Crescent Constrution Co. of Shreveport

CRESCENT CONSTRUCTION CO. OF SHREVEPORT Richard E. McMahon and C . D. White, Jr., d/b/a Crescent Construction Company of Shreveport and Communications Workers of America, AFL-CIO. Cases 15-CA-3068 and 15-CA-3165 June 27, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 28, 1968, Trial Examiner Leo F. Lightner 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that the Respondent had not engaged in certain other unfair labor practices al- leged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respon- dent filed exceptions to the 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 these cases 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 the entire record in the case, and hereby adopts the findings,' conclusions,3 and recommendations of the Trial Examiner. ' Respondent has excepted to the Trial Examiner's rejection in his fn 3 of certain exhibits which it contends would establish that the Union no longer represents a majority of the employees in the bargaining unit The proposed stipulation, although rejected, is included among the exhibits We find it unnecessary to determine whether the Trial Examiner's ruling in this respect was proper, inasmuch as we have examined the proffered facts and find them immaterial to the issues involved herein in light of our findings as to the widespread violations of the Act and the nature of Respondent's un- lawful refusal to bargain z In concluding that White's speeches violated Sec 8(a)( 1) of the Act, we find it unnecessary to pass upon the Trial Examiner's conclusions con- cerning the statements about replacement of strikers And in adopting the Trial Examiner's finding that Respondent failed to bargain in good faith, we do not rely on Respondent's action in November 1966 in filing a petition to revoke certification challenging the status of the Union as bargaining representative ' The Trial Examiner inadvertently stated that during the June 20 bar- gaining session, Stanford, Union counsel, related that he "did come" from Atlanta to engage in futile bargaining, whereas Stanford stated that he did not come from Atlanta to engage in futile bargaining 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- 172 NLRB No. 80 569 mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Richard E. McMahon and C. D. White, Jr., d/b/a Crescent Construction Company of Shreveport, Shreveport, Louisiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Add the following to paragraph 1(d) of the Trial Examiner's Recommended Order and the fifth in- dented paragraph of the attached Appendix. except to the extent that such rights may be affected by the proviso in Section 8(a)(3) of the Act. IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner : This proceed- ing was heard before me in Shreveport, Louisiana, on November 6, 7, 8, and 9 , 1967, on the con- solidated complaint of General Counsel and the answer of Richard E . McMahon and C. D. White, Jr., d/b/a Crescent Construction Company of Shreveport, herein called the Respondent.' The consolidated complaint contains allegations of violations of Sections 8(a)(5), (3 ), and (1) and 2(6) and ( 7) of the Labor Management Relations Act, 1947, as amended , 61 Stat . 136, herein called the Act . The parties waived oral argument and briefs filed by the General Counsel , Respondent, and Charging Party, have been carefully con- sidered.' Upon the entire record ,' and from my observa- tion of the witnesses, I make the following: A charge was filed on April 27, 1967, in Case 15-CA-3068, and amended on July 27, 1967 A charge was filed on September 18, 1967, in Case 15-CA-3165 A consolidated complaint was issued on October 16, 1967 The parties are commended for the excellence and helpfulness of these briefs in sharpening the issues, and for helpful citations During the hearing, to correctly reflect the identity of individuals, in the complaint and transcript, the names of the Charles Grice and Roy Emerson were corrected to Charles Guice and Ray Emmons At the conclusion of the hearing, the record was left open for the submission of a stipulation, subject to determination of relevancy and materiality, indicating the number of employees in the unit, immediately prior to the June 8, 1967, strike, the number, dates of employment, or termination of employees, em- ployed during the strike, who performed the work normally performed by the unit employees Subsequently, five documents have been received, marked for identification as TX Exhs 1(a) to (e), respectively, (a) a copy of a letter from Respondent's counsel to Charging Party's counsel, dated November 17, (b) a copy of a letter from Charging Party's counsel to Respondent's counsel, dated November 21, (c) a copy of a letter from Respondent's counsel to Charging Party's counsel, dated November 28, (d) a copy of a letter from Charging Party's counsel to the Trial Examiner, dated December 20, and (e) a stipulation, with attachments, dated November 17, signed only by General Counsel and Respondent's counsel, all dates being 1967 Absent concurrence of the Charging Party, the docu- ments are rejected However, the documents have been placed in the file as rejected exhibits 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a partnership, owned by Richard E. McMahon and C. D. White, Jr., maintaining its principal office and place of business in Shreveport, Louisiana, is engaged in the construction industry.' During the 12 months preceding the issuance of the complaint, a representative period, Respondent performed services for Southern Bell Telephone and Telegraph Company valued in excess of $250,000, and said telephone company purchased and received supplies and materials within the State