Huttig Sash and Door Co.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Huttig Sash and Door Company, H S D Corporation, and Lumbermen's Supply Company and Drivers, Chauffeurs and Helpers Local Union 886, affili- ated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. Case 16-CA-3137 November 12, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On May 23, 1968, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recom- mending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. THE REMEDY In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondents commence to bargam in good faith with the Union as the recognized bargaining representative in the appro- priate unit. See Mar-Jac Poultry Company, Inc, 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817, Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondents, Huttig Sash and Door Company, H S D Corporation and Lumbermen's Supply Company, Oklahoma City, Oklahoma, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LiBBIN, Trial Examiner. Upon charges filed on October 26, November 7, and December 11, 1967, and January 26 and February 21, 1968, by Drivers, Chauffeurs and Helpers Local Union 886, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16 (Fort Worth, Texas), issued an amended complaint, dated February 21, 1968, against Huttig Sash and Door Company, HSD Corporation, and Lumbermen's Supply Company, herein collectively called the Respondents. With respect to the unfair labor practices, the amended complaint alleges in substance that since November 1967, Respondents refused to bargam, upon request, with the Union after it had been certified as bargaining representative in an appropriate unit, refused to rehire Charles Lowman, engaged in specified acts of interference, restraint and co- ercion, and by the foregoing conduct violated Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. In its duly filed answer, Respondents deny all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at Oklahoma City, Oklahoma, on March 27 and 28, 1968. All parties appeared at the hearing by counsel, participated therein, and were given full opportunity to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and thereafter to file briefs For the reasons hereinafter indicated, I find that Respond- ents violated Section 8(a)(1), (3), and (5) of the Act. Upon the entire records in the case, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENTS Respondents, Huttig Sash and Door Company, HSD Corporation, and Lumbermen's Supply Company are Delaware and Oklahoma corporations, respectively. Huttig Sash and Door Company has its principal offices in St. Louis, Missouri, and various other plant facilities in the States of Missouri, Montana, North Carolina, Virginia, and Texas, where it is engaged in manufacturing and distributing mill work and building products HSD Corporation and Lumbermen's Supply Company have their offices and principal place of business in i Inadvertent errors in the typewritten transcript of testimony have been noted and corrected 173 NLRB No. 118 HUTTIG SASH AND DOOR CO. Oklahoma City, Oklahoma, where they are engaged in manu- facturing and distributing mill work and building products. Respondents' plant in Oklahoma City, Oklahoma, is the only plant involved in this proceeding. During the 12 months preceding the issuance of the amended complaint, Huttig Sash and Door Company sold and distributed products from its plants in Missouri, Montana, North Carolina, Virginia, and Texas, directly to points located in other States of the United States, which products shipped from each State were valued in excess of $50,000. During the period from October 31, 1966, to October 31, 1967, Lumbermens Supply Company, the proprietor of the plant now operated by Respondents, made purchases of goods and materials from outside the State of Oklahoma valued in excess of $50,000, which goods and materials were shipped from points located outside the State of Oklahoma directly to its plant in Oklahoma City, Oklahoma, during the same period, Lumbermens Supply Company made sales of its product to customers valued m excess of $500,000. Respondents HSD Corporation and Lumbermen's Supply Company, in the course and conduct of their business operation after November 1967, at the Oklahoma City plant hereinabove mentioned purchased goods and materials from points located outside the State of Oklahoma valued in excess of $50,000, which goods and materials were shipped directly to the above-mentioned Oklahoma City plant. Upon the above-undisputed facts, I find that Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that the Union listed in the caption of the amended complaint is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction, the Issues The Union was certified by the Board on October 6, 1967, as the exclusive collective bargaining representative of an all-employee unit for the employees of Lumbermen's Supply Company, the proprietor of the plant now operated by Respondents in the manufacture and distribution of mill work and building products. With full knowledge of this certifica- tion, Respondents on October 20, 1967, executed a contract with said Employer for the purchase of its business assets. The transfer of said assets took place on October 31, 1967, and the following day, with no break in continuity, the Respondents assumed operations of the business with the identical super- visory staff, including the plant manager, and virtually the same work force except for Charles Lowman, a truckdriver whom Respondents refused to hire. Thereafter, Respondents refused, upon request, to meet and bargain with the Union or to recognize it as their employees' bargaining representative. Instead, Respondents unilaterally, and without consulting or informing the Union, granted wage increases to their em- ployees. The principal issues litigated in this proceeding are (1) whether Respondents are a successor employer so as to render their refusal to recognize and bargain with the certified Union 771 a violation of Section 8(a)(5) and (1) of the Act, (2) whether Respondents' admitted supervisors and attorney engaged in acts of interference, restraint and coercion within the meaning of Section 8(a)(1) of the Act, including interrogation, promises of benefits, threats of economic reprisals and wage increases, and (3) whether the failure and refusal to employ Charles Lowman was discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act. B. The Refusal To Bargain 1. The requests and refusals On September 28, 1967, the Board's Regional Director conducted an election in the following unit of the employees of the then existing Lumbermens Supply Company: "All employees of the Lumbermens Supply Company in Oklahoma City, Oklahoma, including warehousemen, mill workers and truckdrivers" but "excluding salesmen, office employees, guards, watchmen and supervisors as defined in the Act " The tally of ballots shows that all nine eligible voters cast their ballots for the Union, which was then certified as the exclusive bargaining representative on October 6, 1967. By letter dated November 8, 1967, to Respondents' Attorney Gardner, the Union's Attorney McCaffrey requested a meeting "at a mutually satisfactory date" to discuss the employment status of C W. Lowman and to discuss arrange- ments for dates for further negotiation sessions for the purpose of finalizing a collective bargaining agreement Having been previously instructed by Respondents' Plant Manager Poteet to direct his bargaining request to Respondents' attorney, George Gardner, in Roanoke, Virginia, Union President Pannell on November 20, 1967, telephoned Gardner at his office in Roanoke, Virginia, and requested a meeting "to discuss the employment status of Charles Lowman" and "to discuss a labor contract in regard to wages, hours and working condi- tions of the employees employed in the Oklahoma City" plant Gardner replied that he would be in Oklahoma City on December 4 at which time he would be glad to meet and discuss these matters with Pannell. Thereafter, Pannell made a reservation for the parties to meet at the Holiday Inn in Oklahoma City. About 3 p.m. on December 4, 1967, Gardner telephoned Pannell at the latter's office in Oklahoma City and advised that he would not meet with Pannell because he felt Respondents were not obligated to bargain with the Union Pannell took issue with him but Gardner adhered to his position and stated that Pannell had a right to file unfair labor practice charges. As hereinafter found in more detail, about December 15, 1967, Plant Manager Poteet called Respondents' employees into his office, individually, and informed them of a wage increase which Respondents were granting retroactive to the preceding pay period 2. Contentions of the parties The foregoing facts are not in dispute The General Counsel contends that Respondents are the successor to the original Lumbermens Supply Company for whose employees the Union was certified as the exclusive bargaining representative, that "the Employer - employee relationship, the industry and the employee unit remained intact, and that under well established precedents the duty to bargain with the [Union] 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters devolved upon the Respondents as the Successor Employer in a continuing industry." He therefore asserts that Respondents' admitted conduct in refusing to recognize the Union as exclusive bargaining representative of their