Thomas Jordan, Inc.

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas Jordan, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case 15-CA-2936 February 5, 1968 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA On July 24, 1967, Trial Examiner A. Norman Somers issued his Decision in the above-entitled proceeding, finding that the Respondent had en- .gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom mended Order of the Trial Examiner and hereby or- ders that the Respondent, Thomas Jordan, Inc., Harvey, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. Delete from paragraph 2(b) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms to be provided...." TRIAL EXAMINER'S DECISION A. NORMAN SOMERS, Trial Examiner: This case, with all parties represented, was heard before me on March 7 and 8, 1967, on complaint of the General Counsel, alleging that Respondent violated Section 8(a)(5) and (1) of the Act. The parties waived oral argument and the General Counsel and Respondent have filed briefs. On the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT. 1. THE BUSINESS OF THE EMPLOYER Respondent is a Delaware corporation engaged in leas- ing and repairing barges. It has a shipyard in Harvey, Louisiana, and in the past representative year its gross in- come exceeded $500,000, of which over $100,000 was for the rental of barges to customers domiciled outside Louisiana. During that period, Respondent purchased over $50,000 worth of materials which originated outside the State. I find and conclude that Respondent is engaged in interstate commerce within the meaning of the Act and in an amount meeting the Board's standards for the asser- tion of jurisdiction.2 II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue It is undisputed that at a meeting held on September 12,1966,3 a majority of Respondent's shipyard employees signed authorization cards designating the Union as their bargaining representative and that on September 13, the Union sent Respondent a bargaining demand and filed with the Board a representation petition, both of which Respondent received the morning of September 15. Also undisputed is the fact that Respondent, after the meeting in which the employees ;signed the union authorization cards, granted substantial benefits to the employees, whereupon they withdrew their union authorizations, and also signed a paper purporting to withdraw the petition for an employee election. The three employees, constitut- ing the group who were the "committee" or intermedia- ries between Captain E. L. Franks, Respondent's marine superintendent, and the working force, testified in sub- stance that Captain Franks conditioned, the granting of the benefits on the men's abandoning the Union and foregoing an employee election and that Respondent ac- ceded to the demands of the group the afternoon of Thursday, September 15. This would-be- after Respond- ent received the Union's bargaining demand and a copy' of the election petition. However, Franks testified that the concessions were made by Respondent on Wed- nesday, September 14, which would be the day before the receipt, of the. Union's bargaining demand and election petition, and that Respondent made these concessions, without knowing of any union in the picture. The issue is thus basically one of credibility. We proceed to the evidence. ' Issued December 23, 1966, on charges filed September 27, 1966. ?The facts relating to commerce are derived largely from data stipulated into the record by the parties after the hearing. Presumably, the stipulation is intended to supersede the motion made by Respondent at the outset of the hearing to dismiss the complaint for lack of jurisdiction. Assuming the motion to be still before me, it is hereby denied. 3 The year in all instances is 1966, unless otherwise indicated. 169 NLRB No. 98 B. The Evidence THOMAS JORDAN, INC. 675 shipyard employees after work on Monday, September 1, Background: the employees' dealings with Respondent for better working terms preceding their seeking out and signing up with the Union On Saturday, September 10, Wesley (Eddie) Abney and another employee approached Justilian Martin, Inter- national representative of the Union, for the purpose of having Respondent's shipyard employees organized. According to the undisputed and credited testimony of Abney, this approach came after the following occur- rences at the shipyard during the week that preceded: At the request of the working force that he be their "spokesman," Abney informed Gillis Molaison, the yard foreman, that the men wanted either 9 hours' work a day of the equivalent thereof in the form of a pay raise. Molaison said he would pass this on to "Cap," i.e., E. L. Franks, Respondent's marine superintendent. The em- ployees met with Franks that afternoon, and he told them that "the man," i.e., Thomas Jordan, president of Respondent, could not comply with either demand and that if they were not satisfied, they "could go elsewhere and look for another job." The men then decided to ap- proach the Union, which at that time was conducting an organizing campaign in the area. They contacted an offi- cial of the Union (other than Martin) and made an ap- pointment with him to meet the men at Bessie's Tavern, which adjoins Abney's home. At the appointed hour, the employees gathered at the tavern, but that official did not show up. After the meeting at Bessie's, Respondent posted a notice at the shipyard granting the request for the 9-hour day but cautioning that "this may cause a reduction in force."4 The ensuing apprehension, espe- cially among the younger men, was deepened by the taunts of Branch Jordan, a labor foreman and nephew of Respondent's president, that they got what they wanted but half of them "won't be around to enjoy it." The men decided to approach the Union again. It was then that Abney and a fellow employee made the contact with In- ternational Representative Martin previously referred to. On Saturday, September 10, they sought Martin out at ,another yard, where he happened to be organizing, and arranged` for Martin to meet with the Respondent's 4 The language of the notice thus testified to by Abney was not chal- lenged. Though Captain Franks, m a conversation he initiated with Abney after a majority of the men signed up with the Union on September 12, softened its interpretation, the notice itself was not produced or proffered, nor did H. E. (Gene) Cunningham, the timekeeper and clerk who drafted the notice on instructions from Franks, contest Abney's description of the substance of the notice. 