of Louisiana, from points directly outside the State of Louisiana, of a value in excess of $50,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Communications Workers of America, AFL-CIO, herein called the Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Issues The principle issues raised by the pleadings and litigated at the hearing are whether the Respon- dent: (a) interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1), by interrogation, threats, promises of benefit, or granting of benefits, creating the impres- sion of surveillance, and other coercive conduct, as more fully set forth in the complaint, which con- tains 47 separate specifications of misconduct by White, a partner, Superintendent Hay, Foremen Guice and Juchartz, Emmons, superintendent at New Orleans, or by Harlan or Caldwell, alleged agents, on various dates between November 1966 and September 1967, as more fully set forth infra; or (b) refused to bargain collectively in good faith with the Union as the exclusive collective-bargain- ing representative, commencing November 1, 1966, and on various dates thereafter, by entering bar- gaining with a fixed and inflexible position, and thereafter engaging in conduct inconsistent with good-faith bargaining, allegedly violative of the provisions of Section 8(a)(5) and (1) of the Act, as more fully set forth, infra; or (c) whether the refusal of Respondent to reemploy Eugene Lewis and Robert Wallace, on or about August 21, 1967, at the termination of a strike, and their discharge, thereafter, was discriminatorily motivated, in con- travention of the provisions of Section 8(a)(3) and (1) of the Act. A subsidiary question is whether a strike, which commenced on June 9, 1967, and ter- minated on August 21, 1967, was an unfair labor practice strike. Respondent denies the commission of any unfair labor practice. Affirmatively, Respondent asserts it was the Union which adopted fixed and inflexible positions and failed to bargain in good faith. Respondent acknowledged, in its answer, that it made no offer of a wage increase, that it urged that it be permitted to continue the existing practice of granting merit increases, and, after the expiration of the certification year, which terminated July 1, it did grant a 20-cent per hour wage increase to em- ployees in the unit on approximately September 2, 1967, asserting a belief that the Union no longer represented a majority in the bargaining unit. Respondent's defense, to its admitted failure to reinstate Lewis and Wallace, is asserted to be by reason of violence during the period of the strike, accordingly, the discharges were asserted as being for cause. Supervisory Personnel and Agents It is undisputed that C. D. White, Jr., a partner, and William C. Hay, superintendent, are super- visors within the meaning of Section 2(11) of the Act. At the outset of the hearing, Respondent acknowledged that Charles Guice and Charles Juchartz are working foremen, that each has effec- tively recommended the hiring and firing of em- ployees, and that they were excluded from the bar- gaining unit. Accordingly, I find they are super- visors within the meaning of Section 2(11) of the Act. Ray Emmons is superintendent at the Crescent Construction Company of New Orleans, holding the position equivalent to Superintendent Hay, at Shreveport. The events recited, in support of the al- legations concerning Emmons, occurred at Franklinton, Louisiana, during an emergency caused by a hurricane, and, as more fully described, infra, Franklinton is normally not within the ju- risdiction of either operation. I find, for reasons ex- plicated, infra, that Emmons was acting in a super- visory capacity within the meaning of Section 2(11) of the Act, in February 1967. It is undisputed that W. O. Harlan is not em- ployed by Respondent. Harlan, who did not appear as a witness, was identified by White as a plant con- tract supervisor for The Southern Bell Telephone Company, at Shreveport. White asserted that Har- lan's duties, insofar as they relate to Respondent's operation, are in the nature of quality control, to The same individuals are also the sole owners of Crescent Construction Company of New Orleans, a separate partnership While we are primarily concerned herein with Respondent , some subsidiary questions , involving an employee of this separate partnership , Emmons, are considered infra, under supervisory personnel CRESCENT CONSTRUCTION CO. OF SHREVEPORT 571 see that cables are buried deep enough, that poles are set correctly, and that general specifications are followed in the performance and manner of Respondent's work. White asserted that Harlan does direct Respondent's supervisors as to what is to be done, in the nature of production and in the nature of scheduling of jobs. White acknowledged that Harlan addresses criticisms, comments, and suggestions, regarding the quality of the work per- formed, to Respondent's foremen and superinten- dent. On occasions, Harlan did direct Respondent's superintendent and foremen to send, or not to send, specified employees of Respondent on a particular job.5 Accordingly, for the reasons set forth in the margin, I find that Harlan was an agent of the Respondent, within the meaning of Section 2(13) of the Act.6 The complaint alleges, and General Counsel urges, that Bobby Caldwell, an employee, was also an agent of Respondent. For reasons explicated, in- fra, I find Caldwell's alleged agency limited to a sin- gle assignment given to him by Superintendent Hay. Background and Sequence of Events There is no dispute as to the background facts and sequence of events set forth herein. On May 26, 1966, the Union filed a petition for election, Case 15-RC-3398; on June 8, 