employees in the certified unit, in refusing to meet and to negotiate with the Union as such representative, and in unilaterally granting wage increases to the unit employees, constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act Counsel for Respondents does not take issue with the facts hereinabove set forth and with the precedents requiring a successor Employer to honor and be obligated by a union's certification as exclusive bargaining representative in an appro- priate unit of the employees of a predecessor Employer He contends, however, that (1) Respondents are not the successor to the old Lumbermens Supply Company and therefore are not obligated to honor the Union's certification and to bargain with it, and (2) that in any event the certified unit is not an appropriate unit for Respondents' employees. He therefore asserts that for the foregoing reasons Respondents' admitted refusals and unilateral action is not violative of the Act I will now treat with these contentions a. The successorship issue As previously noted, with full knowledge that the Union had won a Board election among the employees of the original Lumbermens Supply Company, Respondent Huttig Sash and Door Company, herein sometimes called Respondent Huttig, on October 20, 1967, executed a contract with said Lumber- mens Supply Company to purchase, either by itself or through a subsidiary, the latter's assets and name, contingent upon an agreed upon transfer of the inventory. By letters dated that same day, Lumbermens Supply Company advised its creditors that "we have entered into a contract with Huttig Sash and Door Company, 8900 Page Boulevard, St. Louis, Missouri, to sell them our stock of merchandise and certain other assets, including our name. They will continue the business at the same location" [emphasis supplied]. On October 27, 1967, Respondent Huttig formed Respondent HSD Corporation to take title to the assets referred to in the purchase agreement and "to conduct a general sash and door business " The transfer to said assets took place on October 31, 1967, and the operation of the business of Lumbermens Supply Company was continued the next day by the purchaser without any break in the continuity of operation or in the service and wages of the supervisory staff and work force taken over by the purchaser On November 1, 1967, the Board of Directors of HSD Corporation proposed, and on that same day the shareholders of said corporation unanimously adopted, a resolution to amend the articles of incorporation to change the name from HSD Corporation to Lumbermen's Supply Com- pany and to increase the number of shares to be allotted by said corporation. On November 6, 1967, the original Lumber- mens Supply Company, the seller herein, through the Secre- tary of the State of Oklahoma, consented to the use of its name or a sinular name by HSD Corporation. On November 17, 1967, HSD Corporation amended its articles of incorpora- tion to rename the corporation, Lumbermen's Supply Com- pany, and to reflect subscriptions of 5,000 shares of common stock issued as follows- 4,997 shares to Respondent Huttig by President R. F. Eason, one share to the said R. F. Eason, individually, and one share each to D. Montgomery and to W E. Waller, officers of Respondent Huttig. The signatory for HSD Corporation and for Huttig Sash and Door Company is the common president, R. F. Eason. The value of the inventory sold by the old Lumbermens Supply Company under the contract of sale which had been executed with Respondent Huttig was approximately $200,000. Harold L. Cullen, vice president of the seller and the signatory to the contract of sale, testified that this represented approximately 85 percent of the inventory on hand at the time of the sale. However, the contract of sale specifically limited the purchaser to a $20,000 value exclusion of the inventory on hand at the time of sale and provided that the rejected merchandise shall consist of "obsolete, damaged, defective," materials, " or may consist of discontinued patterns and/or sizes or thicknesses or may otherwise not be readily market- able for reasons other than generally recognized seasonal fluctuations in demand."' All machines and equipment on hand at the time of the sale, including two fork lift trucks, were sold for $12,000, and all the furniture and fixtures on hand at the time of the sale, including office machinery, were sold for $9,500. The stationery and office forms on hand at the time of the sale, including a recent purchase of a 2-year supply of invoices, all of which contained the name of the old Lumbermens Supply Company, were also sold. All the records of the seller, except some personal records, remained on the prenuses and in the possession of Respond- ents. In addition, the accounts receivable and accounts payable records remained with Respondents Under the terms of the contract of sale, the purchaser, "for accommodation only," was to collect the accounts receivable and to pay the accounts payable in the name of the seller, the old Lumbermens Supply Company, and was to make an accounting thereof Both the old Lumbermens Supply Company (the seller herein) and the Respondents operate out of the same building and premises, and in each case these were and are leased from the same lessor at substantially the same rent. There is no sign on the building to indicate that Respondent Lumbermen's Supply Company is a branch or subsidiary of Respondent Huttig Sash and Door company. The same vehicles used by the seller, including trucks, pickups, vans and bobtails, are used by Respondents, and in each case they were and are leased from the same lessor. The trucks still have the words "Lumbermens Supply" on them but not "Huttig Sash and Door " The same signs on the buildings and trucks have been there since the old Lumbermens Supply Company had them. The old Lumbermens Supply Company, the seller herein, had a bank account against which payroll and business checks were issued. Since the sale, Respondents have the same bank account, with the exception that the magnetic accounting number imprinted on the check is different. The supervisors with authority to sign checks for the old Lumbermens Supply Company are the same supervisors who sign checks for Respondents. Sometime prior to October 30, 1967 W E. Poteet, plant manager of the old Lumbermens Supply Company, distributed to the employees, and mailed to those not present, a notice, addressed to "All Employees," and stating that "A 2 The materials which were rejected by the purchaser remained in the possession of Cullen-Homes , Inc , a corporation formed by the seller after it had consented to the use of its name by HSD Corporation. Cullen-Homes , Inc., is not an operating company and was formed for the purpose of liquidating the materials which the purchaser rejected and to collect the seller's accounts receivable. HUTTIG SASH AND DOOR CO. 773 representative of Huttig Sash and Door Company will be taking applications for employment Monday and Tuesday October 30th and 31st" at the plant office. Pursuant to this notice, F. J. Schweitzer, assistant to the President of Huttig Sash and Door Company at St. Louis, Missouri, came to Oklahoma City and on the stated days interviewed all the employees and supervisors who wished to be retained by the purchasei. Manager Poteet, all other supervisors, and all rank-and-file employees who were employed at the time of the sale, were terminated by the seller as of the end of October 31, were then rehired by Respondent Huttig for the same respective jobs and at the same rate of pay, and began working in the same capacities for Respondent Huttig as of November 1, without any break in service or in pay 3 Among those rehired and who continued to work for Respondents were all the eligible voters who voted in the election of September 28, 1967, with the exception of Charles Lowman The same supply of timecards were used for the hourly employees, although they were changed in the rack on November 1 The same bookkeeping system that existed before the sale is used by Respondents and the office is managed by the same office manager. The same vacation, sick leave, and overtime policies of the old Lumbermens Supply Company were continued by Re- spondents. Respondents credited employees with time accrued with the old company in determining the duration of the vacation due them, and paid all employees the overtime premium pay earned in the week of transition, based upon the total hours worked without regard to the number of hours worked for each company. Respondents manufacture the same products as the seller with the exception of a prehung door unit, which Respondents began to manufacture about a month before the instant hearing. This is an assembled unit, and the machine used to assemble these units consists of a table with fixed tools which do the job which could be done by hand tools. The remainder of the products handled by Respondents are composed of the same materials as before the sale and, with the exception of the door units machine, the identical equipment is used that was used before the sale. Indeed, no equipment has been moved or rearranged. Virtually the only difference between the old Lumbermens Supply Company's inventory and Re- spondents' inventory is that Respondents carry additional items such as additional stair parts, an additional type of wood paneling, prefinished plywood, plastic sheeting, polyethylene films, a different make of