent Company's employees.4 THE REMEDY In this case, as noted above, we have found that the Respondent Company and District 50 engaged in unfair labor practices by coercing employees into joining District 50, by entering into the contract of May 24, 1965, and by continuing the unfair labor practice campaign thereafter. We shall, therefore, in order to effectuate the basic policies of the Act, order that the following remedial action be taken. We shall order the Respondent Company to withhold all recognition from District 50 as representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment, unless and until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election. We shall also order the Respondent Company to cease and desist from giving any force or effect to the collective-bargaining agreement of May 24, 1965, or to any extension, 2 Respondents disclaim having any operative union -secunty agreement material in this proceeding We accordingly find no contract justification for Respondents ' statements to employees, made both before and after the May 24 contract was signed We also agree with the Trial Examiner , and essentially for the reasons stated by him, that no unfair labor practice findings should be made with respect to the union-security issue S See Puerto Rico Food Products Corporation, 111 NLRB 293 Bernhard-Altmann Texas Corporation, 122 NLRB 1289, enfd 280 F 2d 616 (C A D.C ), affil sub nom International Ladies' Garment Workers' Union, AFL-CIO v. N L R B, 366 U S 731 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewal, or modification thereof.5 However, nothing herein shall be construed as requiring the Respondent Company to vary any wage, hour, seniority, or other substantive feature of its relations with its employees which the Company has established in the performance of this contract.6 We shall order the Respondent Union to cease and desist from acting as the collective-bargaining representative of any of the Company's employees unless and until said Union shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election. We shall also order the Respondent Union to cease giving effect to the collective-bargaining agreement of May 24, 1965, or to any extension, renewal, or modification thereof. 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 and hereby orders that the Respondent, Clement Brothers Company, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, and the Respondent, International Union of District 50, United Mine Workers of America, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraphs A, 1, (f) and (g), the present paragraph A, 1, (f) being relettered (h): "(f) Recognizing or contracting with International Union of District 50, United Mine Workers of America, or any successor thereto, as the representative of any of its employees for purposes of collective bargaining, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees." "(g) Giving effect to, performing, or in any way enforcing its contract entered into on May 24, 1965, or any modifications, extensions, or renewals thereof, or any other contract, agreement, arrangement, or understanding entered into with International Union of District 50, United Mine Workers of America, or any successor, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have been certified by the Board as the exclusive representative of the Company's employees; provided, however, that nothing in this Decision and Order shall require the Respondent Company to vary or abandon any wage, hour, 5 Although we are ordering Respondent Company to cease giving effect to its contract with District 50 , we agree with the Trial Examiner, and essentially for his reasons , that Respondents be ordered to reimburse dues and other fees "only to those seniority, or other substantive feature of its relations with its employees which the Company has established in the performance of this contract, or to prejudice the assertion by employees of any rights they may have thereunder." 2. Add the following as paragraph B, 2, (d), the present paragraphs B, 2, (d), (e), and (f) being relettered (e), (f), and (g): "(d) Withdraw and withhold all recognition from International Union of District 50, United Mine Workers of America, or any successor labor organization , as the representative of its employees for purposes of collective bargaining, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees." 3. Add the following as paragraphs B, 1, (b) and (c), the present paragraph B, 1, (b) being relettered as (d): "(b) Acting as the exclusive bargaining representative of any of the employees of Respondent Clement Brothers Company, Inc., for the purpose of dealing with said Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have demonstrated its exclusive majority status pursuant to a Board-conducted election." "(c) Giving effect to the collective-bargaining agreement dated May 24, 1965, between the Respondent Union and Clement Brothers Company, Inc., or to any extension, renewal, or modification thereof." 4. Insert the following as the third and fourth indented paragraphs of Appendix B: WE WILL NOT enforce or give effect to our collective-bargaining agreement, dated May 24, 1965, with International Union of District 50, United Mine Workers of America. WE WILL withdraw and withhold all recognition from International Union of District 50, United Mine Workers of America, as the collective-bargaining representative of any of our employees for the purpose of dealing with Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the National Labor Relations Board shall certify said labor organization as such representative. 5. Add the following as the fifth and sixth indented paragraphs of Appendix C: WE WILL NOT act as the exclusive bargaining representative of any of the employees of Clement Brothers Company, Inc., Atlanta, employees whose payments are shown to have been made under coercion "Meyers Bros ofMtssourt, Inc, 151 NLRB 889,890 6 Durahte Co , Inc., 132 NLRB 425 CLEMENT BROTHERS CO., INC. Georgia, unless and until we shall have demonstrated our exclusive majority represent- ative status pursuant to a Board-conducted election among the employees of said Company. WE WILL NOT give effect to the collective- bargaining agreement dated May 24, 1965, between Clement Brothers Company, Inc., and ourselves, or to any extension, renewal, or modification thereof. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on September 2 and October 25, 1965, by International Union of Operating Engineers, Local 926, herein called the Operating Engineers, the General Counsel for the National Labor Relations Board, by the Acting Regional Director for Region 10 (Atlanta, Georgia), issued complaints, dated February 8, 1966, against Clement Brothers Company, Inc., herein called the Company or Respondent Company, and against International Union of District 50, United Mine Workers of America, herein called District 50 or Respondent District 50. With respect to the unfair labor practices, the complaints, as amended, allege that Respondent Company engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act, and that District 50 engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. In its duly filed answers, as amended, each Respondent, respectively, denies the unfair labor practice allegations. Pursuant to due notice, a hearing was held before me at Atlanta, Georgia, on May 24 to 26, 1966. All parties were represented at the hearing and were given full opportunity to participate and to adduce all relevant evidence. On July 11, 1966, all parties filed briefs, which I have fully considered. The Company's motion, filed on July 14,1966, to strike that portion of the complaint which may relate to violations of the proviso to Section 8(a)(3), is hereby denied in view of my failure to find any violations in this respect. For the reasons hereinafter stated, I find that Respondent Company has violated Section 8(a)(1), (2), and (3) of the Act in certain respects, and that Respondent District 50 has violated Section 8(b)(1)(A). Upon the entire record in the case,' and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent Clement Brothers Company, Inc., a North Carolina corporation with its principal office and place of business at Hickory, North Carolina, is engaged in the building and construction industry as a general contractor. During the 12 months preceding the issuance of the instant complaints, a representative period, the Company performed services in the construction of interstate roads and dams of a value in excess of $50,000. The dam construction project involved in this case, herein called ' Inadvertent errors in the typewritten transcript of testimony have been noted and corrected in Appendix A [Appendix A omitted from publication ] 701 Carters Dam project, was undertaken pursuant to a contract with the U.S. Army Corps of Engineers for the construction of an earth and stone dam at Carters, Georgia, of a value in excess of $15 million. Upon the above undisputed facts, I find that Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaints allege, and all parties stipulated at the hearing, that International Union of Operating Engineers, Local 926, and International Union of District 50, United Mine Workers of America, are each labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; The Issues In March 1965, Respondent Company began construction of an earth and stone dam at Carters, Georgia, pursuant to a contract with the U.S. Army Corps of Engineers. On March 18, 1965, Respondent Company and Respondent District 50 entered into a prehire contract for the employees to be hired at the Carters Dam project.' Thereafter, District 50 solicited employees to sign cards which constituted both membership applications and checkoff authorizations. On May 24, 1965, the Company and District 50 executed a collective-bargaining agreement based on such cards signed by a majority of the employees. Thereafter, employees were solicited and began signing membership application cards for the Operating Engineers. District 50 also continued to solicit and to obtain signatures to its membership application and checkoff cards. During the period from August 1 to 13, 1965, employees Ira Alred, Sherman C. Silvers, and Arnold Sanford ceased working for the Company. On August 24, 1965, the Operating Engineers filed a petition for an election, which petition was withdrawn without prejudice before the end of the month. The Operating Engineers then filed the charges in the instant case. The issues litigated in this proceeding are whether (1) Respondent Company, through its admitted supervisors, rendered unlawful assistance and support to District 50; (2) the contract of May 24, 1965, was invalid because (a) District 50 allegedly did not represent a free and uncoerced majority and (b) District 50 allegedly was unlawfully assisted in obtaining authorization and membership cards; (3) Respondent Company discrimi- nated with respect to the hire and tenure of employment of employees Alred, Silvers, and Sanford; (4) admitted supervisors of Respondent Company engaged in unlawful interrogation threats of discharge, and of other reprisals; and (5) Respondent District 50, through Job Steward Farthing, engaged in conduct which restrained and coerced employees if they did not sign District 50 membership application cards. B. The Credibility of John Perry John Perry was employed as a back dump truck driver by Respondent Company at the Carters Dam project on April 27, 1965. About 2 weeks later he became job steward 2 Under Section 8(f) of the Act, such an agreement is valid but cannot be a bar to a petition filed under Section 9(c) or 9(e) of the Act 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Respondent District 50 on the night shift. He voluntarily left the Company's employ in February 1966. Perry was the most important witness for the General Counsel with respect to every allegation against Respondent Company. As the Operating Engineers concedes in its brief, "The testimony of John Perry ... would, if credible, tie in all elements of the charges." Perry testified that beginning with the day after he became job steward, Project Superintendent Holland and