1966, Respondent and the Union entered into a stipula- tion for certification on consent election; on June 23, 1966, an election was held, there were 32 eligi- ble voters, and a tabulation of the ballots revealed 22 votes for and 10 against the petitioner; on July 1, 1966, the Regional Director issued a certifica- tion. The Union did not request a meeting for the pur- pose of collective bargaining until September 26, at which time J. L. Mahady made such a request to Respondent 's counsel. In the interim , without notice to the Union , on September 10, 1966, four employees were given wage increases .' The earliest date within the Section 10(b) period is October 28, 1966. Meetings for collective bargaining were held on November 1, 1966, and January 11 , January 19, February 14, March 31 , April 25, June 8 , and June 20, all 1967. A strike ensued , commencing June 9, 1967, and terminating August 21 , 1967; approxi- mately 35 employees , in a total unit of approxi- mately 41 employees , did not report for work dur- ing the period of the strike . While new employees were hired during the strike period , Respondent has not asserted that they were replacements. Within several days of the termination of the strike , Respondent reemployed all of the strikers who sought reemployment , except Lewis and Wal- lace, alleged discriminatees . While , as set forth, in- fra, throughout the period of negotiations Respon- dent offered no wage increase , on August 21, 1967, White announced a 20-cent-per-hour , across-the- board, increase , effective September 1 or 2, without notice to the Union. On the day following each negotiating session, with one exception , and on May 9 , 1967, when a scheduled negotiating session was not held , White, inferentially at the commencement of work, ad- dressed the employees gathered in the Respon- dent's yard , advising them of the progress , or lack of it, of the negotiating sessions and the Respon- dent's adamant position on some of the issues. The exception was on January 20 , when the speech was given by Superintendent Hay. The principal events with which we are herein concerned occurred between the date of certifica- tion , July 1, 1966 , and, except for the discharges of Lewis and Wallace , the granting of the wage in- crease effective September 2, 1967. While there is S Robert Wallace, alleged discriminatee herein, credibly related that it was Harlan who advised him that he would be among the employees who would go to Franklinton, Louisiana, 300 miles from Shreveport, in Febru- ary 1967, during an emergency Wallace was among those instructed, by Harlan, to do certain work at Harlan 's home and Harlan's son 's home, in the nature of paving a driveway, aiding in the alteration of Harlan 's home, moving furniture, etc Eugene Lewis, alleged discriminatee herein, described instructions given by Harlan to Respondent 's employees , including supervisory employees, particularly in relation to the assignment of particular men to a particular crew, and the assignment , by Harlan, of overtime work Lewis also related that he was assigned for a period of several years, both during the work- week and on weekends, to do yard work at Harlan 's home, as well as the painting of Harlan's son's home , the buffing and waxing of floors, and other work performed at Harlan's house. Lewis identified other Respondent em- ployees assigned to this type of work as Bryant , Bruton, Emmett, Mays, Simmons, and Wesley it is undisputed that these employees were paid for this work by Respondent It is also undisputed that both Foreman Guice and Juchartz were present , at times, and directed the performance of some of this work. Ruben Wesley, who has been employed by Respondent since 1952, and is still employed, credibly related that Harlan issued orders both to foremen and to individual employees in the presence of foremen Wesley related that he had been instructed by his foreman, Guice, to follow any instruc- tions given him by Harlan Wesley was given similar instructions by Su- perintendent Hay Superintendent Hay did not deny that there were occasions when Harlan would select employees to be sent to a particular place, or to do a particu- lar job, but sought to minimize the frequency, asserting he might have picked out one or two because of their particular skill Hay acknowledged that Harlan spends a lot of his time checking the work done by Respon- dent's employees Hay acknowledged that Harlan did have Wesley go to Waskom , Texas, to pick up a load of bricks to take to Harlan's home, for some alterations and that other of Respondent's employees were assigned to do work at Harlan's home, and the home of Harlan's son To the extent the testimony of Hay, in regard to the activities of Harlan, is at variance with that of W allace, Lewis, and Wesley, I credit the latter three White asserted that Harlan, to White's knowledge , never directed an em- ployee, relative to the latter's work , "without going through the foreman " White admitted familiarity with the work done at the homes of Harlan and Harlan's son , by Respondent's employees, and that Respondent paid these employees for this work e United Electrical , Radio & Machine Workers of America ( American Rubber Products Corporation), 106 NLRB 1372, 1379, and fns 26 and 27, Hampton Merchants Association, 151 NLRB 1307, 1308, Armstrong Tire and Rubber Company, Tire Test Fleet Branch, Ill NLRB 708, 717, enfd. 228 F 2d 159 (C A 5) ' Identified as Bobby Caldwell, L C. Mays, Levear Feaster, and M. L. Lee Caldwell's increase was 20 cents per hour , to a $1.85 rate, while the others were 25-cent-per-hour increases, to a $1 65 rate 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some confusion in the record as