bifold doors, and additional fireplace parts. Respondents make deliveries to some of the same customers and to new customers. The above facts are not in dispute. They unequivocally demonstrate that after the sale Respondents continued to operate the identical industry at the same location and with virtually the same equipment and facilities, with more than substantial continuity in the business enterprise, and with the same management and virtually the same rank-and-file per- sonnel, all of whom continued to occupy their respective identical positions without any break in service and paychecks and with the same employer-employee relationship. Based on a long line of Board and court precedents,4 I find that the previously detailed facts clearly and unmistakably establish Respondents as the successor to the old Lumbermens Supply Company. b. The appropriate unit I find no merit to Respondents' contention that the unit is inappropriate because of the inclusion of the truckdrivers. No other labor organization is seeking to represent the truckdriv- ers in a separate unit. An all-employee unit is always appropriate, and the all-employee unit in this case has remained intact despite the succession of owners Moreover, the evidence adduced at the instant hearing, instead of militating against the appropriateness of the inclusion of the truckdrivers in the unit, further supports their inclusion. Thus, the admitted and undisputed testimony shows that drivers on occasion work in the warehouse when they have no driving assignments, performing the identical work of the warehouse- men, and that some warehousemen work as relief drivers when the need for their services arises due to the absence of the regular drivers. In addition, the warehousemen and truckdriv- ers are supervised by the same persons. I find that the certified unit remains readily identifiable and continues to be an appropriate unit. 3. Concluding findings I find that all employees of Respondents in the Oklahoma City, Oklahoma, plant, including warehousemen, mill workers and truckdrivers but excluding salesmen, office employees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I also find that at all times material herein the Union has been, and still is, the exclusive representative of all the employees in said appropriate unit within the meaning of Section 9(a) of the Act. As successor to the old Lumbermens Supply Company, Respondents have assumed the obligation of recognizing and dealing with their employees' majority representative. Their "refusal to do so within a few months after the certification of that representative, at a time when the Union's continuing majority status was not vulnerable to attack, constitutes a violation of Section 8(a)(5) and (1) of the Act,"5 and I so find. I further find that Respondents' conduct in unilaterally granting wage increases to the unit employees about the middle of December 1967, constitutes "a circumvention of the duty to negotiate" with the Union and hence an additional violation of Section 8(a)(5) and (1) of the Act.6 C. Interference, Restraint, and Coercion 1. The facts 3 The only exceptions were Warehousemen Eaton and Rice, who were not hired until February 1968 due to a slow business period, and Charles Lowman , who is hereinafter found to have been unlawfully discriminated. 4 See, e g , Zayre Corp., 170 NLRB No . 190, Makela Welding, Inc., 159 NLRB 965, 971 , Martin Marietta Corporation, 159 NLRB 905; 907, 918-919, Auto Ventshade, Inc, 123 NLRB 451 , 456-457, enfd. 276 F.2d 303 (C.A. 5); Overrate Transportation Company, Inc., 157 NLRB 1185, 1186-87, 1189-90 , enfd. F.2d 765 (C A. 4), cert. denied 389 U S. 838, McFarland & Hullinger, 131 NLRB 745 -746, enfd. 306 F.2d 219 (C.A. 10), and Lunder Shoe Corporation, 103 NLRB 1322, 1324-25 5Zayre Corp., 170 NLRB No. 190 , and cases cited in in. 4 6N L R.B v. Katz, 369 U.S. 736, 743. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. Attorney George Gardner discuss bettering their working conditions and to review their salaries, and expressed the feeling that they would be drawing more money than the rate provided in the Georgia-Pacific contract. He cautioned however that the Company would not be forced into anything but pointed out that "you scratch Huttig's back and they will scratch yours." Gardner also informed the employees that "Huttig had to close down the St. Louis plant because there were too many unions and a man didn't know what to pick up or do." Gardner did not testify. Six witnesses testified for Respond- ent with respect to Gardner's speech With respect to the matters set forth in the preceding paragraph, these witnesses testified as follows. Manager Poteet testified that Gardner explained that some Huttig plants had 2-week vacation plans and others had 3-week vacation plans but that nothing was said as to which was union or nonunion. Warehouse Foreman Schmidt admitted that "mention" was made that "the working conditions would be improved," that he did not "believe" Gardner ever stated that nonunion plants had better vacation plans than the Union plants, and that he did not "recall" Gardner stating that if they scratched Huttig's back they will scratch yours. Superintendent Coker testified that "I didn't hear" Gardner make the latter comment. Gerry Tarver, an office employee, did not deny that Gardner made any of the statements set forth in the preceding paragraph. Office Manager Beesley and Superintendent Coker testified that they did not "recall" Gardner saying that the length of the vacation period in the Huttig plants was-related to whether they were union or nonunion, and Assistant Plant Manager Sanders testified that Gardner made no such relationship. Superintendent Coker testified in more detail about Gardner's speech than any other witness for Respondents He admitted that among the things which Gardner stated Huttig would do for the employees was to "review the wages to get some increases in salary," that he stated "there would be increases for everybody, hourly personnel, and he and Mr. Schweitzer would be coming back at a later date to go into this situation." Coker also remembered that Gardner mentioned Georgia-Pacific, "another company here in town that had a union contract," and that he stated that "we at Lumbermen's Supply would wind up with a better deal than that they had out there with the Union." Coker also recalled that Gardner told the employees that "nothing would be taken away from [what] we had, that Huttig Sash and Door would be adding to but nothing would be taken away as far as the wages or benefits and so forth." In response to Gardner's question as to whether he had promised the employees higher wages for refraining from supporting the Union, Coker testified, "The closest-well, I'll put it this way. The only thing that I might remember that might pertain to that was that I believe you did say that you believed Huttig Sash and Door Company had taken over that they would end up with a better deal than what Georgia-Pacific had with the Union." Upon consideration of all the foregoing, the demeanor of the witnesses, and the admissions of Superintendent Coker and Foreman Schmidt, I credit the testimony of employees Allen, Shockley, and Hoyt, and find that Gardner did make the statements and promises hereinabove attributed to him. Based on this testimony and the admissions of Foreman Schmidt and Superintendent Coker, I find that Garnder promised the employees that Respondents would see to it that without a union their benefits would be improved and increased and their wages raised to equal or surpass the wage rates in the About 5 p.m. on December 4, 1967, after the employees had punched out, George Gardner, Respondents' attorney, addressed Respondents' employees and supervisors who were all assembled in the conference room. The meeting lasted about 35 minutes. Manager Poteet introduced Mr. Gardner as Respondents' attorney who was there to talk to them concerning the Union There is no conflict with respect to much of what Gardner said on this occasion Thus, Gardner stated that he had come down from Roanoke to negotiate with the Union but that, after discussing the matter with Mr. Cullen of the old Lumbermen Supply Company, they had decided that the election was not legal, that they were not going to recognize or bargain with the Union, and that they had so notified the Union and the Labor Board at the Fort Worth office. He further stated that there was a possibility that they might eventually have to negotiate with the Union but that it would take some time before that would happen. In reply to an employee's question as to how long it would take before the Union would be recognized and dealt with, Gardner outlined the various steps and procedures involved, culminating in an appeal to the Tenth Circuit Court in Denver, and stated that sometimes it could take as much as 2 or 3 years He then stated that it was immaterial to Huttig whether this plant was union or nonunion, that half of Huttig's plants were union and half nonunion, and that a profit was necessary for this plant to succeed. Gardner also told the employees that Superintendent Coker had called his attention to the fact that the men had lost some overtime pay because the change in ownership took place in the middle of the week and they had not worked 40 hours for either company although they had worked a total of over 40 hours during the entire week. He then announced that although Huttig felt they