5 There is no dispute concerning the appropriateness of the bargaining unit and its composition. The complaint describes it as: All production and maintenance employees employed by Respond- ent at its Harvey, Louisiana, shipyard, excluding office clerical em- ployees , technical employees, professional employees , guards and su- pervisors as defined in the Act ... These consist of welders, fitters, tackers, crane operators, oilers, sand- blasters, laborers, a painter, an electrician, and a maintenance man. G.C. Exh. 3(a), listing Respondent's "Barge Terminal Payroll, Week Ending September 8, 1966," names 45 employees in these job classifications G.C. Exh 3(b), titled "Employees from September 12, 1966 to February 15, 1967," shows these same 45 to have been on the payroll the week beginning September 12. Exhibit 3(b) lists 10 additional persons in these job classifications under the heading, "Employed Since September 12, 1966:" The date of their employment is not stated, but since all employees who were terminated after September 15, 1966 (the day of the receipt of the bargaining demand), are denoted by an asterisk, presumably these 10 were hired after September 12 and were working on September 15 The 12, at Bessie's Tavern. 2. The meeting outside Abney's house on September 12 and the signing of union authorization cards by a majority of the employees The meeting was held on Monday, September 12, at 4:30 p.m. as scheduled, in the backyard of Abney's home (Bessie's being a bit noisy for such an event). Of the 45 rank-and-file employees at Respondent's shipyard, 29 at- tended, including Abney, and they all signed union authorization cards.5 The deliberations were described at the hearing by Representative Martin. After being in- troduced by Abney, Martin informed the 29 employees of the campaign of organization in the area and of the prevailing union wage scale and benefits. He exhibited to them a "blue card," stating: "I, the undersigned employee of Thomas Jordan, Inc., hereby select the above named Union as my collective bargaining agent." Martin explained to them (as did the heading of the card under the words "Authorization for Representa- tion") that this was not an application for membership, but that by signing the employee "was asking Interna- tional Brotherhood to represent him." Martin asked for questions, and the persons present indicated "we have heard enough, let's get the cards out and sign." The cards were passed out and, as previously related, all 29 present signed.6 Martin then explained that since this constituted a sizable majority, the employees could follow either or both of two courses: the Union could file an election peti- tion with the Board or it could send a letter to Respondent asking for recognition. The group said, "Let's go both ways." Martin then informed the group that Abney and the em- ployee with whom he had approached Martin on Satur- day (Hardy McLendon) would be the "committeemen" for the Union and that he would send a letter to the Com- pany naming them in that capacity. Some in the group suggested they "all get on it." Martin cautioned them that they would thereby be "wide open in case the company wants to try anything funny." The group nevertheless agreed that the Union's letter to the Company name all 29 as "the Committee."7 General Counsel claims the unit relevant to the issue here involved con- sists of the 45 employees named on the September 8 payroll (G.C. Exh. 3(a)). I see no contrary contention in Respondent's brief, but even if the unit were enlarged by the 10 in question to 55, the 29 who signed would still constitute a majority. 6 All cards are dated September 12, with the exception of those of Abney and McLendon, which are dated September 10. That is the date when these two employees, under instructions from the group, sought out Union Representative Martin. 7 At the hearing, Robert Owens (one of the three employees who later that week were the intermediaries between the working force and Captain Franks culminating in the previously described, and later more fully detailed, wage and benefit concessions granted by Respondent) testified that he interpreted Martin's statement to be (as he had stated in his pretrial affidavit), that "the card was to get an election and if the Union won they would represent us for wages, hours, and conditions of work." It would seem clear from the prelude to the group's asking Abney to contact the Union that they wanted it as the agent to help remedy the causes of their dissatisfaction. That was manifestly their purpose in delegating Abney to contact the Union, in coming to the meeting, and in signing the card-that the Union "represent" them. Owens may have emerged with the impres- sion that an election would be needed to make that desire effective, but the whole tenor of the meeting and what preceded it, endows with persuasive force Martin's version of what he told the assembled employees , and he is credited. 