to what was said by White in a speech shortly after the election in early July 1966, as differentiated from later speeches within the 10(b) period, and while the wage in- creases granted in September 1966, were patently outside the 10(b) period, these events are con- sidered solely as background , in view of the statuto- ry limitation on a finding of an unfair labor prac- tice, precluded under the Act as to events preced- ing October 28, 1966. In the Bryan cases the Supreme Court has stated that earlier events may be utilized to illuminate and explain the events within the period . Accordingly, reference herein to these events is so specifically limited. Interference, Restraint, and Coercion The evidence relative to acts and statements of Respondent 's supervisory personnel or agents, al- legedly conducted in derogation of the provisions of the Act, is summarized under the name of the particular representative specified in the complaint and testimony. Except where otherwise noted, all of these events occurred in 1967. C. D. White, Jr. It is undisputed that after each negotiating ses- sion , on the dates set forth, supra , except January 20, and on May 9 , White addressed the employees and advised them of the progress, or lack of progress, in his negotiations with the Union on the respective prior day . The facts relative to White's statements are in dispute. Leroy Davis, presently employed by Respondent, having been hired after the election , credibly re- lated that on May 8 White stated he had had another meeting with the Union and nothing had changed, that he would have to deal with the Union until July, that he could not deal with the em- ployees until after that , when they would have another election , that he could not fire the em- ployees on account of the Union , but could replace them , and they would not lose a day's work if they went on strike. Huey Furgerson , shop steward for the Union, an employee of Respondent for 13 or 14 years, credibly related that White gave a speech to the employees shortly after the election , inferentially in July 1966, as well as several other speeches later. Furgerson related that White, in the first speech, advised the employees that he wanted them to know how he felt about the Union, then asserted that whatever steps the Union took his work was still going on, that no matter what happened, if necessary, he could replace the employees. White then related a prior incident, which occurred in New Orleans, when that operation was organized by a union . White asserted he attended the bargain- ing meetings and after a year the Union "just faded away." After a negotiating meeting in New Orleans, in April, according to Furgerson , White advised the group of 35 or 40 employees, on April 26, that they had had a meeting and did not accomplish anything, that they could not agree on union shop or the checkoff of dues, that he would never agree to a union shop or to the checkoff of dues, that as he had stated before his work was still going to go on "regardless of what." White also asserted, at that time , that he intended to continue meeting with the Union until June 30, after which the em- ployees would have another election. Robert Wallace, alleged discriminatee herein, corroborating the assertions of Furgerson , credibly related that, on April 26, White advised the assem- bled employees of the negotiating session of the prior day, related that the Union and the Company had met and had not agreed to anything . White ad- vised the employees that he was not going to agree to anything with the Union, that the Union was try- ing to get a union shop and checkoff, that White in- tended to continue to negotiate with the Union until June 30, and after that they would have another election . White also advised the employees that he could not deal with them until after June 30. White advised that he knew the biggest majority of the employees had made a mistake in voting the Union in, that he believed that after the next elec- tion the big majority would vote for the Company. White also advised the employees that if they went on strike he could bring replacements from New Orleans. Eugene Lewis , alleged discriminatee herein, cor- roborated the assertions of Furgerson that shortly after the election , inferentially in July 1966, White advised the employees that he would not lose a day's work on account of the Union , that he had employees in New Orleans who would replace them if the employees went on strike. White , at that time, also advised the employees that a Union had or- ganized the operation in New Orleans , that the Company bargained with the Union for a year, and then the Union "just went away." Lewis credibly related that, in April , White advised the employees that the negotiating meeting in New Orleans the previous day had accomplished nothing, that the Union sought a union shop and checkoff, and that Respondent would not agree . White then advised the employees that he had to go along with the Union , inferentially in bargaining, for 1 year, that the year would be up in June , and that he could then deal with the employees . White also asserted that he believed that a majority of the employees made a mistake in voting for the Union , that they would have another election , and that he believed a 8 Local Lodge No. 1424 (Bryan Manufacturing Co) v. N. L.R.B., 362 U S.411. CRESCENT CONSTRUCTION CO. OF SHREVEPORT majority of the employees would vote for the Com- pany. Ruben Wesley, who has been employed by Respondent since 1952, credibly related that after each negotiation session White would make a speech to the employees , advising them that he wanted to keep them up to date with the Union, "and how the Union