were not obligated to pay it, he had received an okay from St. Louis on the matter and that they were going to pay it right now. Checks for the overtime pay were at that point distributed to the assembled employees by Manager Poteet. There is some dispute in the testimony with respect to some of the statements made by Gardner during the course of the remainder of his speech. Three witnesses testified for the General Counsel in this respect, William Allen, Andre Shockley, and Melvin Hoyt. The latter two were still in Respondents' employ at the time of the hearing and were testifying under subpoena in the presence of their superiors. The following is, in substance, a composite of their mutually consistent testimony with respect to additional statements made by Gardner during the course of his speech, although not necessarily in the sequence hereinafter set forth. Gardner stated he had in his hand a copy of the union contract of Georgia-Pacific, a competing company in Okla- homa City, and that Huttig Sash and Door Company will equal or do better than the wage rate in that contract. He mentioned that he understood there was an old employee here with 13 years' seniority by the name of Bill Gray who was still receiving $1.50 per hour, and emphasized that that was unheard of in the Huttig organization. He also stated that each Huttig plant had its own vacation plan, and pointed out that he understood that the nonunion Huttig plants had longer vacation periods and more benefits than the union Huttig plants. After stating that he could not promise anything, Gardner promised that he and Schweitzer, assistant to the president of Huttig, would be back the following week to HUTTIG SASH AND DOOR CO. 775 union contract with Georgia-Pacific, a local competing com- pany in the city; that, while each Huttig plant made its own vacation plans, the plans in the nonunion Huttig plants provided for longer vacation periods than those in the union Huttig plants, that the Company would soon review their wages with the view of raising them and that there would be increases for everybody; that Huttig Sash and Door would be adding to the benefits they already had, that without a union the employees would end up with a better deal than what Georgia-Pacific had with a union; that if the employees scratched Huttig's back, Huttig would scratch their back; and that Huttig had to close down the St. Louis plant because there were too many unions and a man did not know what to pick up or do. b. Manager Poteet and wage i ncreases On the afternoon of December 12, 1967, all employees who were present, except salesmen, were again assembled in the conference room. Manager Poteet introduced Mr. Montgomery as an official of Huttig Sash and Door Company Montgomery told the employees that Mr. Schweitzer was unable to be present, as Mr. Gardner had promised in his speech of December 4 He then announced that there would be pay raises for all employees, ranging from 10 to 25 cents an hour, and that Poteet would be talking with each one individually either that day or the next day. About December 15, Poteet began having each employee, individually, summoned to his office where he informed him of the amount of the wage increase and that it was effective retroactively as of December 8. Thus, on this occasion Poteet asked Hoyt, a warehouse employee, if he was now getting $1.70. When Hoyt replied in the affirmative, Poteet stated, "well, we're going to raise you to a $1 85," and told him to keep up the good work. Poteet told Shockley, a driver, that the truckdrivers were getting a little more than the others and that he was getting a 15-cent raise. He told Jackson, who had been employed in the warehouse only since November 15, 1967, that they did not think he deserved a raise at that time because he had not been with the company very long. He then added that because of the good work which Jackson had been doing, Poteet felt they could give him a 10-cent raise. Poteet also told Allen, who first started working for the old Lumbermens Supply Company on October 1, 1967, that the company felt he had not been with the organization long enough to earn a raise but that his work had been good enough so that they decided to give him a 10-cent an hour raise. The findings in this section are based on credited testimony which is either admitted or undisputed. Larry Jackson was hired by Coker on November 15, 1967 During his hiring interview by Coker in the shipping office in the presence of Foreman Schmidt, Coker told Jackson that "the wages here are poor" but that they "had a deal going and the wages were going to get better" and that they "could guarantee" him "more money within 30 days." Although Jackson had been hired as a truckdriver, he was nevertheless assigned to work in the warehouse. Sometime in December when he and Mike Reynolds, another warehouse employee, were together in the warehouse, Jackson asked Warehouse Foreman Schmidt when he would get on the truck, pointing out that he could not make a living in the warehouse. Schmidt replied, in Reynolds' presence, "well, if this thing don't go union I'll guarantee we'll be making more money than the truckdrivers." Schmidt then added that "if it is [Union] , we will probably get our hours cut down." In January 1968, a petition began circulating among the employees in the warehouse to the effect that they "were still backing the Union." On January 8, 1968, when Hoyt, a warehouse employee, was in the shipping office, Schmidt asked him, "I understand they are circulating a petition about the Union?" When Hoyt replied in the affirmative, Schmidt said, "I understand that you didn't sign it." Hoyt answered, "I hadn't." Schmidt then warned that "if it does go union you will lose some of your benefits." That night the Union held a meeting of Respondents' employees at the Teamsters hall. A majority of the employees, including William Allen, attended the meeting. The next day, January 9, when Allen and employee Reynolds were in the glass area of the plant, Schmidt walked up and asked, "well, how did it go last night?" Allen asked, "how did what go?" Schmidt then said, "how did the meeting go last night?" Allen replied, "pretty good." Schmidt then asked, "what did you talk about?" Allen replied, "mainly we talked about who was in support of the Union and finding out how many was in support of the Union." Schmidt then warned, "if the Union comes in, you know that you'll get a cut in salary." When Allen answered "No, sir, I didn't," Schmidt pointed out that the Ford plant was out on strike at this time and that "someone has to pay for that." Later that same day, Schmidt asked Allen, "what do the men have against Mr. Poteet?" Allen replied that the men had been promised wages equal to or better than the rates in the Georgia-Pacific contract and that he himself had only received a 10 cents an hour raise About January 9, 1968, Schmidt asked employee Vinson what he knew about the paper the boys were circulating through the warehouse to the effect that they were still backing the Union Vinson replied that he did not know about it but that he had heard that they were circulating a paper. Schmidt then turned to Coker, who was standing there, and c. Superintendent Coker and Foreman Schmidt said, "they are at it again." Coker replied, " yes, I know. All Carrol Vinson was hired by Coker during the first week in November 1967. During his interview by Coker in the shipping office, Coker stated that the new company, Huttig Sash and Door, was taking over, that the "situation" would "be a lot better," and that the benefits and pay would now be better. He then told Vinson that the boys had voted a union in and asked how Vinson felt about working under a union. Vinson replied that it made no difference to him. When Coker volunteered that "Mr. Lowman had started the Union," Vinson asked "where was Mr. Lowman at now?" Coker replied that "they had to let him go." they are going to do is freeze everything where they won't get no raises." Vinson later found out that the paper was to show that the employees were still backing the Union and that the same evening, after the paper was signed, there was a meeting at the union hall. The next day, which was the day after the union meeting, Schmidt asked Vinson, "What about this meeting they had?" Vinson replied that he did not know. Schmidt then warned, "Well, they're going full steam ahead and that when they do get the Union in they're just going to be getting lower wages from what they are getting now." About January 26, 1968, Larry Jackson gave an affidavit to a Board agent in the Union Attorney's office. The next day, he 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and employee Reynolds and Pringle were in the coffee room discussing their wages. Schmidt came over and joined in the conversation. Schmidt said, "well, let me tell you this, if this thing goes Union your hours will be cut and you figure the wages that you will be making as Union and the wages now and you will be making a little bit more now, but your hours would be cut from what you are making now." Schmidt then asked Jackson if he was at the meeting last night. The findings in this section are based on the credited testimony, to a large extent undisputed, of employees Vinson, Jackson, Hoyt and Allen. Schmidt admitted that he "possibly" could have spoken to the employees about the Union but could only recall that his conversations were, "Such as speaking, do you think it will be better or worse or what do you think would take its place and what the outcome would be." Schmidt was asked by Respondents' counsel if he did "question or interrogate any employee regarding his union membership, his activity or desires in this matter?" In response, Schmidt testified, "I'd have to answer the same as the one before. I possibly could. I mean, just in a general sense. Just carried on a conversation with them." Coker merely answered in the negative in response to Respondents' counsel's leading questions, framed directly from the allegations in the complaint, relating to interrogation of and threats to employ- ees. I do not credit the testimony of Schmidt and Coker insofar as it may be regarded as a denial of the credited employees' testimony hereinabove set forth. 