350-212 0-70-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The letter demanding recognition; the filing of the representation petition and its rejection On September 13, in accordance with the decision at the previous day's meeting, Martin on behalf of the Union sent Respondent, for the attention of Captain Franks, two letters. One was a demand for recognition on the basis of the designation of the Union by a majority of Respond- ent's production and maintenance employees (supra, fn., 5), with an offer to submit to a card check by "a neutral third party mutually agreed upon." The other named the 29 employees who had signed authorization cards the previous day as "Committeemen for the purpose of or- ganizing their fellow employees in behalf of the [Union]." The same day also, Martin filed with the Board's Regional Office a representation petition asking for certification as bargaining representative of the em- ployees in that unit. Respondent received these the morning of Thursday, September 15. On Friday, September 16, Respondent wrote Representative Martin as follows: This will acknowledge your two letters dated Sep- tember 13, 1966, addressed to us at Harvey, Loui- siana. Prior to receipt by us of these two letters, several of our employees, acting as a committee representing all of the employees, advised us that although a group had indicated to you that they desired to become members. of your organization, and had asked that an election be held to determine whether or not the majority of employees wished to be represented by you, all of this group wanted to rescind their action. This morning, all of our employees advised us that they had notified you that they do not wish to become members of your organization; and that they do not wish you to act as their representative. 4. Captain Franks' contact with the employees culminating in the wage-and-benefit concessions and the employees' renunciation of the Union a. The events from Tuesday, the 13th, to the men's informing the Union on Thursday, the 15th, of their change of heart The "committee representing all our employees," which Respondent mentions in its letter of September 16, arose out of conversations initiated by Captain Franks in- dividually with employees Robert Owens and Eddie Ab- ney. On that day, Franks summoned Owens to his office and sometime after his talk with Owens, he sent for Ab- ney. Owens testified, in substance, that Franks asked why the men were organizing into a union and that he, Owens, attributed it to the apprehensions caused by the warning in the notice of the preceding week that the 9- hour day then granted them could bring about a reduction in forces Abney testified in greater detail concerning Franks' interview with him.9 Franks opened by telling him he understood Abney was "trying to form a union," and when Abney explained he "was just trying to represent the men at their request," Franks said, "I hear you are the ringleader, that you are holding meetings at your back yard." Abney further testified: Q. Did you reply to that? A. Yes, I told him I wasn't no ring leader. I was in the Union thing up to my neck, but no deeper than any other man. Q. Did Captain Franks say anything when you said that? A. He asked me had I seen the Union official. I told him that I had. Q. Was anything else said in that conversation? A. Well, he asked me what did we expect to gain by it? Q. Did you answer? A. Yes, I told him "Security, for one thing." I told him about the note that he had put on the bulletin board and that the men with less seniority or the younger men in the yard felt that was a threat that they would be laid off. Q. Did he make any answer to that? A. He said the note didn't mean that. He said that the note was that if anybody quit they wouldn't be replaced. Q. Was anything else said in that conversation? A. Well, he said that if they held an election back there that half the crew would be laid off. Abney informed his waiting fellow employees of his talk with Franks. Otis Kennedy, who, like Abney and Owens, was among the 29 who signed a union authoriza- tion card at the September 12 meeting (but had not been called in by Franks, as had Owens and Abney), suggested they see "Cap" in an effort to "straighten this out." Ab- ney, Owens, and Kennedy then went to see Franks, and that was the "committee" to which Respondent refers in its letter of September 16. These three, who are still employed by Respondent and who testified under the "rule," recounted their course of dealings with Franks the remainder of that week. Their versions are in substantial accord concerning the sub- stance and the sequence of the discussions. Abney, as the spokesman, opened by suggesting that "maybe we can straighten this out among ourselves," since "we don't want to see nobody lose their job," and that if Franks "would offer us what the Union would offer us, maybe we could settle it." Franks said he did not know what the Union's offer was, and Abney replied "the Union more- or-less offered us-we would get all paid holidays, two weeks vacation, $3.42 an hour. 9'10 Franks said that a raise 8 Owens at'first testified Franks asked for the cause of "the confusion and dissatisfaction amongst us," but, when asked whether Franks said anything else, answered that Franks "might have asked me why they had talked about organizing or something to that effect," and that he replied that the previous week's notice was "what started them in starting the Union." 9 Abney testified that he was called in individually by Franks on Wed- nesday, the 14th. Franks testified it was Tuesday, the 13th. For reasons hereafter appearing, it is not crucial whether Franks' individual talk with Abney occurred n the 13th or the 14th. The recital of events in the text proceeds on the premise that Franks' individual talks with Owens and Abney both occurred on the 13th. io At that time Respondent had no paid holidays, and gave 1 week's an- nual vacation with pay to employees with at least 3 years' seniority. As to the wage rate, Abney testified he was then getting $3.20 an hour. G.C. Exh. 3(b), supra, fn. 5, shows this to have been the rate for the regular wel- ders (Abney's classification) and the fitters (Owens' classification). That detail is not essential to the case. The point was that the demand was for a pay raise to bung the rate up to the union scale. THOMAS JORDAN, INC. and paid holidays were up to President Jordan but that he could on his own grant them the additional week vacation provided they "dropped the Union" by signing a "peti- tion" to that effect.11 Abney said he would speak to the men. At the end of the shift, as Abney testified, he was summoned by Franks through Cunningham, the timekeeper (supra, fn. 4). Franks then handed Abney a petition to circulate among the men to the effect that they were willing to accept the 2-week vacation and to drop the Union. Abney circulated the petition among the men, but none of them signed. When he got back to the office, he found Cunningham, the timekeeper, there (and also the night