Supervisors Moore, Duke, and Hughes, individually, had numerous conversations in which they told him about the Company's policies with respect to District 50 and the Operating Engineers. The substance of these conversations allegedly was that the Company was in favor of District 50 and opposed to the Operating Engi- neers, that Perry should get all the men signed up for District 50, that he should try to find out and report back the names of those employees who were "pushing" the Operating Engineers and who did not sign for District 50, and that those who were "pushing" the Operating Engineers would be gone "out the gate." He testified that he relayed this information to most of the employees whom he solicited to sign District 50 cards. He also testified to conversations with Supervisor Hughes to the effect that Alred, Silvers, and Sanford were dis- charged because of their activities on behalf of the Operating Engineers. Hughes denied having had the conversations or made the statements attributed to him by Perry. The other named supervisors were not called as witnesses. The fact that the other supervisors did not testify and that I hereinafter discredit Hughes in other respects does not automatically or necessarily require the acceptance of Perry's testimony as trustworthy and credible. Each Respondent vigorously and in considerable detail argues in its brief that Perry is a biased and prejudiced witness whose testimony must be rejected as unworthy of belief. Perry did not impress me favorably by the manner in which he testified and his demeanor on the witness stand, particularly on cross-examination. He testified in a glib, pat manner which at times appeared to lack conviction and sincerity. On cross-examination, he displayed a very vague and poor memory, repeatedly hedged and refused to commit himself to specifics, at times fenced with counsel, and at other times was cute, flippant, and argumentative. The following are some of the additional factors which I have also considered in assessing his credibility. 1. An Operating Engineers representative and attorney visited Perry's home in the early summer of 1965 in an effort to get him to help them. At that time, he refused. During the period from November 1965 to January 1966 Perry made two trips to the offices of the Operating Engineers in Atlanta, Georgia, at which time he was asked to help the Operating Engineers get in at the Carters Dam project. On the first trip, Perry gave no definite answer. On the second trip, he agreed to give a statement to the Board. Perry's pretrial affidavit was given to a Board agent on January 10, 1966. During all this period, Perry still continued to act as District 50 job steward on the night shift. Without any prior notice, Perry voluntarily quit his employment with the Company sometime in February. About 2 weeks later, he joined the Operating Engineers and was employed as an oiler by a construction company represented by the Operating Engineers, a position which he still held at the time of his testimony in this case. 2. On direct examination , Perry testified that Company Supervisors Holland and Moore had only told him to try to find out and to report back the names of employees who were talking about or were "pushing" the Operating Engineers and that they would be gone "out the gate." He did not testify as to what any other supervisors told him. However, on cross-examination, he for the first time added that Supervisors Holland, Moore, Hughes, and Duke told him to get the men signed up for District 50, and to let them know if anyone did not sign for District 50 or was "pushing" the Operating Engineers. It was also on cross- examination that he for the first time testified that the substance of his conversations with Hughes was that the Company did not want the Operating Engineers in there and that employees who were trying to get the Operating Engineers in were in danger of losing their jobs if they continued to do so. 3. On the one hand, Perry testified to the above- described conversations with the above-named supervisors, including Project Superintendent Holland and Night Superintendent Hughes; on the other hand, he admitted that on two occasions shortly after he became District 50 steward, while he was soliciting for District 50, Hughes told him to "quit messing with the Union" and warned that "Mr. Holland is going to get rid of you if you continue it." 4. On direct examination, Perry testified that he tried to tell all the men whom he signed up for District 50 about the Company's feelings and attitude with respect to District 50 and the Operating Engineers as reported to him by the above-named supervisors. On cross-examination, he testified that he tried to tell most of the employees about it. In his pretrail affidavit, he stated that he told this to approximately 30 percent of the employees whom he signed up. On cross-examination, he testified that it could have been 30, 70, or 5 percent. Yet, when repeatedly pressed on cross-examination, he was unable to be definite about a single one of the approximately 25 employees signed up by him to whom he allegedly relayed this information. After further pressing by counsel, he finally named Charles, Ronald, and Donald Walker. He testified that "I could have told these men that I named. I'm not going to say for sure that I did but I am pretty sure that I did." Then when Perry was asked by counsel if he was prepared to testify under oath that he told "any of the Walker boys what the Company' s position was in regard to Operating Engineers and District 50," he testified, "I can't say definitely." All three Walker boys credibly testified that they signed District 50 cards at the solicitation of Job Steward Charles Farthing and that Perry had not talked to them at all in this regard. 5. The failure of a single witness who testified about Perry soliciting him to sign a District 50 card, as well as the failure to produce a single witness to corroborate Perry's testimony concerning what he allegedly told employees whom he solicited 6. Perry testified that Night Superintendent Frank Hughes told him that Arnold Sanford was "being fired for supposedly trying to get men to sign up with Operating Engineers," that Sanford "had been warned about it and that he continued to do this and they were going to get rid of him," and that they "were making arrangements to get his checks tied up to sort of foul the boy up a little further." However, in his detailed pretrial affidavit given to a Board agent on January 10, 1966, there is no mention of any statements by Hughes concerning Sanford. I cannot accept Perry's explanation that he had forgotten about it and that his memory was better at the time of the hearing about 5 months later, especially since this affidavit does CLEMENT BROTHERS CO., INC. contain detailed alleged statements by Hughes concerning the terminations of Alred and Silvers and the layoff of Moncrief. Perry admitted that before he made his affidavit, he had learned that the Operating Engineers had filed charges with the Board. His testimony that he did not know that Sanford's case was before the Board is not an acceptable answer. For the fact that Moncrief's case was not before the Board did not stop him from including Hughes' alleged statements concerning the layoff of Moncrief. It is significant in this connection that Hughes was in charge of the night shift and that Sanford worked on the day shift under the immediate supervision of Stacey Williamson. Upon consideration of all the foregoing, I am impelled to the conclusion, which I herein make, that Perry is not a reliable witness and that his testimony cannot be accorded full credence. I therefore will not rely on any of Perry's testimony in arriving at my findings hereinafter set forth. C. Violations of Section, 8(a)(2) and 8(b)(1)(A) The General Counsel contends that Respondent Company violated Section 8(a)(2) of the Act because it allegedly rendered unlawful assistance and support to District 50 by the conduct of admitted Supervisors "Slim" Holland, Crawford Moore, Frank Hughes, and Hope Lyles, Jr., and by executing a collective-bargaining agreement with District 50 on May 24, 1965, at a time when District 50 had allegedly been assisted by the Company in obtaining membership cards and allegedly did not represent a free and uncoerced majority of the employees in an appropriate unit. The General Counsel also contends that Respondent District 50 violated Section 8(b)(1)(A) of the Act by the conduct of its job steward on the day shift, Charles Farthing, in allegedly threatening employees with economic reprisals if they did not sign District 50 membership cards. For obvious reasons, Respondents' conduct before and after the execution of the contract will be treated separately.3 1. Conduct prior to the May 24 contract a. By Respondent Company Evidence adduced with respect to the Company's conduct which the General Counsel contends occurred before May 24, 1965, involved Labor Foreman Hope Lyles, Jr., and Night Superintendent Frank Hughes. (1) Foreman Lyles Emmett Lewis was employed as a laborer sometime in the latter part of May. He was unable to recall the exact date. On the second day of his employment, his foreman, Hope Lyles, Jr., came to him and told him he would have to sign up with the Miners Union if he worked. When Lewis stated that he would do so, Lyles sent him to Job Steward Farthing who gave him a District 50 card which Lewis signed under circumstances described infra. The foregoing findings are based on the credited and undisputed testimony of Emmett Lewis. In assessing Lewis' credibility, I have considered the fact that Lyles was no longer employed by the Company and that his whereabouts were unknown at the time of the instant a Unless otherwise indicated, all dates are in 1965 " Thus, Hughes testified on direct examination that Alred was laid off for lack of work, and then admitted on cross- examination 703 hearing. Lewis impressed me as a sincere and honest witness who was testifying to the true facts as he best remembered them. I credit his testimony and find that Foreman Lyles' statement constituted a threat that Lewis' continued employment was conditioned upon his signing a District 50 membership card. Respondents contend that the record fails to establish that the foregoing events occurred prior to May 24, 1965. Lewis did not have an independent recollection of the specific date when the foregoing incident occurred. On cross-examination, he admitted that it was probably during the last week in May when he started working for the Company. Upon examining his signed District 50 card, which is in evidence as General Counsel's Exhibit 5, he testified that he could not determine whether the date thereon was May 20 or 25. He identified his signature on the card but testified that he did not think the date was his writing. Neither Farthing nor any other witness testified as to the date on which Lewis was solicited or signed the card. Although the card appears to me to be dated May 20, rather than May 25, I cannot exclude the possibility that it was predated, as there is no evidence in the record as to the date on which Lewis signed the card. Upon this state of the record, I find, in agreement with Respondents, that the General Counsel has failed to prove by a preponderance of the evidence that the above-found threat of Foreman Lyles was made on or before May 24, 1965. (2) Night Superintendent Hughes James Rochester was employed as a motor grade operator on the night shift on April 28, 1965. Either that day or the following day, Hughes spoke to him outside the main gate at the dam. Hughes stated that the Company had some kind of union there and that the best thing Rochester could do was to join it and ask no questions. The next day Rochester signed a District 50 card when solicited by Job Steward Farthing. The above findings are based on the credited testimony of Rochester who impressed me as a candid and straightforward witness entitled to full credence. Hughes testified that Rochester asked him if they had a union, that he replied there was, that Rochester asked which it was, that Hughes stated it was United Mine Workers, that Rochester