2. Concluding findings Attorney Gardner admitted that he was attorney of record for Respondents at all times material herein. As such, he was Respondents' agent for whose conduct Respondents are responsible.7 Respondents further admit that Manager Poteet, Superintendent Coker and Foreman Schmidt are at all times material herein supervisors within the meaning of the Act. Hence, Respondents are also liable for their conduct. I therefore find that Respondents have interfered with, re- strained, and coerced their employees in the exercise of their guaranteed rights in violation of Section 8(aXl) of the Act by the previously found conduct of the above-named individuals in the following respects. (1) By interrogating employees in the context and under the circumstances previously detailed. See, e.g., Avondale Shipyard, Inc. v. N.L.R.B., 391 F.2d 203 (C.A. 5), enfg 162 NLRB 421, Serv-Air, Inc. v. N.L.R.B., 401 F.2d 363, (C.A. 10), enfg. 161 NLRB 1369 (TXD). This includes the conduct of: Coker in questioning employee Vinson about his union sympathies during his hiring interview in the first week of November 1967; and Schmidt in (a) questioning Hoyt on January 8, 1968, about a petition which the employees were circulating in the warehouse to declare their continued support of the Union and as to whether it was true that Hoyt had not signed the petition, (b) interrogating Allen about January 9, 1968, in the presence of another employee, about a meeting of the Union held the preceding night and as to what was said at that meeting, (c) interrogating Vinson about the same time on one 7See, e.g., Fennel 's Auto & Body Works, Inc., 171 NLRB No 10, Valley Gold Daines, Inc , 152 NLRB 1471 , and Ntskayuna Consumers Cooperative, Inc., 155 NLRB 170, 180 , enfd. 376 F .2d 260 (C.A 2). occasion concerning the circulation of the employee petition to be taken to the Union hall declaring those still backing the Union, and on another occasion interrogating him about the union meeting held the preceding night, and (d) interrogating Jackson about his attendance at a meeting in the Union Attorney's office where affidavits were taken by a Board agent. (2) By promising additional economic benefits, including wage increases and longer vacation periods, to refrain from continuing to seek and to support the Union as their bargaining representative. This includes the conduct of Schmidt in telling Jackson in December 1967, in the presence of another employee, that "if this thing don't go Union, I guarantee we'll [referring to the warehouse employ- ees] be making more money than the truckdrivers", and Attorney Gardner in telling all the assembled employees in his speech on December 4, 1967, that Respondents had decided not to recognize or negotiate with the Union but that (a) Respondents would improve and increase their benefits and raise their wages to equal or surpass the rates in the contract which the Union had with Georgia-Pacific, a local competing company, (b) Respondents would soon review all their wages and there would be increases for everybody, and (c) that he understood that the vacation plans in the nonunion Huttig plants provided for longer vacation periods than the plans in the union Huttig plants. I find that the latter statement, under all the circumstances, reasonably tended to create the impression or belief among the employees that their vacation period would be increased without the Union in the plant. I find that the foregoing promises of additional benefits, coming as they did immediately after Gardner announced Respondents' decision not to recognize or deal with the Union even if it took 2 or 3 years to process this proceeding up to and through the Tenth Circuit Court of Appeals and after the distribution of the overtime paychecks which Gardner an- nounced Respondents were not obligated to pay, were clearly intended and understood as inducements to the employees to refrain from continuing to seek and to support the Union as their bargaining representative. Any doubts in this respect were clearly dispelled by Gardner's warning that the Company would not be forced into anything but that if "you scratch Huttig's back, (and) they will scratch yours." That the employees got the message is further demonstrated by Coker's admission, in response to Gardner's question on this very point, that Gardner stated the employees "would end up with a better deal than what Georgia-Pacific had with the Union." Under the circumstances disclosed by this record, I find that the coercive nature and effect of Gardner's promises were neither neutralized nor dissipated by his additional comments that it made no difference to Huttig whether or not the plant was union and that half of Huttig's plants were union. (3) By threats of economic reprisals, including a cut in wages and hours of work, if the Union became the employees' recognized bargaining representative. This includes the conduct of: Gardner in telling the assembled employees in his speech on December 4, 1967, that Huttig had to close down the St. Louis plant because there was too many unions there. I find that this statement reasonably tended to convey to the employees a threat of the possible closing of the plant if the Union became the recognized bargaining representative; Schmidt in (a) telling Jackson in December 1967, in the HUTTIG SASH AND DOOR CO. presence of another employee, that if the plant goes union "we will probably get our hour cut down," (b) telling Hoyt on January 8, 1968, that "if it does go union, you will lose some of your benefits," (c) telling Allen about the same time, in the presence of another employee, that "if the Union comes in, you know that you'll get a cut in salary," (d) telling Vinson about the same time that "when they do get the Union in, they're just going to be getting lower wages from what they are getting now," and (e) telling Jackson on January 26, 1968, in the presence of two other employees, that "if this thing goes union, your hours will be cut and you will be making less money"; and Coker in stating to Schmidt on January 9, 1968, in the presence of employee Vinson, that all the employees are going to accomplish by circulating the petition that they were still backing the Union was to "freeze everything where they won't get no raises." (4) By announcing and granting wage increases about the middle of December 1967, under the circumstances and in the context previously detailed. This involves the conduct of: Montgomery, an admitted official of Respondents, in announcing to the assembled employees on December 12, 1967, pay raises ranging from 10 to 25 cents an hour, thereby fulfilling Gardner's promises in his speech on December 4; and Poteet in calling the employees into his office, individually, a few days later and informing them, including those who had been employed but a short period, of the amount of their raise and that it was retroactive to December 8, 1967. Respondents' effort to create the impression that the wage increases were automatic for employees completing the proba- tionary period fell flat on its face Schweitzer testified that when he interviewed the employees on October 30 and 31, he told some employees that they were being hired on a trial basis at the old rate but that necessary allowances would be made as the trial period rolls along. I do not credit this testimony as it is refuted by the overwhelming weight of the evidence. No witness corroborated Schweitzer in this respect, on the other hand, witnesses for both the General Counsel and the Respondents, including Poteet who was present at many of these interviews, affirmatively testified that neither the word "probationary" nor "temporary" was used by Schweitzer. Significant in this respect is the testimony of Respondents' witness Tarver, despite the fact that she was tipped off to the desired answer by Gardner's leading question to which an objection was sustained. In addition, the testimony was undisputed that nothing was said about a "probationary" period when Montgomery announced the wage increases on December 12, 1967, and when Poteet a few days later informed the employees individually of the amount of their retroactive wage increase. Viewed in the light of Gardner's previous promises and his comparisons with the rates in the contract which the Union had with Georgia-Pacific, as previously detailed, I am con- vinced and find that the raises were intended, and the employees could reasonably infer that they were granted, as inducements to refrain from continuing to seek and to support the Union as their bargaining representative. Respondents' unsuccessful effort to assert a transparently false reason for the raises verifies and strengthens the soundness of this finding. That the announcement and grant of the wage increases under these circumstances constitute a violation of Section 8(a)(1) of the Act, independent of its unlawful aspect based on Respond- ents' unilateral conduct, is now well established N.L.R.B. v. 777 Exchange Parts, 375 U.S. 405, J. C. Penney Co., Inc. v. N.L.R.B., 384 F.2d 479, 484-485 (C A. 10), and Kellwood Company, Southern Division, 170 NLRB No. 184. D. Discrimination in Hire and Tenure of Lowman's Employment Charles Lowman was hired by Superintendent Coker and began working for the predecessor Lumbermens Supply Company as a truckdriver in June 1967 His employment was terminated by Manager Poteet in the week of October 23, 1967. On October 31, 1967, Schweitzer interviewed Lowman and refused to employ him for Respondents. Lowman was 44 years old at the time of the instant hearing. 