watchman), and, telling Cunningham he was returning the petition, Abney laid the unsigned paper on Captain Franks' desk.12 The following morning, Thursday, the 15th, Franks summoned Abney, Owens, and Kennedy to his office. He told them that "the man" (President Jordan) now authorized him to grant them over and above the 2-week vacation, 5 paid holidays a year, and a wage raise-in ex- cess of the union scale.13 Franks told the three employees to pass this on to the men, but they suggested he talk to them. Franks said he would do so at the end of the shift. "After the whistle blew," the men gathered at the office and Franks repeated, in substance, what he had told the men. He also said he had "fired the boss' nephew, (Branch Jordan, who had been an irritant to the men and whose name also came up in the prior discussion). Abney testified that Franks "said we could get it if we dropped the Union." The men agreed they would comply with Franks' condition and told him they would so inform the Union that afternoon. The men thereupon proceeded to the union headquar- ters, where they told Representative Martin that since the Company had now more than matched the terms offered by the Union, they wanted to rescind their prior action.14 b. The circulation, preparation, and signing of the "petition" of withdrawal addressed to the Board This incident, while hardly crucial to the basic issues has assumed Significance at another level mainly because of the strange explanation by Respondent concerning its genesis. This will be discussed in connection with Respondent's own version of that week's occurrences. As the three employees told it, on the morning of Friday the 16th, they informed Captain Franks of their visit the previous afternoon to the union representative and of what occurred, whereupon Franks said the men would have to advise the Board that they wanted to drop the 11 The above is Abney's testimony, as substantially corroborated by Owens and Kennedy. Owens ascribed to Franks the requirement that they "drop the proceedings with Mr Martin." At a later stage he used the term "drop the Union." The two concepts were apparently used in- terchangeably. Thus Kennedy testified that Abney informed Franks at that meeting that "we signed the cards to join the Union" and that Franks said that "if we would drop the Union or either sign a petition not to have an election in the yard, that he would give us two weeks vacation" and also that "if an election was held there, at least half of the men will be laid off." 12 That document was not produced. Abney described it as being on a yellow sheet similar to Resp. Exh. 1 , which is the petition that the men later signed after Respondent granted them their additional demands. Owens and Kennedy confirmed that at the end of the day on Wednesday, the 14th, Abney circulated a petition he had brought out from Franks' of- fice, which he read off to the men, but which the men did not sign. Ken- 677 proceeding, and added that he would have a petition fixed up for them to mail to the Labor Board. Shortly before unch that day, Abney and Owens testified, they went to Franks' office where Cunningham, the timekeeper, handed them the "petition" (Resp. Exh. 1), which reads: September 26th, 1966 National Labor Relations Board Region 15 T-6024 Federal Bldg (Loyola) 701 Loyola Ave. New Orleans, La. 70113 Dear Sir: We the Employees of Thomas Jordan, Inc. in a group went to the union on September 15th and notified them that the misunderstanding that we had had been cleared up and we did not want to join the union. This was done verbial, [sic] we are notifying you by this letter to that effect. Yours truly. Abney and Owens, corroborated by Kennedy, testified they circulated the petition among the men just before lunch on Friday, the 16th, and after garnering the signa- tures of the employees who had signed union authoriza- tion cards, they returned it to the office and handed it to Cunningham. The document itself, concededly prepared by Cun- ningham, bears the date September 26. The three em- ployees could not recall whether the document had a date when-they circulated it or explain why it was dated 10 days after the date they testified they procured it from Franks' office and returned it there with the employees' signatures. c. Respondent's version Respondent, through Captain Franks and timekeeper Cunningham, gave a sharply different version of the sequence. As Franks told it, Respondent granted all the concessions-by Wednesday, the 14th, the day_ before Respondent received the Union's letter requesting recog- nition and a copy of the representation petition. Franks testified that about 8 o'clock the morning of the 13th, Robert Champagne, the maintenance man, informed him nedy further testified he saw the unsigned paper lying on the desk the morning of Thursday, the 15th, when they were in Franks' office in response to the latter's call. 13 In the cases of men whose rate, such as Abney's , Owens', and Ken- nedy's, was $3 an hour or over, the raise would be 27 cents, which brought it to 5 cents higher than the union scale. In respect to those receiving less than $3 an hour, the raise would be 20 cents. 14 The representation case was suspended pending the charge, which as noted (supra, fn. 1), the Union filed on September 27. On September 15 when the men told Martin of the developments at the yard since their meeting on the 12th, he reminded them that he had warned them on Sep- tember 12 that something like that could happen , observed that they were now at "the mercy of the Company," and asked their wishes about filing a charge. Some employees had meanwhile left, but about 18 were still there when they went along with the suggestion articulated by one in their ranks that they "go all the way" and file charges. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the men had held a meeting the previous afternoon in the back of Abney's house.15 Franks testified that he thereupon summoned employees Owens and Abney to his office, and in separate conversations with each, asked them what the "trouble" was, and they told him the men wanted the three concessions (wage raise, 2 weeks'-vaca- tion, paid holidays), whereupon he said he could only give them the extra week's vacation and the rest was up to President Jordan. Franks further testified that after work that same day, the 13th, he met with all the yard workers and they repeated the demands stated by Owens and Abney and also demanded that Branch Jordan, the pre- sident's nephew, be fired. Franks further testified that he tried unsuccessfully to contact President Jordan that night, and finally reached him at his home at 6 o'clock the morning of Wednesday, the 14th, and that Jordan said he would consult Mr. Crane, the comptroller; that Crane telephoned him, Franks, at 9 o'clock that same morning and gave his approval, whereupon Franks called in Ab- ney, Owens, and Kennedy (with no explanation of how he came to include the last named employee) and conveyed the tidings to these three employees, who, in turn, sug- gested he tell it to the men, and that he did so at 4:30 p.m. that afternoon. Franks testified further that when he an- nounced these concessions made by the Company, some employee suggested that Abney now go to the Union, and that Abney insisted they all go with him, and that this reference to the Union, made, as he testified, the after- noon of Wednesday, the 14th, was the first he knew of a union being in the picture. Franks testified he thought the men had gone to the Union that same night, Wednesday, the 14th, "but I understand now that they didn't go until Thursday night-to the Union hall." Franks further testified that the men had indeed re- ported to him that they had gone to the Union and told its representative they wanted to rescind their prior action. At first he conveyed the impression that the men reported this to him the day after they saw the Union's representa- tive, but upon observing the date of the "petition" (Resp. Exh. 1) he was now sure that they did not report their visit to him until over a week after they went to the Union on a date corresponding to the one on the exhibit-the 26th. As to that document, Franks testified he never saw it until a Board agent showed it to him in November dur- ing the investigation of the charge in this case. Timekeeper Cunningham testified he had indeed drawn up that paper, but not until the 26th, which was well after he came back from his vacation (which he testified had been from September 11th through the 18th) and had been told he "missed all the fun," and that on that day someone from the yard, whose identity-whether it was Foreman Molaison or anyone else-he could not recall, asked him to draw such a paper and that he obliged, after which he handed it to Abney and Owens before there were any signatures on it, and he never saw it again. Cun- ningham further denied having drawn any earlier petition of the kind that the employees testified was circulated by Abney on Wednesday, the 14th, and returned by him un- signed, since that was the week, Cunningham testified, that he was on vacation. d. Appraisal and resolution The testimony of the three employees concerning the content and sequence of Franks' talks with them and with the working force rang true, and that given by Franks did not. Theirs squared with the probabilities and Franks' was ridden with contradictions with established fact and within itself. First: It is hardly likely that an employer, who only the week before had rejected its employees' demand for I more hour of work a day with the invitation to "look for another job," and then (after a meeting at which the union representative failed to show up) couched the granting of such demand with the caveat that this could cause a reduction in force, would be galvanized into granting con- cessions of such a far-reaching character, without stronger pressure than the mere knowledge that the men had had a meeting together. Second: Franks could hardly have emerged from his talks with Abney and Owens without knowing, as their testimony indicates he did, and of which they informed him in any event, that the men had signed up with the Union. As previously stated (supra, In. 15), Robert Champagne, the maintenance man who Franks testified vwas the first to inform him of the meeting outside Abney's house on September 12, had not been to that meeting, but his father and borther had been there and had signed up. It would seem a reasonable inference that Robert, having taken the trouble to inform Franks of that meeting, would have passed on at least such information concerning it as he would naturally have received from his kin. Franks at first impliedly admitted this when he testified: TRIAL EXAMINER: Did the maintenance man Champagne, Robert, did he mention anything about his father and brother being there, or was he silent about that? THE WITNESS: Well he was silent in a way. Of course - TRIAL EXAMINER: Was he in a way not silent about it? THE WITNESS: Well, he didn't like it. TRIAL EXAMINER: How do you know he didn't like it? THE WITNESS: Well, from what he said. He wouldn't sign it. Thereafter, he testified: TRIAL EXAMINER: Will you tell us as best you can-you said, "In a way he was silent." Now I am asking you, was there any way in which he was not silent about the presence of his brother and father? THE WITNESS: He never said one word either way. TRIAL EXAMINER: Did I ask you whether they signed or whether he told you they signed? THE WITNESS: No he didn't tell me they signed. TRIAL EXAMINER: Did he tell you they were there? THE WITNESS: No sir. He did not. TRIAL EXAMINER: So he just said they had a meet- ing? THE WITNESS: Yes Sir. TRIAL EXAMINER: He didn't say it was a Union meeting? THE WITNESS: No Sir. The incredibility of the second portion of the witness' testimony above quoted was here compounded by the manner in which the witness backtracked from the admis- sions he had just made. The testimony that Robert ex- pressed his dislike of the fact that his father and brother 15 Robert Champagne had, not attended the meeting, but his father, Walter, and brother, Pat, were among the 29 who attended the meeting and signed up. THOMAS JORDAN, INC. 679 had signed up and made known that he, Robert, "wouldn't sign" rather clearly indicated that Robert had told Franks that the meeting of which he.was informing him was one in