stated he had a card for the Operating Engineers, that Hughes replied that he had nothing to do with either union, and that he suggested that Rochester see the union steward. I was not favorably impressed by the manner in which Hughes testified. Moreover, Hughes demonstrated his unreliability as a truthful witness in connection with Alred's termination.4 I do not credit Hughes' version of the conversation to the extent that it may conflict with that of Rochester. Bill D. Simerly testified that the following incident occurred on April 29, 1965. He and five or six other employees rode to their worksite in a pickup truck driven by Hughes. This was the normal daily procedure for reaching the worksite. When they arrived at the worksite, Hughes stopped the truck to let the men out, saw Job Steward Farthing in the area, and stated that he had some men who wanted to sign up for the Union. Simerly signed a District 50 card at that time. Hughes admitted that he customarily drove employees that in his pretrial affidavit he had stated under oath that Alred was terminated for unsatisfactory work 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the worksite because that was the only way to get there. Hughes and Farthing denied that Hughes had ever made the above-described statement to Farthing. Simerly admitted that he had not previously said anything to Hughes about wanting to sign a District 50 card, nor had he heard any of the other men in the truck say anything to that effect to Hughes. At first, Simerly testified that Hughes merely told Farthing that he "had some men there who wanted to see him." When asked to state again what Hughes said, Simerly testified, "He said he had some men there who wanted to sign up , wanted to see him." When asked to repeat his answer, Simerly testified, "He said he had some men who wanted to see him about signing up with District 50." He then corrected his answer and testified, "He didn't say District 50-he said sign up with the Union." Also, while he testified on direct examination that "we signed up a union card," he admitted on cross- examination that he did not see any of the other men sign. Moreover, whereas he stated in his pretrial affidavit in October 1965 that he could not remember who was on the truck with him at the time, he was able while testifying on cross-examination some 7 months later to name three persons he was pretty sure were with him and two others, Rochester and Moncrief, who might have been with him. The General Counsel failed to adduce any evidence to corroborate Simerly even though Rochester and Moncrief testified as witnesses for the General Counsel. Upon consideration of all the foregoing and the demeanor of Simerly while testifying, I find Simerly not to be a reliable witness and will not rely on any of his testimony in my findings herein. b. By Respondent District 50 About 3 or 4 days before he started working for the Company, Emmett Lewis was at the entrance gate looking for a job and spoke to Farthing because he had heard that District 50 had a contract with the Company and that Farthing was the steward. Farthing told Lewis that he would have to join District 50 before he went to work there. Lewis replied that he would do so "if I could just go to work." On the second day of his employment, Foreman Lyles threatened that his continued employment was conditioned upon his signing a District 50 membership card, as previously found. When Lewis agreed to do so, Lyles sent him to farthing , also as previously found. Lewis asked Farthing if he had to join to work there. When Farthing replied in the affirmative, Lewis signed a District 50 card. However, as previously found, the General Counsel has failed to prove that the foregoing incident occurred on or before May 24, 1965. On April 13, 1965, the first day of his employment, bulldozer operator Newman Hudson was approached by Job Steward Farthing and asked to sign a union card for District 50. Hudson replied, "Let's just wait a few days and we'll kind of get straightened out." Two days later, Farthing approached Hudson again, gave him another District 50 card to read, and told Hudson "to either sign it or else." Hudson thereupon signed the District 50 card. On April 14, Farthing talked to dozer operator T. L. Bingham, who had only been working there a few 5 Based on Crisp's testimony Contrary to the contention of counsel for District 50, it is obvious to me from an analysis of Crisp's testimony on direct and cross examination that his statement-"it's a right to work state"-was intended as a comment which he was then making on the witness stand and not as his testimony of what he said to Farthing on that occasion. I so days, and told him that they had a labor union started there and wanted everybody to sign up. Bingham replied that he was not too interested right then, and would study it over for a few days and let Farthing know. Farthing then "twisted around there a minute" and said, "Well, you sign or else." Bingham thereupon signed the District 50 card. On April 16, Farthing approached water truck driver Arnold Sanford, who had been employed there only a few days, and stated that he would like to get Sanford to "sign up for the Union," District 50. Sanford stated that he did not know whether or not he wanted to sign. Sanford asked if he had to. Farthing replied, "If you want to keep your job, you do." Sanford thereupon signed a District 50 card. On April 14, Farthing stopped dozer operator Arlind Crisp while he was working, and said, "Arnnd, we got a little union here" and "I'd love for you to join up with us. If we get 51% why we can keep another organization out." Crisp replied that he had been a union man for 18 years and "would rather not fool with it." Crisp asked Farthing if he had to join the Union.5 Farthing replied, "Yes, you will if you work here." Crisp thereupon signed a District 50 card. A few days after E. C. Watson started working in April, Farthing came to his work place and asked if he wanted to sign a District 50 union card. Watson stated that he was busy and that as soon as he found time he would discuss it with him. About 3 or 4 days later, on April 28, Farthing came back and again asked Watson to sign a District 50 card. When Watson asked Farthing if he had to sign, Farthing replied that he had to if he wanted to stay there and do goods Watson thereupon signed a District 50 card. About April 1, 1965, motor grade operator Paul Goodson applied to Project Superintendent Holland for a job as a motor grade operator. As no motor grader was available at the time, Goodson worked for a few days as a guard, then on the water truck, and finally on the motor grader. While Goodson was employed as a guard, Farthing came up on a scrapper and stopped behind the office building with two other employees. Superintendent Holland drove up and asked Goodson to see why the "pan" was stopped. When Goodson went over to the three men, Farthing said, "We want to get you in on this union." Goodson asked, "What kind of union." Farthing replied, "Well, it's a little old company union we brought in here with us. We take it around with us. We want you to sign it. We gotta get 51% to sign it to keep another union out." Goodson stated that he was not interested in signing for District 50. A few days later, Farthing again asked Goodson to sign a District 50 card. On that occasion, Goodson stated that he had not made up his mind and wanted to think it over. On April 14, Farthing asked Goodson if he had made up his mind yet "about joining the Union?" Goodson stated that he was ready to sign "if that's what I've got to do to get on a machine [motor grader] or stay on a machine." When Farthing replied, "that'll help," Goodson signed a District 50 card. The findings in the preceding paragraphs are based on the credited testimony of Lewis, Hudson, Bingham, Sanford, Crisp, Watson, and Goodson. Their demeanor on the witness stand while testifying under oath leads me to find s Based on Watson's testimony Contrary to the contention of counsel for District 50, there is no significant %ariation in any material respect between Watson's testimony in this regard and his prior written statements to the Operating Engineers and to the Board's agent CLEMENT BROTHERS CO., INC. conclude that they are trustworthy witnesses entitled to full credence. All of them testified under subpena and all but Lewis and Sanford were still in the Company's employ at the time of their testimony. Farthing admitted soliciting and signing up the above-named employees for District 50 but denied making any of the statements attributed to him with respect to job security or tenure or improvement or to "sign or else." Farthing did not impress me as a sincere and candid witness. He displayed an extremely poor memory and was unable to be specific about what was said when he signed up the above-named employees. I do not credit Farthing's denials. I find that Farthing's statements to Hudson and Bingham that they "either sign or else" constitute, under all the circumstances, a veiled threat to their job tenure or security, or of some other form of economic reprisal, if they did not sign District 50 union cards.' I also find that the statement to Goodson constituted a promise that signing a District 50 card would help him to obtain and retain the job which he desired. I further find that the statements to Lewis, Sanford, Crisp, and Watson constituted outright threats of loss of employment unless they signed a District 50 union card. 2. Conduct after the May 24 contract a. By Respondent Company Evidence adduced with respect to the Company's conduct which occurred after the execution of the May 24 contract involved Project Superintendent Holland, Night Superintendent Hughes, Foreman Lyles, and Project Engineer Moore, all admitted supervisors of Respondent Company. (1) Project Superintendent Holland Dozer operator James D. Alday signed a union card for the Operating Engineers on June 8, 1965. About the middle of July , Holland spoke to him as he was getting a drink of water. Holland warned Alday that "if you don't quit fooling with that little bit of union , you're going to get your butt run off." Holland also added , "I can't fire you" for "preaching about it" but "I can lay you off and not call you back." When Alday stated that "that would be the same thing," Holland replied , "that'll be it." Power shovel operator Sherman Silvers signed a card for the Operating Engineers on June 8, 1965. Sometime in July, Holland approached Silvers as he was starting work and said , "Silvers, that other union that 's trying to get in here ... I want to tell you right now that I can get all the operators that I need by just going to the phone." Holland added that he knew what was going on and that if Silvers "was going to keep fooling around it " Silvers would "be run off or be out of a job ." Silvers replied that he was a member of the Operating Engineers and that Holland would not have any trouble with him because "I had washed my hands with it." Dozer operator Ira Alred signed a union card for the Operating Engineers on June 8, 1965, and passed out cards for that union . Shortly before his layoff on August 1, Holland told Alred that someone had told Holland that Alred was "dabbling" with the Operating Engineers. Holland warned Alred that if he valued his job, Alred had "better cut that out" and let the Operating Engineers 705 alone. He added that if the Operating Engineers got in there, Alred "wouldn't get the 32 or 40 hours a week." On August 12, Holland said to motor grade operator Paul Goodson, "I'm going to tell you now like I've told the rest of these boys ... if you don't quit fooling with that damned little of union and going to those damned little of meetings, I'm going to fire you or lay you off and not call you back." He added that "Clement done it before," and warned that "he'll do it again." Holland also pointed out that he had some 600 men working for him and that "if I had to I'd fire these men on the job and replace them in 24 hours." Holland also emphasized that he "would be a damn fool ... to sit on [his] ass and watch the Operating Engineers come in here." Bulldozer operator John Moncrief was