1. Union activities of Lowman8 In August 1967, while he was on a delivery trip to Shawnee, Oklahoma, Lowman talked to a tmckdriver employed by Georgia-Pacific, a local competing company which had a contract with the Union. During the course of their talk, the truckdriver discussed the Union with Lowman, told him about the union benefits, and gave him the name of Teamsters Union Representative Hyding. When he returned to the plant, Lowman talked about a umon to some of the other employees, and the consensus was that a union could improve their working conditions. Lowman then contacted Union Represent- ative Hyding and inquired about the procedure for getting a union in the plant. Hyding advised Lowman to get as many employees as he could to attend a meeting. Lowman talked to the employees about attending an organizational meeting and then arranged such a meeting after work. At this meeting about the middle of August, Hyding explained the benefits the employees would gain from union representation and had a copy of the Georgia-Pacific union contract. Lowman and some other employees signed union authorization cards at this meeting. Lowman also took some blank authorization cards back to the plant where he distributed them to other employees, collected the signed cards from the employees, and turned them in to the secretary at the union hall. As previously noted, the Union was unanimously designated as bargaining representative in a Board election and was certified by the Board as such representative on October 6, 1967. At a umon meeting held the following week, Lowman was elected job steward and a member of the negotiating committee. The next day, Hyding informed one of the officers of Respondents' predecessor of the positions to which Low- man had been elected. Superintendent Coker regarded Low- man as responsible for having brought the Union in the plant and referred to him as a union "leader" and "troublemaker." 2. Employment termination of Lowman As previously found, Lowman received in the mail from Respondents' predecessor a letter, dated October 23, 1967, and signed by Manager Poteet, which stated- Effective October 31, 1967, we are quitting business and will have no need for your services. We will pay you for 48 hours this week. 8 The finding in this section is based on credited testimony which is wholly undisputed. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD His last day of work was on Friday, October 27, 1967. Lowman was the only employee terminated by Respondents' predecessor prior to October 31, the last day of its operation. The only reason which Poteet admittedly ever gave Lowman for his termination was that the business was being sold to a new company. Poteet testified that Lowman was terminated and not recommended by him for rehire by Respondent Huttig because of alleged customer complaints against Lowman. Poteet's testimony relating to three alleged customer complaints is, in substance, as follows- The first alleged complaint which Poteet investigated occurred about a month before Lowman's termi- nation. It involved the Banks Lumber Company in Enid, Oklahoma, and related to the fact that Lowman had unloaded an order during the noon hour when the yard help was absent instead of waiting for their return from lunch, with the result that the merchandise was not placed in the location desired by the customer. Banks had expressed a preference not to have Lowman make any more deliveries. The second alleged complaint involved a customer in Jones, Oklahoma. Although Poteet investigated the complaint and talked to the customer's manager, he did not know or remember the details nor did he know which of these two alleged complaints occurred first. The third alleged complaint involved a customer in McAlester and was reported to Poteet by a salesman. Poteet did not investigate and also could not recall the nature of this complaint. Poteet admitted in his testimony that at no time did he ever so much as mention any of these alleged complaints to Lowman. He admitted that there was no criticism of Low- man's work in any other respect. Contrary to his further testimony that drivers were permitted to wait at a customer's place without any maximum time limit and were not criticized for the amount of time spent, employee Allen credibly testified without contradiction that he was reprimanded by Coker on one occasion for spending too much time unloading an order at a customer's yard. Lowman testified that there had been only two customer complaints against him during his entire employment. His testimony with respect thereto is in substance as follows- With respect to the first one, Coker told Lowman that he had a complaint from Banks Lumber Company that Lowman had unloaded an order during the noon hour when the customer's employees were gone for lunch. Lowman there- upon explained that if he had waited, it would have cost him an hour's time and this waiting time is reflected on the clock in the truck, called a tachometer. Coker replied that the customer should expect the order to be unloaded and left "when they close up for the lunch hour." A few days later, after Coker had read the clock tape, he told Lowman that he was a new man and that in time he would learn to leave the plant so that his arrival at Banks would not be at lunch time. Thereafter, Lowman delivered orders to Banks several times without further incident. The other incident involved a customer in Jones. When Lowman unload an order on this occasion, the yard manager made a comment adversely to the union activity at Lumber- mens Lowman thereupon stated that he favored unionism and that that was the only way "a man could get a working wage." When this was reported to Lumbermens, Coker told Lowman that "he didn't want us to talk about the Union while we was out around customers," that "it wasn't right," and that "it might cause some hard feelings between Lumbermens and them." Lowman's version with respect to the above incidents stands uncontradicted. Although Coker testified as a witness for Respondents, he did not testify with respect to Lowman's work record, any customer complaints, or any other circum- stances of Lowman's employment Nor did any customers testify with respect to any alleged complaints. Under all the circumstances, including Poteet's admission that he could not recall the nature of and did not investigate the alleged third customer complaint, I credit Lowman's testimony that there were only two customer complaints and his version relating to them. 3 Refusal to reemploy Lowman Lowman received by special delivery the same notice from Poteet which he had distributed to all Lumbermens' em- ployees, stating that "a representative of Huttig Sash and Door Company will be taking applications for employment Monday and Tuesday October 30 and 31" at the plant. Pursuant to this notice, Lowman arrived at the plant on October 31 and filled out an application in the waiting room for a truckdriver's position. Schweitzer and Poteet then went into the office with Lowman's application while Lowman remained in the waiting room. Lowman was then called into the office where Schweit- zer and Poteet were present. They were looking at his application. Schweitzer asked if he ever drank, Lowman replied that he did and that he had been intoxicated twice. He could not remember if Schweitzer asked about Lowman's church. Nothing was said about any customer complaints or about his handling of freight, or about wages, or about his work record either with Lumbermens or with prior employers. Schweitzer then stated that the truckdriver's position had been filled, that they were bringing in about 13 employees to fill the vacancies, and that if Lowman was out of work in the spring when business picked up Schweitzer would consider him again Lowman then asked Poteet why he had been laid off at Lumbermens. The only reason Poteet gave was that the Company had been sold and was under new management.9 Poteet and Schweitzer testified that before receiving Low- man's application, Poteet had recommended to Schweitzer 9 The findings in this paragraph are based on the credited testimony of Lowman who impressed me as a sincere , candid and trustworthy witness. The only significant respect in which Schweitzer 's version differs, relates to the reason he gave for not hiring Lowman. Schweitzer testified that the reason he gave Lowman for not hiring him was "that he had a poor work record," that "we had ample employees," and that "due to a poor work record there was no opportunity for him." However, the testimony of