which union cards had been passed out and signed. As already mentioned, the probabilities would point to that inference even without the admission, for it would have been only natural for Robert, once he thought the matter important enough to go to Franks with the information, to have learned from his own kin and passed on to Franks, what occurred at the meeting that he was reporting. The denials by Franks which came on the heels of his unwitting disclosure were uttered with the air of one who realized he had already told more than he had intended and was now determined to keep what he knew to himself. This was hardly calculated to inspire con- fidence in his openness or candor. Third: Franks, in describing his conversation with Abney and Owens, testified they told him the men "wanted a raise similar to what they were paying at Todd-Todd-Johnson Shipyards." Franks admitted that he knew that this was an organized shipyard, which in it- self would confirm the testimony of the employees that their discussion with Franks was on the premise of the men having cast their lot with the Union. Fourth: Franks' testimony that when the concessions were announced to the men, they talked of at once going to union headquarters, taken in connection with the established fact that the men did go there on the afternoon of Thursday, the 15th, confirms the testimony of Abney, Owens, and Kennedy that the day on which Franks an- nounced the threefold concessions was the same day on which they went to the Union to announce their disaffec- tion- Thursday, the 15th. This brings it to sometime after Respondent' received the Union's bargaining demand and representation petition. In the light of the foregoing, it hardly matters whether the petition, Resp. Exh. 1, was drafted by Cunningham on the 26th or the 16th. However, it is to be noted that Franks testified that the day on which the men reported to him that they had been to the Union was the one cor- responding' to the date on the petition. This conflicts with the statement in Respondent's letter to the Union of Sep- tember 16,i which recites that "this morning, all of our employees advised us that they had notified you that they do not wish ... you to act as their representative." The natural time for a writing which would confirm such an assertion would be the day on which the employees "ad- vised" Respondent of what they had told the Union. This would be the 16th, the day on which the employees testified Franks said he would have a petition prepared for them to sign and send on to the Board. As for Cunningham's testimony that he was away on vacation and, to use his expression, had "missed all the fun" that week, it came rather startlingly after the men, in all innocence, and with no apparent knowledge that this presence that week was a matter in controversy, casually named ,him as being present on various occasions. These included Tuesday, the 13th, when Abney had his first conversation with Franks, Wednesday, the 14th, when, as he testified, he was called into Franks' office through "the timekeeper," and given the first petition, which Abney returned to Cunningham at the office after the men rejected it, and Friday, the 16th, when, as Abney and Owens testified, they received from Cunningham the petition which conformed to what Franks had indicated to them he (would arrange to get up for them for transmit- tal to the Board. Cunningham during his testimony created doubts concerning his reliability by his palpable reluctance to reveal who had asked him to draw up the petition. Franks, during his own testimony, opened with a slip which tended to confirm that during that week, which Respondent by its actions indicated it deemed to be crucial, Cunningham, whether officially on vacation or not, had been called into service for at least part of the "fun." Cunningham had already completed his testimony and was now seated among the spectators. Franks, who followed Cunningham, was giving his version of what Abney and Owens told him the men -demanded. During that portion of his testimony, the following occurred: A. [By Franks] ... They wanted a raise similar to what they were paying at Todd-Todd-Johnson Shipyards. I said, "well, what are they paying down there?" "Well, we don't know exactly." "Well, I will call down there and find out what the pay scale is," which I had Mr. Cunningham to do. MR. CUNNINGHAM: No. THE WITNESS: No, you didn't? I have you mixed up.... I guess afterwards we found out what the scale was... . C. Ultimate Findings and Conclusions Based on the probabilities as a whole, the quality of the testimony, and the demeanor of the witnesses , I conclude that the preponderance of the evidence supports the sequence of events as testified to by Abney, Owens, and Kennedy. It follows that with knowledge that a majority of the employees had authorized the Union to represent them, Respondent initiated a course of conduct designed to bring about their disaffection from the Union and to cause them to rescind the action they had taken at the meeting with Union Representative Martin on September 12 in designating the Union as their collective-bargaining representative. This consisted of the interrogation by Franks of Owens and Abney on Tuesday, the 13th, the threat by Franks made to Abney on that day and repeated the next day , Wednesday, at the meeting held with Ab- ney, Owens , and Kennedy, that if an election were held, half the men would be laid off, and the offer made on Wednesday the 14th of 2 weeks ' vacation if the men dropped the Union or signed a petition to drop the elec- tion proceeding, and the added offer made Thursday, the 15th, of a raise in pay in excess of the union scale and 5 paid holidays, as well as to discharge the offensive nephew of the boss, conditioned on the same terms as the preceding day's offer. By such conduct and the impres- sion of surveillance created by Franks in his talk with Ab- ney, in which he told him he had heard of Abney's role in "trying to form a union" and of being "the ringleader," Respondent interfered with, restrained, and coerced the employees in the exercise of their rights under Section 7, thereby violating Section 8 (a)(1) of the Act. Respondent