laid off for a few weeks in September 1965. When he reported for work upon his recall, Holland called him aside and said that Moncrief had been "fooling" with the Operating Engineers because "some of his best friends had come to him and told him" so. Holland told Moncrief, "I'm going to put you back to work but ... I have the authority to hire or fire who I please and I will." On one occasion in June or July while mechanic E. C. Watson was eating dinner, Holland came over and sat down to eat with him. During the ensuing conversation, Holland told Watson that "I don't know what to think of that Paul Goodson who runs the motor grader messing with this little old union around here ... that shovel operator, Silvers, . . . I've done warned him two or three times and ..,. if they don't quit, I'm just going to have to get rid of them, that's all." The above findings are based on the credited and undenied testimony of Alday, Silvers, Alred, Goodson, Moncrief, and Watson, all of whom impressed me as credible witnesses. Project Superintendent Holland was not called as a witness and no explanation was offered for the failure to do so. (2) Night Superintendent Hughes During the last of May John Moncrief was working with James Dawkins, Frank Cullum, and another employee on the top of the mountain where they were about to strip the dirt off the rock with a machine. Hughes called the men off the machine to show them what to do. During this occasion, Dawkins asked Hughes if he had to join District 50. Hughes then told Dawkins and Cullum, in Moncrief's presence, that if they wanted to continue working there, they had better join District 50. On another occasion in July, Hughes called Moncrief off his tractor and asked him if he was "fooling around" with the Operating Engineers. Moncrief replied that he was not. James Rochester stopped his equipment to talk to Moncrief for a few minutes on the day before the latter's layoff in September. Hughes later stopped Rochester while he was running his motor grader and asked if Moncrief had been talking to him about the union again. Rochester replied in the negative, explaining that they were talking about a dispute which Jack Farmer, another motor grader operator, had with District 50 Job Steward Perry. Hughes said that Moncrief had been warned about talking about the Operating Engineers on several occasions, and warned that Project Superintendent Holland had stated he "absolutely" was not going to put up ' See, e g , Local 404, International Brotherhood of Teamsters (Brown Equipment & Mfg Co), 100 NLRB 801, 811 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with it and would run them off and hire a new crew if he had to. On another occasion, Hughes told Rochester that "there was some fellows there that were going to get into trouble if they didn't quit talking about the Operating Engineers and agitating," warning that Ira Alred and Sherman Silvers might be laid off for that reason. Alred and Silvers were laid off a few days later and never recalled under circumstances hereinafter detailed. Ira Alred signed a card for the Operating Engineers on June 8 and then passed out cards for the Operating Engineers. Shortly thereafter, Hughes asked Alred if he had been "fooling" with the Operating Engineers. Hughes added that Alred better "lay off of it" if he had, warning that "they can't fire you for it but they can find some other reasons to fire you." On another occasion during this period, Hughes warned Alred that he and Sherman Silvers "are on the spot," that "you're going to be in trouble if you don't drop this talking about the Operating Engineers," and that two men had told Hughes that Alred and Silvers "were passing out these cards" for the Operating Engineers. William Jones was hired as a bulldozer operator in early July by Hughes. While Hughes was driving Jones around looking over the job, Hughes asked Jones if he had ever belonged to a union. When Jones replied in the negative, Hughes stated that the Operating Engineers were trying to come in there but that the Company did not want them and they were not coming in. Hughes informed Jones that they "had a little of company union there," and told Jones to "go ahead and sign up." Hughes added that it would only cost $4 a month and was less than what the other unions cost. When Euclid driver Jack Crump was hired by Hughes in the last part of July, Hughes told him that the Company had a little union in there, that there were "people on the job messing around with the Operating Engineers," that they "will be run off," and that "it would be best for you to go in there and join District 50 and not mess around with the Operating Engineers." Sometime in July Hughes approached Sherman Silvers, after having become aware that Silvers was engaging in activities on behalf of the Operating Engineers, and told Silvers that "if your union gets in here ... you'll get only 8 hours and day and maybe 5 days a week." At that time, Silvers was working a 10-hour 5-day-a-week shift, and an 8- hour shift on Saturdays. Grade-all operator John A. Wiggins asked Hughes for a job during July. Hughes at that time knew that Wiggins was a member of the Operating Engineers. Hughes stated, "You belong to the International Operating Engineers and you will have to keep quiet about this if I can get you a job." Hughes also added, "You'll have to join District 50 and forget your union while you work here." Wiggins replied that he would join District 50 if Hughes would get him a job. Wiggins was employed about a week later and signed a District 50 card about 3 days after he started working. About August 28, shovel operator Sharp, in Wiggins' presence, asked Hughes for a job. Hughes told Sharp he did not have anything then but that they might start a shovel later and would put Sharp on. When Sharp stated that he had never belonged to the Operating Engineers because he thought he might have trouble getting a job on the second phase of the dam, Hughes told Sharp that he would have to belong to District 50 if he went to work there, that he could not have anything to do with the Operating Engineers Union, and that Superintendent Holland would fire anyone who had anything to do with the Operating Engineers on the job. The foregoing findings are based on the credited testimony of Moncrief, Rochester, Alred, Jones, Crump, Silvers, and Wiggins, all of whom impressed me as being truthful witnesses entitled to full credence. All testified under subpena, and Moncrief, Jones, and Crump were still in the Company's employ at the time of their testimony. Night Superintendent Hughes denied having made the statements or engaged in the conversations hereinabove attributed to him. As previously found, Hughes did not impress me as a reliable and truthful witness. I do not credit his denials. (3) Foreman Hope Lyles, Jr. On June 26, Labor Foreman Lyles motioned for bulldozer operator Newman Hudson to stop his machine and get off. Lyles then told Hudson that he had been appointed to talk to Hudson and to tell him not to talk about the Operating Engineers because it might cause Hudson to lose his job. The foregoing findings are based on the credited and undenied testimony of Hudson who impressed me as a witness entitled to full credence. He testified under subpena and was still employed by the Company at the time of his testimony. Foreman Lyles, no longer employed by the Company, did not testify. (4) Project Engineer Moore In July or August, Crawford Moore asked John Moncrief if he was "fooling around" with the Operating Engineers. When Moncrief replied in the negative, Moore asked him "to tell me if you hear anybody fooling with the Operating Engineers." The above finding is based on the credited and undisputed testimony of Moncrief. Moore was not called to testify and Respondent Company gave no explanation for its failure to do so. b. By Respondent District 50 On June 25, while laborer Joe Butler was working on the dynamite crew, Charles Farthing, job steward for District 50, came up and motioned to Butler to come over. When Butler came over, Farthing handed him a District 50 card and asked if he was interested in signing it. After asking about the benefits, Butler asked if he had to join. Farthing replied, "Yes, if you're planning to work here for any period of time, you will have to join." Joe Butler thereupon signed the District 50 card. Farthing then talked to the entire crew, one at a time. On August 1, Farthing called laborer Gary Butler aside from his work and asked if he would like to join the union they had there. Farthing handed Butler a District 50 card. When Butler asked whether he had to join right now, Farthing replied that within a few weeks only those who were working under this union would be on the project. Gary Butler thereupon signed a District 50 card. The foregoing findings are based on the credited testimony of Joe and Gary Butler who impressed me as witnesses entitled to full credence. Contrary to the contention of counsel for District 50 in his brief, there is no significant variation on any material matter between their testimony and their pretrial affidavits. Farthing admitted signing up Joe and Gary Butler but denied making the statements attributed to him. He could not recall anything CLEMENT BROTHERS CO., INC. that was said on those occasions. As previously found, Farthing did not impress me as a credible witness, and I do not credit his denials. 3. Concluding findings a. As to Respondent Company As previously found in considerable detail , Project Superintendent Holland threatened employees with loss of jobs by discharge , or by the use of a stratagem of a layoff and failure to recall, in reprisal for activities on behalf of the Operating Engineers , and on one occasion also threatened a reduction in the work hours if the Operating Engineers came in; Night Superintendent Hughes warned applicants and employees that their work on the project was conditioned on signing up with District 50, that it would be best for them to join District 50, that they would have to forget about the Operating Engineers while they worked there , that they would "get into trouble" for talking about the Operating Engineers , that a reason would be found to be used as a pretext to discharge them in reprisal for activities on behalf of the Operating Engineers , and that if the Operating Engineers got in, they would work fewer hours per week; Foreman Lyles threatened one employee that he would have to sign up with District 50 in order to continue to work there, and warned another employee that talking about the Operating Engineers might cause him to lose his job; and Project Engineer Moore asked an employee to inform him of anyone who was "fooling around" with the Operating Engineers . I find that by the foregoing conduct, Respondent Company rendered unlawful assistance and support to District 50 in violation of Section 8(a)(2) of the Act.8 b. As to Respondent District 50 District 50 Regional Director Herman Adkins appointed Charles Farthing as job steward for District 50 at the Carters Dam project on April 1, 1965, with instructions to act as job steward on the job and to "sign the people up" for District 50. Pursuant to these instructions, Farthing thereafter solicited employees to sign District 50 membership application cards. He signed the May 24 contract on behalf of District 50 as "Shop Steward." It is not disputed that Farthing performed the normal functions of a union steward. I find that, at all material times herein, Job Steward Farthing was an agent of Respondent District 50 within the meaning of Section 2(13) of the Act, and that said District 50 is responsible for Farthing's statements and conduct made in the course of his solicitations for District 50.' As previously found in detail, Farthing threatened employees with loss of employment unless they signed " Respondent contends that it was the Company's official policy not to interfere with the employees' choice of unions and that this was made known to the employees in a letter sent to the employees and posted on the bulletin board at the jobsite I find this not to be a valid defense The record merely shows that such a letter was posted at the