Poteet, who admittedly was present during the entire interview , not only does not refute Lowman's version but tends to corroborate it and to refute Schweitzer's version. Thus, Poteet testified Lowman was told "that we couldn't hire him at the time but later on if we decided to hire him we would get in touch with him," that "I do not recall him [Schweitzer] telling him [Lowman] that "he had a poor work record," and that "I do not recall" what reason Schweitzer gave for not hiring him at that time. Poteet did not deny Lowman's testimony relating to Poteet's reason for laying off Lowman. Upon consideration of the foregoing and the demeanor of the witnesses, I do not credit Schweitzer's contrary version. HUTTIG SASH AND DOOR CO. 779 against hiring Lowman because of customer complaints on him. Schweitzer admitted that the customer complaints were not discussed "to any noticeable degree." Poteet further testified that Coker had made the same recommendations for the same reason. However Coker did not corroborate Poteet in this respect. In any event, Schweitzer admitted that it was his own independent decision not to hire Lowman and that his decision in that regard "was based purely on the interview and the application." Schweitzer testified that the reason he did not hire Lowman was because his application disclosed, as Schweitzer's notations thereon state, a prior "poor work record" and because "drinking is [a] problem to him." The application, under the topic heading "Former Employers," requests the applicant to list the last four employers beginning with the last one and including the period of employment, the salary, position and reason for leaving. Lowman's application lists his first period of employment in Eureka, California, as a security guard at $1.25 per hour. It discloses that his next position was as a truckdriver with Clinton Logging Company in Glendale, California, at $2.25 per hour, that he left this position because he moved back from California to Oklahoma City, that his third position was with McKesson & Robbins in Oklahoma City as a truckdriver at $1.85 per hour, that he left this position because "they quit operating tractor and trailer on deliveries," and that his last position was with Respondents' predecessor as a truckdnver at $1.50 per hour. Schweitzer testified that what he meant by a prior "poor work record" was that the jobs listed on his application show a "decel- erating" rather than an increasing "wage structure." Lowman's second job shows an increase in wages but his last two jobs show a decrease. Schweitzer admitted that wages are higher in certain areas in California than in Oklahoma City and that it would have a bearing on the decelerating wage if a man moved from a high income area to a low income area. However, he further admitted that he neither considered the geographical area nor the prevailing wage levels in these areas in Lowman's case. That the wage structure was not a relevant consideration in the decision not to hire Lowman is demonstrated by the absence of a place for wage information on the applications of the latest employees hired by Respondents and by the absence of the wage information on numerous applications of old employees who were rehired by Schweitzer. Schweitzer also testified that Lowman's application shows that he had too many jobs and was "floating" because "there had been periods between jobs that he had no work." However, his application does not show any extensive periods when he was out of work and in each case discloses a valid reason for the change in jobs, reasons to which Schweitzer gave no consideration. Moreover, according to the credited and uncontradicted testimony of Allen, he was hired, despite Schweitzer's comment during the hiring interview that his application shows that "he had quite a few jobs." With respect to the alleged drinking "problem," Schweitzer testified that during the interview Lowman "volunteered the information" that "there had been a couple of times that he had been intoxicated and that, to the best of my knowledge, was it." He further testified that he did not inquire as to the place and circumstances relating to his intoxication on these two occasions and did not tell Lowman that he considered his dunking a problem, a comment which would have alerted Lowman to the need for an explanation of these incidents. Poteet admitted that he never knew Lowman had a dunking problem. Moreover Schweitzer admitted that three other employees hired by him told him in their interview that they had been drunk and had had drinking problems. Thus, Schweitzer knew that DeWitt Neeley had been jailed for drunkenness, that Louis Lindsey, unlike Lowman, had a DWI (driving while intoxicated) conviction in his record, and that a third employee had been drunk twice. Finally, at no time did Respondents refute the Union's accusations, made in President Pannell's telephone conversation with Attorney Gardner on November 20, 1967, and in his letter to Gardner on November 27, 1967, that Respondents were contending that "due to a DWI record they no longer desire his [Lowman's] services" and Pannell's explanation that investigation disclosed no such record to exist. Nor is there any merit to the alleged reason given by Schweitzer that driving positions were filled. Respondents' own records show that employees were hired by Schweitzer although their applications requested the position of driver and that in any event three new employees were in fact hired as drivers within the next month although no drivers had been terminated. 4. Concluding findings In the early part of October 1967, Superintendent Coker told employee Melvin Hoyt during a discussion about the Union that before the union election most of the employees were "pretty well satisfied with their wages and conditions" of employment, but that after the Union had been voted in "it seemed like everyone was upset," and that he (Coker) thought that Lowman "was the one that had given the idea to everyone about having an election." In a further conversation about 3 or 4 days later, Coker told Hoyt that it was possible that the Union had planted Lowman as an employee for the Company. Hoyt replied that he did not know whether or not that was true. A few days later, Coker told Hoyt that he felt that another truckdriver by the name of Mashburn and Lowman "had been instrumental in stirring up the Union movement" but that he thought that "Charles [Lowman] was a leader and trouble maker." A few days after Lowman's termination, Hyde said to Coker that he understood that Lowman "has been let go." Coker replied in the affirmative. When Hoyt asked for the reason, Coker replied it was because Poteet "thought that was the best thing to do." Coker then added, "I'm afraid I'll have to hire him back." When Hyde asked why Coker felt that way, Coker replied, "I think maybe the Union will force me to." After Respondent Huttig had taken over, Coker told Carrol Vinson during his hiring interview in the first week of November 1967, that the Union had been voted in and that "Lowman had started the Union." When Vinson asked "where was Mr. Lowman at now," Coker replied that "they had to let him go."10 Poteet admitted that he had informed Schweitzer prior to the execution of the contract of sale that the Union had won an election in the plant. Poteet and Schweitzer both admitted 10 The findings in this paragraph are based on the credited and undenied testimony of Hoyt and Vinson. Although Coker testified as a witness for Respondents , he did not deny having made the statements set forth in the text. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Poteet discussed Lowman's status with Schweitzer before Lowman had submitted his application. Both Poteet and Coker recommended to Schweitzer against reemploying him. As previously found, after Lowman submitted his application on October 31, he was told to remain in the waiting room while Poteet and Schweitzer went into the office with Lowman's application. Lowman was the only employee who was terminated by Respondents' predecessor after the execution of the contract of sale on October 20 but before October 31, the last day that the plant was operated by Respondents' predecessor. Lowman was the only employee of Respondents' predecessor who was not reemployed by Respondents.' 