further violated Section 8(a)(1) of the Act in instigating, sponsoring, and preparing for the employees' signatures the letters or petitions the 14th and the 16th, purporting to rescind their prior designations of the Union and ask- ing the Board for the termination of any proceeding con- cerned with their choice of a collective-bargaining agent. By rejecting the Union's bargaining request dated Sep- tember 13 and received by Respondent the morning of the 15th, Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused to bargain with the Union as the 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority designee and therefore the exclusive bargaining representative of the employees in the unit defined in fn. 5, supra, Respondent further violated Section 8(a)(5) and (1) of the Act by granting and offering concessions as to wages, vacations, and holidays without prior consultation and discussion with the Union as the employees' exclu- sive bargaining representative, N.L.R.B. v. Benne Katz, 369 U.S. 736, and by bypassing the employees' exclusive bargaining agent and negotiating with its employees directly concerning these matters. Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678. IV. THE REMEDY Respondent has been found to have engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. The recommended order will include the require- ment that it cease and desist therefrom. Since the viola- tions included threats of reduction in force, and other coercive conduct, the recommended cease-and-desist order will be in the broad form in order to achieve the "benefits of prophylaxis or prevention." 16 As affirmative action to effectuate the policies of the Act, the recommended order will include a direction to bargain with the Union, on request, in respect to grievances, hours, rates of pay, wages, and working con- ditions. This remedy is, of course, traditional where Respondent has been found to have refused to bargain with the Union on request. But it would also be applicable even if the concessions as to wages and benefits had been made before Respondent received the Union's bargaining request. This because the Respondent's course of con- duct, beginning the day after the meeting with the Union's representative, was engaged in for the purpose of destroy- ing the Union's majority and, as is reasonably to be in- ferred, in anticipation of receiving the Union's bargaining request based on the majority designation. In such in- stance, a remedial bargaining order is appropriate even if, contrary to the case here, a specific finding of an 8(a)(5) violation were not warranted and the only provision vio- lated were Section 8(a)(l). D. H. Holmes Company, Ltd. v. N.L.R.B., 179 F.2d 876, 880 (C.A. 5); N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344, 347 (C.A. 6); Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369, 374 (C.A. 7); Furr's Inc. v. N.L.R.B., 381 F.2d 562, 570, fn. 16 (C. A. 10); United Steelworkers v. N.L.R.B. [Northwest Engineering Co.], 376 F.2d 770, 773 (C.A.D.C.); see also Yazoo Valley Electric Power As- sociation, 163 NLRB 777, where a remedial bargaining order was issued in a case where the employer unlawfully acted to destroy the union's majority, though the union bad not yet made a bargaining request. The notice to be posted will include a brief preliminary statement concerning the reason for it. See Wabana, Inc., 146 NLRB 1162, 1186, 1188; Bilyeu Motor Corp., 161 NLRB 982. On the basis of the foregoing findings and the entire record, I hereby state the following: CONCLUSIONS OF LAW 1. On April 12, 1967, a majority of the employees duly designated the Union as their collective-bargaining representative and by virtue thereof the Union has at all times since said date been the exclusive collective-bar- gaining representative of the employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its Harvey, Louisiana, shipyard, excluding office clerical employees, techni- cal employees, professional employees, guards and supervisors as defined in the Act. 2. By creating the impression of surveillance of em- ployees' union activity and by making threats of reprisal and promises of favor and granting the favors as induce- ments to the employees to withdraw their authorization and support of the Union, and by instigating and assisting in the preparation of papers or documents for the signa- tures of employees in purported rescission of prior action in support of that Union, Respondent interfered with, restrained, and coerced employees in the exercise of their rights as guaranteed l:y Section 7 of the Act, thereby en- gaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. By promising and granting wage and benefit conces- sions to the employees in said unit without notification of and consultation with the Union as the exclusive collec- tive-bargaining representative of the employees, and bypassing the employees' exclusive bargaining represent- ative and dealing directly with said employees, Respond- ent refused to bargain with the Union, thereby violating Section 8(a)(5) and (1) of the Act. 4. By rejecting the Union's request for recognition and for bargaining in respect to the wages and working condi- tions of the employees in said unit, Respondent refused to bargain with said Union as the employees' exclusive bargaining representative, thereby violating Section 8(a)(5) and (1) of the Act. 5. Said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On the foregoing findings and conclusions and the en- tire record, and pursuant to Section 10(c) of the Act, I issue the following: RECOMMENDED ORDER Thomas Jordan, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening a reduction in force if its employees adhere to or support International Brotherhood of Boiler- makers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, or continue with any proceeding before the National Labor Relations Board concerned with their choice of a collec- tive-bargaining representative. (b) Interrogating any employee regarding meeting with a union representative or any other union activity or sup- port, for the purpose of or with the foreseeable result of interfering with, restraining, or coercing employees in