jobsite and that the project manager was instructed to distribute it to employees There is no evidence that it was in fact distributed to the employees or that they all saw it In any event, the letter admittedly was not prepared until the end of December 1965, long after the unfair labor practice charges had been filed and received by the Company Finally, there is nothing in the letter which may be considered as constituting a repudiation or disavowal of the supervisors' conduct found in the 707 District 50 cards, warned that continuance of their employment would be conditioned upon their signing a District 50 card, made veiled threats to their job security or tenure if they did not sign, and on one occasion promised an employee that signing a District 50 card would help him obtain and retain the job he desired. I find that by the foregoing conduct, Respondent District 50 restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act.10 c. As to the contract of May 24, 1965 The General Counsel contends that the contract of May 24, 1965, is invalid and that therefore its execution and enforcement is violative of the Act. Although specifically stating that "we do not contest" that District 50 had signed membership application cards from a majority of the employees in an appropriate unit, the General Counsel contends that such a majority was coerced or tainted by the unlawful threats of discharge or other reprisals to employees if they failed to sign a card and by the unlawful assistance and support rendered by Respondent Company in obtaining employee signatures to these cards. Finally, the General Counsel contends that the contract contains an ambiguous union-security clause the net effect of which is to require membership in District 50 as a condition of employment and that the execution of such a contract with an assisted union is violative of the Act for this reason alone As the General Counsel recognized at the hearing, the burden is upon the General Counsel to prove that District 50 did not represent a free and uncoerced majority at the time of the execution of the contract; it is not incumbent upon Respondent to prove affirmatively that District 50 did have such a majority. There is no evidence in the record as to the exact number of employees in the appropriate unit and the exact number of signed District 50 cards at the time of execution of the contract. Farthing testified that there were between 75 and 90 working on the day shift during May; and Hughes testified that there were between 25 and 30 working on the night shift during May. At the instant hearing, District 50 had in its possession 129 signed authorization cards but the record does not show how many of them were signed before the execution of the contract. I have previously found that prior to the execution of the contract, the card of only one employee, James Rochester, was obtained through assistance or coercion by Respondent Company and the cards of six employees" were obtained through coercion by District 50. There is no evidence in the record as to whether the deduction of these seven cards would destroy the numerical majority which District 50 claimed to have and which the General Counsel does not dispute. text " See, e g , Truck Drivers and Helpers Local Union No 728, Teamsters (Genuine Parts Company), 119 NLRB 399, 415, 416 "' I further find, based on the credited testimony of Sherman Silvers, that Farthing asked Silvers to sign a District 50 card on May 12, that Silvers asked if he had to sign it, that Farthing replied that he did not but that it would be better if he did, and that Silvers thereupon signed However, contrary to the General Counsel's contention at the hearing but no longer urged in his brief, I find that Farthing's reply, under all the circumstances, is too equivocal to warrant a finding that it constituted restraint and coercion violative of the Act ' i Hudson, Bingham, Sanford, Crisp, Watson, and Goodson 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor do I regard the coercion of seven employees among such a large unit, employed on a jobsite covering an area of about 2 miles, as being so pervasive as to compel the conclusion that whatever majority District 50 may have had was wholly tainted so as not to reflect the employees' free choice. As previously noted, the only act of assistance which I found was engaged in by Respondent Company prior to the execution of the contract, was the statement of Night Superintendent Hughes to James Rochester that the Company had some kind of union there and that the best thing Rochester could do was to join it and ask no questions . This single isolated incident is insufficient to taint the representative status of District 50 so as to render unlawful the execution of the contract. I therefore conclude and find that the General Counsel has failed to prove by a preponderance of the credible evidence that District 50 did not represent a free and uncoerced or untainted majority at the time of its execution of the contract so as to render it unlawful.12 With respect to the alleged ambiguous union-security clause, article III consists of two sentences. The first sentence provides that "it shall not be a condition of employment unless and until State and Federal Law permits" that good standing members on the effective date of the agreement "shall remain members in good standing" and that nonmembers on the effective date shall become and remain members "after the seventh day following the effective date." The second sentence states that "it shall also be a condition of employment that all employees covered by this agreement and hired on or after its effective date shall after the seventh day following the beginning of such employment become and remain members in good standing in the Union." Although aware that Georgia is a right-to-work State which does not permit the execution of union-security contracts, it is because of the second sentence that the General Counsel contends that the net effect of the contract is to require membership as a condition of employment. The complaint nowhere refers to the contract as a union-security agreement nor alleges that it contains a union-security clause. It merely alleges that "on or about May 24, 1965, Respondent Employer recognized and executed a collective bargaining agreement with District 50 covering its employees" in a specified appropriate unit and that "by recognizing and executing the collective-bargaining agreement . Respondent Employer has assisted and supported District 50" in violation of Section 8(a)(2) and (1) of the Act. After all parties had rested their case, the General Counsel for the first time announced that in his brief he would assert the "theory that the Respondent Company has violated Section 8(a)(3) by entering into an illegal union security contract ... with an assisted union," and referred to article III of the contract. Counsel for Respondent Company stated that he was "not waiving any objection to the untimeliness of any new theory." Both Respondents now contend in their respective briefs that this theory is untimely because it was never alleged in the complaint or urged during the hearing, and assert that if they had had the opportunity they would have adduced testimony to show that the second sentence of article III contained typographical or inadvertent omissions in that the word "not" was inadvertently omitted from between the words "also" and "be" and that the words " unless and until " I would reach the same conclusion in all respects even if, contrary to my previous findings, the card of Emmett Lewis were State and Federal Law permits" were inadvertently omitted from between the words "employment" and "that." Thus, they contend that, except for these inadvertent omissions , the second sentence would be consistent and in conformity with the first sentence, as intended by the parties, and would state that "It shall also not be a condition of employment unless and until State and Federal Law permits that," etc. Respondent Company and Respondent District 50 have submitted affidavits from Company President Clement and District 50 Regional Director Adkins, respectively, to that effect and to the intent of the parties in executing this agreement . Counsel for District 50 further contends that in any event the General Counsel has not proved that at the time of the execution of the contract District 50 was a labor organization that had been established, maintained, or assisted by any action defined in Section 8(a) of the Act as an unfair labor practice, which is the requirement in Section 8(a)(3) relied on by the General Counsel for rendering a union-security contract unlawful. I find merit in the contentions of Respondents. I find that, under the circumstances above set forth, Respondents were taken by surprise and did not have an opportunity to litigate the issue with respect to the union- security clause, and that the arguments in support of the contention that there were some inadvertent omissions seem plausible . On this state of the record, no findings may properly be made with respect to the union-security issue. I find that the General Counsel has failed to sustain the allegations of the complaint that Respondent Company unlawfully assisted and supported Respondent District 50 by recognizing and executing a collective-bargaining agreement with it on May 24, 1965, and thereafter maintaining said agreement. D. Violations of Section 8(¢)(3) Ira Aired was laid off on August 1, 1965, with a promise of being recalled. Sherman Silvers was laid off on August 2, also with a promise of being recalled. Arnold Sanford ceased working for the Company on August 13. The General Counsel contends, as the complaint alleges, that all three were discriminatonly discharged in violation of Section 8(a)(3) of the Act. At the instant hearing, counsel for Respondent Company stated the Company's position with respect to these three employees to be as follows: Alred and Silvers were temporarily laid off. At the time of their layoff, the Company offered them other work which they refused. They "later took jobs with other employers and elected not to return" to Respondent Company. Arnold Sanford "voluntarily terminated" his employment with Respondent Company. 1. Ira Aired Alred was employed by the Company as a dozer operator on the Carters Dam project in early May 1965. He worked on the night shift under Night Superintendent Hughes. On May 11, a few days after he started working, he signed a District 50 membership application card upon being solicited by Job Steward Farthing. On June 8 he signed a union authorization card for the Operating to be counted as having been signed before the execution of the contract CLEMENT BROTHERS CO., INC. Engineers. Shortly after Aired had signed a card for the Operating Engineers, Hughes asked him if he had been "fooling" around with the Operating Engineers; warned that if he had, he better "lay off of it"; and pointed out that while the Company could not fire him for his activities on behalf of the Operating Engineers, "they can find some other reason to fire you," all as previously found. Also as previously found, Hughes told Aired in another conversation during this period that he and Sherman Silvers "are on the spot," that "you're going to be in trouble if you don't drop this talking about the Operating Engineers," and that two men had told Hughes that Aired and Silvers "were passing out these cards" for the Operating Engineers. Shortly before his layoff, Project Superintendent Holland told Aired that Holland had been informed that Aired was "dabbling" with the Operating Engineers; warned that if Aired valued his job, he had "better cut that out" and let the Operating Engineers alone; and added that if the Operating Engineers got in, Aired "wouldn't get the 32 or 40 hour a week," all as previously found. Also as previously found, a few days before Alred's layoff, Hughes told motor grade operator Rochester that "there was some fellows there that were going to get into trouble if they didn't quit talking about the Operating Engineers and agitating," adding that Aired and Silvers might be laid off for that reason. On the evening of August 1, Hughes told Aired and dozer operator William Jones that he had to lay them off for about 3 weeks because it was necessary to cut down on dozer men until the bottom of the river was cleaned off. Hughes told Aired that he would definitely be called back as soon as the bottom was cleaned out.13 Aired returned to his home in Alabama and shortly thereafter found some work with the Tennessee Valley Authority About 3 weeks later, he returned and met Hughes whom he questioned about being called back. Hughes assured Aired that he still would be called back, explaining that they had not quite finished cleaning out the bottom. 