1 Upon consideration of all the foregoing and the entire record as a whole, I am convinced and find (1) that Poteet seized upon the business termination of the old Lumbermens Supply Company as presenting a suitable opportunity for Lowman's termination; (2) that customer complaints, which were asserted as the reason for his termination for the first time at the instant hearing, were advanced as palpable pretexts and afterthoughts to cloak a discriminatory motivation, and (3) that the true reason for his termination was his union leadership, activity, and responsibility for bringing the Union into the plant. I am further convinced and find, contrary to the denials of Poteet and Schweitzer, that Poteet or Coker informed Schweitzer of Lowman's union role and activity prior to Schweitzer's consideration of Lowman's application. Upon consideration of the transparently false reasons advanced by Schweitzer for the refusal to hire Lowman, as is readily apparent from the previously detailed analysis, and in view of Respondents' announced refusal to recognize and deal with the Union even if it were to involve 2 or 3 years of litigation and the conduct in which Respondent's supervisors and agents engaged to induce the employees to refrain from continuing to seek and to support the Union as their bargaining representa- tive, including promises of economic benefits, wage increases, and threats of econonuc reprisals, all as previously found, I am further convinced and find (1) that the reasons asserted at the hearing for the refusal to hire Lowman were also advanced as pretexts to cloak a discriminatory motivation, and (2) that the true reason was Schweitzer's desire to eliminate from Respond- ents' work force the most active union proponent and the person regarded as being a union leader and "trouble maker" who was responsible for bringing the Union in. By such conduct, Respondents discriminated with respect to the hire and tenure of employment of Charles Lowman, thereby discouraging membership in the Union in violation of Section 8(a)(3) and (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 their operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. I I Eaton and Rice, warehousemen , were not rehired until several months later because of a slow period in Respondents ' business. Moreover, one of them did not even desire immediate reemployment. CONCLUSIONS OF LAW 1. All employees of Respondents in the Oklahoma City, Oklahoma, plant, including warehousemen, mill workers and truckdrivers but excluding salesmen, office employees, guards, watchmen and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times on and after November 1967, Drivers, Chauffeurs and Helpers Local Union 886 affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, a labor organization, has been, and still is, the exclusive representative of all the employees within said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 3. By refusing at all times on and after December 4, 1967, to recognize and to meet and negotiate with the above-named labor organization as the exclusive representative in the above-described appropriate unit, and by unilaterally, without prior notice to or consultation with said Union, granting wage increases to the unit employees about the middle of December 1967, Respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 4. By refusing to hire Charles Lowman on October 31, 1967, Respondents have discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the above-named labor organization, and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing conduct and by the conduct detailed in section III, C, 2, supra, Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed by Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(l) 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. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondents refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will recommend that, upon request, Respondents recognize and bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondents violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire Charles Lowman on October 31, 1967, I will recommend that Respondents offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result HUTTIG SASH AND DOOR CO. of Respondents ' discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from October 31 , 1967, to the date of Respondents' offer of reinstatement, less his net earnings 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 Because of the character and scope of the unfair labor practices found to have been engaged in by Respondents, I will recommend that Respondents cease and desist from in any other manner mterfenng with, restraining , and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following- RECOMMENDED ORDER Respondents, Huttig Sash and Door Company, HSD Cor- poration and Lumbermen's Supply Company, Oklahoma City, Oklahoma, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize, meet and bargain collectively with Drivers, Chauffeurs and Helpers Local Union 886 affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive representative of their employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All employees of Respondents in the Oklahoma City, Oklahoma, plant, including warehousemen, mill workers and truckdrivers but excluding salesmen, office employees, guards, watchmen and supervisors as defined in the Act. (b) Discouraging membership in the above-named or any other Union by discriminatorily refusing to hire any employees or by discriminating in any other manner with respect to their hire and tenure of employment or any term or condition of employment. (c) Interrogating employees with respect to their union sympathies, their knowledge and support of any union petition, their attendance at union meetings and as to what was said at such meetings, their attendance at meetings where affidavits were taken by Board agents, or in any other manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(l) of the Act (d) Promising employees wage increases, longer vacation periods, or any other economic benefits, to refrain from continuing to seek and to support the above-named or any other Union as their bargaining representative. (e) Threatening employees with reduction in wages and hours of work, no raises, the possible closing of the plant, or any other economic reprisals, if the above-named or any other Union became their recognized bargaining representative. 12 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 781 (f) Announcing and granting wage increases to induce the employees to refrain from continuing to seek and to support the above-named or any other Union as their bargaining representative. (g) Making unilateral changes in wages, rates of pay, or other terms or conditions of employment of their employees without first notifying and consulting with the above-named Union or any other exclusive collective-bargaining representa- tive in the above-found appropriate unit. (h) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by the provisos in Section 8(aX3) of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Upon request, recognize and bargain collectively with the above-named labor organization as the exclusive represent- ative of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Offer to Charles Lowman immediate and full reinstate- ment to a truckdnving or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the refusal to hire him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify Charles Lowman, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (d) 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, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (e) Post at their place of business in Oklahoma City, Oklahoma, copies of the attached notice marked "Appendix A."12 Copies of said notice on forms to be provided by the Regional Director for Region 16, after being duly signed by Respondents' representative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notice to Respondents' employees are cus- tomarily posted. Reasonable steps shall be taken by Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. 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." 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondents have taken to comply herewith. 13 13 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read , "Notify the Regional Director for Region 16, in writing , within 10 days from the date of this Order , what steps Respondents have taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to hire any employees because of their union activities or for antiunion reasons. WE WILL NOT promise to give, or announce, or grant, wage increases, longer vacation periods, or any other economic benefits, to induce our employees to refrain from having a union as their bargaining representative. WE WILL NOT threaten employees with cuts in wages or hours of work or freezing of wages, or any other economic reprisals, if a union became their recognized bargaining representative. WE WILL NOT make unilatenal changes in wages and working conditions without first notifying and consulting with our employees' exclusive collective-bargaining repre- sentative. WE WILL NOT ask employees about their union sympa- thies, about attendance at union meetings, about what was said or done at union meetings, or about meetings attended by Board agents who took affidavits from employees. WE WILL give back to Charles Lowman his truckdriving job and seniority, and will make up the pay he lost and also pay him 6 percent interest. WE WILL recognize and bargain with Drivers, Chauffeurs and Helpers Local Union 886, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in our Oklahoma City, Oklahoma, plant, includ- ing warehousemen, mill workers and truckdnvers but excluding salesmen, office employees, guards, watchmen and supervisors, and WE WILL sign an agreement including any understanding reached. The National Labor Relations Act gives all employees these rights To organize themselves To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection. To refuse to do any or all of these things. WE WILL NOT interfere with any of these rights. Dated HUTTIG SASH AND DOOR COMPANY, HSD CORPORATION AND LUMBERMEN'S SUPPLY COMPANY (Employer) By (Representative) (Title) Note: We will notify the above-named employee, if pres- ently serving in the Armed Forces of the United States, of his 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 or compliance with its provisions, they may communicate di- rectly with the Board's Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2934.