the exercise of their rights as guaranteed by Section 7 of the Act. (c) By claims to possession of information concerning any employee's role in support of the Union or other con- certed activity, creating or seeking to create the impres- sion that the union or other concerted activities of the em- ployees are under surveillance. (d) Promising or granting concessions in regard to 16 Hutcheson, Judging as Administration, Administration as Judging, 21 Texas L. Rev. 1, 6. THOMAS JORDAN, INC. rates of pay, vacations, paid holiday, or other benefits as inducements to employees to withdraw or withhold their support of the above or any other labor organization. (e) Refusing to bargain collectively with the above- named Union as the exclusive collective-bargaining representative of the employees in the unit described in paragraph 2(a) hereof. (f) Granting or promising any concessions in respect to rates of pay, vacations , paid holidays , or any other terms or conditions of employment , without prior notifi- cation of and consultation with said Union as the exclu- sive collective-bargaining representative of the em- ployees in said unit or bypassing the employees ' exclu- sive bargaining representative by dealing directly with said employees in respect to said matters; provided, how- ever, that nothing herein shall be construed to require Respondent to rescind or discontinue the wage raise or other benefits already granted. (g) Instigating, promulgating , or causing to be promul- gated any paper or petition withdrawing the employees' support of the above or any other labor organization or for the purpose of terminating or affecting any proceeding pending before the National Labor Relations Board. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with Interna- tional Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, as exclu- sive collective-bargaining representative of its employees in the unit described below in respect to grievances, labor disputes, wages, rates of pay, vacations, paid holidays, and other benefits, hours, or other conditions of work, and, if an understanding or accord is reached , embody the same in a signed written agreement. The-said unit is: All production and maintenance employees em- ployed by Respondent at its Harvey, Louisiana, shipyard, excluding office clerical employees, techni- cal employees, professional employees , guards and supervisors as defined in the Act. (b) Post at its yard in Harvey , Louisiana, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's offi- cial representative , shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily^ posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director , in writing , within 20 days from the receipt of this Decision , what steps have been taken to comply herewith. 1I "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 Ap- peals Enforcing`a.n Order" shall be substituted for the words "a Decision and Order." 18 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 681 Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: After a trial in which both sides had an opportunity to present their evidence , a Trial Examiner of the National Labor Relations Board found that a majority of the em- ployees at our shipyard in Harvey , Louisiana, had duly designated the Union named below as their bargaining representative and that we engaged in certain unfair labor practices with the purpose and effect of having our em- ployees revoke such designation. Accordingly, for the purpose of remedying these unfair labor practices and af- fording the selection theretofore made of the Union a fair chance to succeed, we hereby promise the following, with the assurance that we will keep our promise: WE WILL NOT coercively ask employees about their or other employees' union or other concerted activities , and WE WILL NOT, by claiming to have in- formation about these activities , create or try to create the impression that we are having these activi- ties watched and reported on to us. WE WILL NOT threaten our employees with reduc- tion in force for selecting the Union named below or any other labor organization as their collective-bar- gaining representative as indicated or for going ahead with any proceeding concerned with their selection of such a representative. WE WILL NOT promise or grant our employees wage raises or other benefits as inducements to withdraw their designations of the said Union as their bargaining representative as indicated or from any proceeding concerned with such designation. WE WILL NOT instigate, prepare, or assist in the preparation of any petition or paper for the signa- tures of employees purporting to rescind support of the Union or asking for the termination of any proceeding before the Labor Board concerned with the selection of a collective-bargaining agent. WE WILL, upon request, bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers, AFL-CIO , as the exclusive collective-bargaining representative of the employees in the bargaining unit described below in respect to grievances, labor disputes, wages, rates of pay, vacations , holidays, and other benefits, hours, and all other working con- ditions, and WE WILL sign any agreement reached. The bargaining unit is: All production and maintenance employees employed by us at our Harvey , Louisiana, shipyard, excluding office clerical employees, technical employees, professional employees, guards and supervisors as defined in the Act. WE WILL NOT change any condition in respect to hours, rates of-pay, vacations, holidays, or other benefits or other conditions of work without notify- ing or consulting with said Union. However, nothing herein prevents or is intended to prevent our continu- ing in effect any wage raises , vacations , and holidays previously given to you. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL respect your right'under the National Dated By Labor Relations Act to join or assist or bargain col- (Representative) lectively through International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, For- gers and Helpers , AFL-CIO, or any other union of your choice. THOMAS JORDAN, INC. (Employer) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361.