14 Hughes admitted that Jones, who had less seniority than Aired, was put back as a dozer operator in about a week after their layoff.15 Hughes also admitted that he never made any attempt to call Aired back, that he hired more dozer operators as he needed them, and that Aired was never called back. As previously noted, at the beginning of the hearing, company counsel stated the Company's position to be that Aired had been temporarily laid off for economic reasons. In support of this position, Hughes testified on direct examination that Aired was laid off for lack of work. However, contrary to this testimony, Hughes admitted on cross-examination that in his pretrial affidavit, dated December 2, 1965, he stated as follows: "At the direction of W. B. Holland, I terminated Alred's employment on August 1, 1965. Ira Aired was terminated because he was not doing satisfactory work." He further admitted that when an employee is laid off for a week or so, it is 13 The findings in this paragraph are based on the mutually consistent testimony of Aired and Hughes Hughes also testified that at the time of the layoff he offered Aired temporary work as a laborer. Aired denied that any such offer was made I credit Aired's denial " The findings in this paragraph are based on the credited testimony of Aired Hughes testified that on this occasion Aired stated that he had a job closer to home and did not care whether he came back or not Aired emphatically denied ever telling 709 considered as a temporary layoff; but that when an employee is "discharged," he is "terminated." The General Counsel does not take issue with asserted economic need for a layoff. He contends that the layoff was used as a stratagem to effect a permanent termination of Alred's employment because of his activities on behalf of the Operating Engineers. I agree. As previously found, Holland and Hughes were aware of Aired's activities on behalf of the Operating Engineers and had warned that it would cost him his job if he did not stop. On one occasion, Hughes pointed out that the Company could find some other reason to use as a pretext to fire him for his activities on behalf of the Operating Engineers. On two separate occasions, Project Superintendent Holland had told employees Alday and Goodson, individually, that "I can't fire you for preaching about it [the Operating Engineers] but I can lay you off and not call you back" and that could be the same as a discharge, as previously found. Upon consideration of all the foregoing and the entire record as a whole, I am convinced and find that the Company had no intention of calling Aired back at the time of his layoff, that the layoff was seized upon as a stratagem to effect a permanent severance of his employment, that in reality Aired was discharged on August 1, 1965, and that the Company's actions in this regard were motivated by its opposition to Aired's known activities on behalf of the Operating Engineers. By such conduct, Respondent Company discriminated with respect to the hire and tenure of employment of Ira Aired, thereby discouraging membership in the Operating Engineers and encouraging membership in District 50 in violation of Section 8(a)(3) of the Act. 2. Sherman Silvers Sherman Silvers was employed by the Company at the Carters Dam project as a power shovel operator on May 3, 1965. He worked on the night shift under Superintendent Hughes. About 3 or 4 days after he started working, District 50 Job Steward Farthing told Silvers that we "got a little union here and we want to get all the men in it, if we can." At Silvers' request, Farthing agreed to wait a few days. On May 12, Farthing asked Silvers to sign a union card. In response to Silvers' query as to whether he had to sign, Farthing replied, "No, you don't have to but it would be better if you did." Silvers thereupon signed the District 50 card. The findings in this paragraph are based on the credited testimony of Silvers. On June 8, Silvers signed a union card for the Operating Engineers. He and Aired then began passing out cards for the Operating Engineers. Thereafter, Project Superintendent Holland approached Silvers as he was starting work and said, "Silvers, that other union that's trying to get in here.... I want to tell you right now that I can get all the operators that I need by just going to the phone," that Holland knew what was going on, and that if Hughes that he did not want to be recalled or that he did not care whether he came back or not As I have previously stated, I do not regard Hughes to be a credible witness I do not credit his testimony in this respect and credit Aired's denials 11 On the basis of Hughes' own testimony, this was before he allegedly was informed by Aired that he did not care whether or not he would be recalled It is also significant that in the case of Sherman Silvers, counsel for the Company stresses the fact that Silvers was junior in point of seniority 299-352 0-70-46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silvers "was going to keep fooling around it that other union]" Silvers would "be run off or be put out of a job," all as previously found. At that time, Silvers replied that he was a member of the Operating Engineers and had "washed my hands with it." On one occasion in June or July, during a conversation while they were eating dinner together, Holland told mechanic E. C. Watson, "I don't know what to think of that Paul Goodson who runs the motor grader messing with this little old union around here . that shovel operator, Silvers, . I've done warned him two or three times and ... if they don't quit . I'm just going to have to get rid of them, that's all," also as previously found. During this period, Hughes warned dozer operator Ira Alred that he and Sherman Silvers were "on the spot," and that two men had told Hughes that Alred and Silvers " are passing out these cards" for the Operating Engineers, as previously found. Also, as previously found, a few days before Silvers' layoff on August 2, Hughes told motor grader operator Rochester that "there was some fellows there that were going to get into trouble if they didn't quit talking about the Operating Engineers and agitating," adding that Alred and Silvers might be laid off for that reason. At the time of Silvers' layoff, there were only two shovel operators on the night shift, Silvers and one other employee. On August 2, 1965, Silvers was laid off under the following circumstances: Hughes informed Silvers that the Company was going to run the shovels every other shift, and discussed the possibility of alternating Silvers with the other shovel operator so that each would work every other night. Silvers asked Hughes, "Why not just lay me off until you get ready to go back to work full-time?", explaining that he believed he could find something to do in the meantime. The next day, Hughes informed Silvers that he had discussed Silvers' suggestion with Holland and that Holland said it would be all right to lay Silvers off until they got ready to work the two shovels full time. Silvers was laid off and never recalled; instead, another man was employed about 6 weeks later when the two shovels resumed full-time operation. The findings in this paragraph are based on the mutually consistent testimony of Silvers and Hughes. After his layoff, Silvers found employment in Rome, Georgia. About 2 or 3 weeks later, he returned to the Company's premises to get his last check. He met Holland coming out of the gate, and said, "Now, Mr. Holland, when you get ready to go back to work, get the bottom cleaned out, why ... you've got my number in there. Just give me a buzz," and "I'll be back." Holland promised to do so. During this conversation, Silvers informed Holland that he was then working in Rome, Georgia. The findings as to this conversation are based on the credited and undisputed testimony of Silvers. The Company did not call Holland as a witness and gave no explanation for its failure to do so. Hughes testified that about 2 or 3 nights after Silvers' layoff, Silvers telephoned Hughes and informed Hughes that he had another job in Rome, Georgia, and did not care whether he came back or not. 16 Hughes further testified that it was for that reason that the Company hired another man when the shovels were put back into full-time operation about 6 weeks after Silvers' layoff. Silvers emphatically denied that he ever telephoned Hughes or told Hughes that he had a job elsewhere and did not care whether or not he came back. Aside from the demeanor of the witnesses, a factor which causes me to credit Silvers, the undisputed facts are inconsistent with Hughes' version. I refer primarily to Silvers' reminder to Holland that Silvers be informed when the shovel work would be resumed and Holland's promise to do so, all of which is undisputed and occurred about 2 weeks after the alleged telephone conversation which Hughes attributed to Silvers. Moreover, Silvers had told Hughes that it was because he believed he could get work elsewhere in the meantime , that he suggested he be laid off until the shovels resumed full-time operation. In addition, Silvers testified, without contradiction, that his home was closer to the Company's project and that it was for that reason that he desired to return. Upon consideration of all the foregoing as well as the demeanor of the witnesses, I do not credit Hughes' testimony and find that Silvers never informed Hughes that he did not care whether he came back or not. The General Counsel does not dispute the Company's contention that there was an economic need for a temporary reduction in the work force. However, as in the case of Alred, he contends that this opportunity was seized upon as a convenient pretext to effect a permanent termination of Silvers. I agree. Both Holland and Hughes were aware of Silvers' activities on behalf of the Operating Engineers, had warned that he was "on the spot" because of it, and had threatened loss of his job for continuing to engage in such activities. As in the case of Alred, I find that when presented with the opportunity for laying Silvers off temporarily for economic reasons, the Company seized upon it as a device for terminating his employment permanently by never recalling him and thereafter hiring someone else in his place, a stratagem which Holland and Hughes had previously indicated they could resort to in order to rid the Company of an employee who continued to engage in activities on behalf of the Operating Engineers. Upon consideration of all the foregoing and the entire record as a whole, I am convinced and find that, as in the case of Alred, the Company never intended to recall Silvers at the time of his layoff, that in reality Silvers was discharged on August 2, 1965, and that the Company's actions in this regard were motivated by its opposition to Silvers' known activities on behalf of the Operating Engineers. By such conduct, Respondent Company discriminated with respect to the hire and tenure of employment of Sherman Silvers, thereby discouraging membership in the Operating Engineers and encouraging membership in District 50, in violation of Section 8(a)(3) of the Act. 3. Arnold Sanford Arnold Sanford was employed by the Company at the Carters Dam project about April 14, 1965. After the first day, he drove a water truck. He worked on the day shift under the immediate supervision of Mechanic Foreman Stacey Williamson. Sanford signed a District 50 card on April 16 when Job Steward Farthing told him he had to sign if he wanted to keep his job, as previously found. In June, he became active on behalf of the Operating Engineers. He signed an 'fi It seems significant that, as previously found, Hughes also testified to the same effect with respect to Alred CLEMENT BROTHERS CO., INC. 711 authorization card on June 14, attended union meetings, and got at least six other employees to sign cards for the Operating Engineers. On August 12, the very last day that he worked there, he asked employee Ed Berger, as they were riding in Sanford's truck, what he thought about signing up for the other union, referring to the Operating Engineers. Berger replied that he was satisfied with what he had. About a week before Sanford's employment termination, Mechanic Foreman Stacey Williamson told mechanic Watson that if Sanford did not "quit messing" with the union they were trying to get in, "we're just going to have to fire him." Williamson also stated that Sanford "ought to quit" his union activities and that Watson, being a friend of Sanford, should tell this to Sanford. Williamson further told Watson that Sanford was a good boy and that he hated to let him go but that, if he did not "quit messing" with it [the union], he was just going to have to let him got 7 On Thursday, August 12, there was an election for road commissioner for the county in which Sanford resided. At lunchtime, Sanford asked Project Superintendent Holland if the Eucs were going to shut down at 3 p.m. Sanford's query was prompted by the fact that when the Eucs, which stir up the dust, were shut down, Sanford does not have to do any watering. When Holland replied that the Eucs were going to shut down, Sanford stated that he was going to get off at 3 o'clock to go vote. Holland voiced no objection. Sanford left at 3 to go to vote. The findings in this paragraph are based on the credited and undenied testimony of Sanford, as Holland was not called as a witness. Earlier that week, Sanford had made arrangements with Bailiff Thornton to pay off a garnishment without it being served upon the Company, after Sanford had been informed by Williamson that Sanford would be fired if the garnishment were served. However, about 9:30 p.m. on August 12, Bailiff Thornton received a telephone call from a person whom he could not identify, and was told that Sanford was being fired and to bring the garnishment papers down and leave them with the guard. That night, Thornton left the garnishment papers with guard Larry Wicker, stating that he had been instructed to leave them with the guard. Wicker replied that he would turn them in to the office in the morning. When Sanford arrived at the jobsite about 8:30 the next morning, August 13, to see about getting his paycheck, guard Larry Wicker informed him outside the office that he had been garnisheed and fired. Sanford went into the office, received both of his checks which had already been prepared, and left the premises. The findings in this paragraph are not in dispute. Respondent Company's counsel stated at the opening of the hearing that the Company's position was that Sanford was not discharged but had voluntarily quit. At one point in his brief, company counsel states that "the testimony of Sanford, himself, could hardly be improved upon as establishing that he was discharged for cause"; at another point, counsel states that "Mr. Sanford was not discharged, but voluntarily quit." Foreman Stacey Williamson denied that Sanford was discharged and testified that Sanford had voluntarily "quit." The General Counsel contends that the garnishment was seized upon as a pretext to discharge Sanford because of his activities on behalf of the Operating Engineers. I agree. As previously found, only a week before Sanford's termination, Williamson, his foreman, warned that he would discharge Sanford if he did not quit "messing" with the Operating Engineers, the union they were trying to get in. Also, as previously pointed out, Williamson affirmatively refused to deny that he gave such a warning to mechanic Watson who also worked under his supervision, and in fact admitted that he well might have done so. On the morning of August 13, Watson missed Sanford at work because Sanford had frequently helped the mechanics. So he asked Williamson about Sanford's whereabouts. Williamson replied that Sanford "just wouldn't leave the union alone and he had to fire him but hated to because he was a good worker." Similarly, dozer operator Arlind Crisp asked Williamson what had happened to the water truck driver, referring to Sanford, as Ciisp had not seen Sanford around for a day or two. Williamson replied that "he's fired." When Crisp stated that he had heard that Sanford "was garnished," Williamson said, "he was but that wasn't it. I caught him getting Jay [J. E. Paul], trying to get Jay to sign a union card." Williamson also told motor grader operator Goodson on August 13 that he had "fired" Sanford because Sanford "had been running around here to get people to sign cards for the Operating Engineers." The findings in this paragraph are based on the credited and undisputed testimony of Watson and Crisp. Williamson did not deny having had these conversations with or having made these statements to Watson, Crisp, and Goodson. Finally, contrary to Williamson's denial on direct examination that Sanford was fired for his union activities or that Sanford was fired at all, he admitted on cross- examination that the following statements in his pretrial affidavit were true at the time when Williamson signed and swore to it on September 30,1965: I fired a water truck driver because he would not work right and laid out. I heard he was running around trying to get the men to sign up for the other union. I gave him time off to get straightened out with a garnishment one day. The next day he took off early without saying anything to me about it and the next day he did not show up to work. I fired him because he was talking to the men about the other union and because he was stirring the men up but most of all because he took off without telling me one day early and did not do the job right and because he did not report to work the next morning. Williamson admitted that he had told Sanford during his last week of employment, "Sanford, you're a good fellow to work, a good hand." He also admitted that "there's no rule that I know of" that says that one employee cannot stop to talk to another employee during working hours and that there is no company policy on it. Also, as previously found, Project Superintendent Holland had voiced no objection when Sanford told him during lunchtime on August 12 that he was going to leave at 3 that afternoon to vote. Upon consideration of all the foregoing, and the stratagems employed by the Company to discharge Alred and Silvers for their activities on behalf of the Operating " The findings in this paragraph are based on the credited witness Williamson testified that he would not deny having made testimony of Watson , who testified under subpena while still the statements attributed to him in the text, and admitted that "I employed by the Company and impressed me as a trustworthy might have made it" but that "I lust don't remember saying it " 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Engineers, as previously found, I am convinced and find that Sanford did not voluntarily quit his employment, but that the garnishment against Sanford was seized upon by the Company as a convenient pretext to discharge Sanford primarily because of his union activities on behalf of the Operating Engineers. By such conduct, Respondent Company discriminated with respect to the hire and tenure of employment of Arnold Sanford, thereby discouraging membership in the Operating Engineers and encouraging membership in District 50, in violation of Section 8(a)(3) of the Act. E. Violations of Section 8(a)(1) By engaging in conduct violative of Section 8(a)(2) and (3) of the Act, as previously found, I further find, on the basis of long established precedents, that Respondent Company has also derivatively violated Section 8(a)(1) of the Act. In addition, I also find, as alleged in the omplaint, that Respondent Company independently violated Section 8(a)(1) of the Act by the conduct of Project Superintendent Holland, Night Superintendent Hughes, Labor Foreman Lyles, and Mechanic Foreman Williamson in threatening employees with discharge and other economic reprisals for supporting or engaging in activities on behalf of the Operating Engineers, all as previously found in detail. Finally, I find, as also alleged in the complaint, that Hughes' previously found conduct in asking employees Alred and Moncrief if they had been "fooling around" with the Operating Engineers, in asking employee Jones if he belonged to a union, and in asking employee Rochester if Moncrief had been talking to him about the Operating Engineers, considered in their context and setting as well as in the light of the other unfair labor practices found, independently constituted interference, restraint, and coercion further violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the Respondent Company's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent Company has engaged in unfair labor practices violative of Section 8(a)(1), (2), and (3) of the Act and that Respondent District 50 has engaged in unfair labor practices violative of Section 8(b)(1)(A) of the Act, I will recommend that each Respondent cease and desist therefrom and that each take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Company discrimina- torily discharged Ira Alred, Sherman Silvers, and Arnold Sanford on August 1, 2, and 13, 1965, respectively, I will recommend that the Company offer them immediate and "The record shows that Sanford was reemployed by the Company on January 15, 1966, as a laborer at approximately 25 cents per hour less than he earned on the water truck He was no longer employed by the Company at the time of the instant full reinstatement to their former or substantially equivalent positions ,' 8 without prejudice to their seniority or other rights and privileges , and make each whole for any loss of earnings he may have suffered as a result of the discrimination against him , by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of discharge to the date of the Company's offer of reinstatement , less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F . W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co ., 138 NLRB 716. I have found that Respondent Company did not violate the Act by recognizing and executing a collective- bargaining agreement with District 50 on May 24, 1965, and that this contract has not been shown to be unlawful. Although I have found that Respondent Company did render unlawful assistance and support to District 50 in violation of Section 8(a)(1) and (2) of the Act, all of such unlawful conduct , with the exception of one isolated incident which was not of a flagrant nature, occurred after the execution of the May 24 contract. Respondent's conduct in unlawfully assisting District 50 to obtain additional members and dues after the execution of the contract does not on this record warrant an inference that the ability of District 50 to represent the employees in the daily administration of its contract was thereby adversely affected. Under these circumstances , I do not deem it necessary to effectuate the policies of the Act to recommend an order to cease giving effect to the contract or to cease recognizing District 50 unless and until certified. The Board had reached the same conclusion under similar circumstances in Lykes Bros. Inc. ofGeorgia, 128 NLRB 606 . And the following statement of the Board in that case (p. 611) is equally applicable here: Under all the circumstances, therefore , we do not believe that an order requiring the parties to suspend their bargaining relationship pending an election is necessary to effectuate the policies of the Act. Accordingly , as there is no basis for a finding that the contract between the parties involved herein was a consequence of the unfair labor practices found, or that this contract thwarts any policy of the Act, we reject the Trial Examiner 's recommendation for the issuance of a cease recognition order. The General Counsel seeks a reimbursement order for dues and other assessments checked off by the Company from employees' wages and remitted to District 50 pursuant to signed checkoff authorizations and the provisions of the contract . As previously noted, the District 50 membership application card also contains a checkoff authorization so that by signing such a card, the employee is authorizing the checkoff. However , under the circumstances disclosed by this record, "such reimbursement is appropriate only to those employees whose payments are shown to have been made under coercion."" This would include those employees who were coerced into signing the District 50 membership application cards. I have previously found that such coercion was practiced by Respondent Company against seven named employees , all but one of whom was after the hearing I find that this did not constitute reinstatement to his former or substantially equivalent position. "' Meyers Bros. of Mtssourt, Inc., 151 NLRB 889, 890, Majestic WeavingCo., Inc, of New York, 149 NLRB 1523,1524. CLEMENT BROTHERS CO., INC. execution of the contract20 and by Respondent District 50 against nine named employees both before and after the execution of the contract 21 I will therefore recommend that each Respondent reimburse the herein named employees whom it has respectively coerced into signing the District 50 membership card for all initiation fees paid to District 50 and for all dues, assessments, or other moneys in payment of their membership obligation, which was checked off pursuant to the checkoff authorizations contained therein, with interest thereon to be computed in the manner set forth in Seafarers International Union of North America, 138 NLRB 1142.22 I will further recommend that each Respondent cease giving effect to the checkoff authorizations signed by the herein named employees whom it has coerced. In view of the nature and extent of Respondents' unfair labor practices, I find it necessary in order to effectuate the policies of the Act to recommend that Respondents cease and desist from infringing "in any other manner" upon the rights guaranteed to employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By discriminating with respect to the hire and tenure of employment of Ira Aired, Sherman Silvers, and Arnold Sanford, thereby discouraging membership in the Operating Engineers and encouraging membership in District 50, labor organizations within the meaning of Section 2(5) of the Act, Respondent Clement Brothers Company, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By rendering unlawful assistance and support to District 50, said Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 3. By the foregoing conduct, by the conduct of Project Superintendent Holland, Night Supervisor Hughes, Labor Foreman Lyles, and Mechanic Foreman Williamson in threatening employees with discharge and other economic reprisals for supporting or engaging in activities on behalf of the Operating Engineers, and by the conduct of Night Superintendent Hughes in interrogating employees about their union interests and activities and those of other employees, said Respondent Company has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Shop Steward Charles Farthing, at all times material herein, was acting as an agent of Respondent District 50 within the meaning of Section 2(13) of the Act. 5. By the conduct of Shop Steward Farthing in threatening employees with loss of employment unless they signed District 50 membership application cards, in warning that continuance of their employment would be conditioned upon signing such cards, in making veiled threats to employees' job security and tenure if they did 21 James Rochester, John Wiggins, James Dawkins, Frank Cullum. John Moncrief. William Jones. and Jack Crump 2' Emmett Lewis, Newman Hudson, T L [Bingham, Arnold Sanford, Arlind Cnsp, E C Watson, Paul Goodson, and Joe and Gary Butler 11 The Board has issued a reimbursement order against a union 713 not sign such cards, and in promising that signing such cards would help employees obtain and retain the jobs they desire, Respondent District 50 restrained and coerced the employees in the exercise of their Section 7 rights and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondents did not engage in any unfair labor practices alleged in the complaint which are not specifically found herein. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER A. Respondent, Clement Brothers Company, Inc., Carters, Georgia, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Union of Operating Engineers, Local 926, or any other labor organization, and encouraging membership in and activities on behalf of International Union of District 50, United Mine Workers of America, or any other labor organization, by discriminatorily dis- charging or laying off employees, or by discriminating against them in any other manner with respect to their hire or tenure of employment or any term or condition of employment. (b) Giving assistance and support to International Union of District 50, United Mine Workers of America, or to any other labor organization, in obtaining union membership application or authorization or checkoff cards, or in any other manner proscribed by Section 8(a)(2) of the Act. (c) Giving effect to the checkoff authorizations obtained through coercion from James Rochester, John Wiggins, James Dawkins, Frank Cullum, John Moncrief, William Jones, and Jack Crump. (d) Threatening employees with discharge or any other economic reprisals for supporting or engaging in activities on behalf of International Union of Operating Engineers, Local 926, or any other labor organization, or for not signing membership cards for International Union of District 50, United Mine Workers of America, or any other labor organization. (e) Interrogating employees concerning their union interests and activities and those of other employees in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Ira Aired, Sherman Silvers, and Arnold where , as in this case , it found only a violation of Section 8(b)(1)(A) General Drivers, Chauffeurs and Helpers , Local 886, Teamsters (Unit Parts Co), 119 NLRB 222, 223, cf. International Union of Operating Engineers , Local 513 (Long Construction Co), 145 NLRB 554 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanford immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) 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. (d) Reimburse the employees named in paragraph 1, (c), of this Recommended Order for initiation fees, dues, assessments , or other moneys received by International Union of District 50, United Mine Workers of America, in payment of their membership obligation, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (e) Post at its place of business in Carters, Georgia, copies of the attached notice marked "Appendix B." 23 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.24 B. Respondent, International Union of District 50, United Mine Workers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening employees with loss of employment or other economic reprisals for not signing, or promising more desirable employment or other economic benefits for signing, union application or authorization or checkoff cards for International Union of District 50, United Mine Workers of America, or any other labor organization. (b) In any other manner restraining and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Respondent Clement Brothers Company, Inc., not to give effect to the checkoff authorizations obtained through coercion from Emmett Lewis, Newman Hudson , T. L. Bingham, Arnold Sanford, Arlind Crisp, E. C. Watson, Paul Goodson, Joe Butler, and Gary Butler. (b) Reimburse the employees named in the preceding paragraph for initiation fees, dues, assessments, or other money received in payment of their membership obligation, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (c) Post at its offices and meeting places in the vicinity of Carters, Georgia, and Atlanta, Georgia, copies of the attached notice marked "Appendix C."25 Copies of said notice, to be furnished by the Regional Director for Region 10, after being duly signed by the official representative of said Respondent, shall be posted by Respondent District 50 immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail signed copies of the attached notice marked "Appendix C" to the Regional Director for Region 10 for posting by Respondent Clement Brothers Company, Inc., in conspicuous places at its place of business in Carters, Georgia, including all places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 10, shall be returned forthwith to said Regional Director, after they have been signed by an official representative of Respondent District 50, for such postings. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.26 14 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 " 24 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 " 25 See In 23, supra 2F See In 24, supra 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 discourage membership in or activities on behalf of International Union of Operating Engineers, Local 926, or any other labor organization , and WE WILL NOT encourage membership in International Union of District 50, United Mine Workers of America, or any other labor organization, by discriminatorily discharging or laying off employees , or by discriminating against them in any other manner with respect to their hire and tenure of employment or any term or condition of employment. WE WILL NOT give assistance and support to District 50, or any other labor organization, in obtaining union membership application or authorization or checkoff cards, or in any other manner proscribed by Section 8(a)(2) of the Act. WE WILL NOT threaten employees with discharge or any other economic reprisals for supporting or CLEMENT BROTHERS CO., INC. engaging in activities on behalf of the Operating Engineers, Local 926, or any other labor organization, or for not signing membership or authorization cards for District 50, or any other labor organization. WE WILL NOT interrogate employees concerning their union interests and activities and those of other employees, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL NOT give effect to the checkoff authorizations coercively obtained from James Rochester, John Wiggins, James Dawkins, Frank Cullum, John Moncrief, William Jones, and Jack Crump. WE WILL reimburse the above-named employees for initiation fees, dues, assessments, or other moneys received by District 50 in payment of their membership obligation. WE WILL offer to Ira Alred, Sherman Silvers, and Arnold Sanford immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make them whole for any loss of earnings suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named or any other labor organizations. CLEMENT BROTHERS COMPANY, INC. (Employer) Dated By (Representative) (Title) 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 days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice 715 or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street N.E., Atlanta, Georgia 30323, Telephone 526-5741. APPENDIX C NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA 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 employees of Clement Brothers Company, Inc., with loss of employment or other economic reprisals for not signing union application or authorization or checkoff cards, and WE WILL NOT promise employees more desirable jobs or other economic benefits for signing such cards. WE WILL NOT in any other manner restrain or coerce said employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL notify Clement Brother Company, Inc., not to give effect to the checkoff authorizations coercively obtained from Emmett Lewis, Newman Hudson, T. L. Bingham, Arnold Sanford, Arlind Crisp, E. C. Watson, Joe Butler, and Gary Butler. WE WILL reimburse the above-named employees for initiation fees, dues, assessments, or other moneys received in payment of their membership obligation. INTERNATIONAL UNION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street N.E., Atlanta, Georgia 30323, Telephone 526-5741.