was coming along and that they hadn 't agreed on nothing." White advised the employees that the Union wanted a union shop and that he had not agreed on that. He also advised the employees that he could not fire them but, if neces- sary , he could replace them . In May, White advised them that he had been working for 20 years, in- tended to continue to work , and if they went out on strike he was not going to lose a day 's work. Ac- cording to Wesley , in May, White again related that the effort of the Union to organize in New Orleans resulted in his bargaining for a year , and then the Union "went on away." White acknowledged making a speech shortly after the election , inferentially in July 1966, in which he pointed out that a union had won an elec- tion in New Orleans in 1960 and "after a term of long period of negotiations that the Union had walked away from the table, that we never heard from them again . That was about what I imparted to the employees at that meeting ." White, asserting he never took any position about bringing em- ployees from New Orleans in the event of a strike, then related "in every speech that I made to the employees, I specifically stated that if they went on strike , we would replace them and continue opera- tions, but at no time did I say we would bring em- ployees up from New Orleans to replace them." Respondent introduced a copy of the speech pur- portedly given by White on April 26, which recites in part, the negotiating meeting on the prior day in New Orleans, that no progress was made, and that there were still 25 different items on which Respon- dent and the Union had not agreed, including union requests for union shop and checkoff. The speech contains the following passages, inter alia: The Company has refused to agree to a union shop, and the Company has refused to take money out of your wages and send it to the Union for union dues. At the present time , the Company has serious doubts as to whether this union still represents a majority of our employees. However, the Federal law says that since the employees voted for a union before , we must deal with that union for a period of one year, and the Company is doing so. The year will be up on July 1, which is about 2 months away. Until July 1, the Company cannot deal with its employees directly, but must deal with the Union for our employees. After July 1, there probably will be another election. If the Com- pany wins the next election , then the Company will be able to deal with its employees directly 573 over their working conditions and their wages. If the Union wins the next election, it would mean that the Company would be forced by law to deal with the Union, and only the Union, for another year. * I also want to tell you something about what would happen if we would have a strike here. Since the Union has not been given all the things it asked for in the negotiations, the Union would have a right to ask all of our em- ployees to go on strike. I am telling all of you now that you do not have to go on strike if you do not want to. As long as you want to come to work for us, the Company will see that you are fully protected from any violence. If any of our employees would go on strike, the Company intends to keep on operating and will hire new employees to replace the employees who went on strike. For this reason, it would not be smart for any of our employees to think about going on strike and then lose their jobs because of replacement. White acknowledged he did not have copies of the speeches which he gave on other occasions. White asserted his memory to be that his reference to the Union in New Orleans was in a speech earlier than April 26. White asserted the reason for his speeches was, "What I tried to do was to explain to the employees the main areas of disagreement dur- ing those negotiations." He acknowledged that, at least on one occasion, he made reference to the Union's request for a union-security provision and a checkoff and also the Company's request that any contract be limited, in term, to a date not later than the end of the certification year. White denied the reason for these meetings was to encourage employees to drop union activity. His explanation was that many of the employees had worked for him for 15 years, that he had sought in his negotiations with Southern Bell to improve wages and working conditions, "so it was only fair to me, I felt, to try and inform the employees of the status of the negotiations that were going on with the Union in these meetings." White acknowledged advising the employees, on April 26, "I still believe that most of you who voted for the Union did so in error, and did not realize that a union was really not necessary to help you here." White described this as his feeling, at the time of his testimony. To the extent the testimony of White is in vari- ance with that of Davis, Furgerson, Wallace, Lewis, and Wesley, the last five are credited. I do not credit the assertion of White that he read the April 26 speech verbatim. It is alleged that, in February 1967, White inquired of an employee how the employees were coming along with the Union, and advised him that the employees sure messed themselves up with the Union. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wesley credibly related that while he was in Franklinton, in February, White asked Wesley, whom the record indicates was well known to Respondent as a union advocate, "How y'all com- ing with the Union?" When Wesley responded he did not know, White advised Wesley of a negotiat- ing meeting scheduled for the following week. White did not deny this conversation with Wesley. Absent any evidence to support the allegations of paragraph 19(e) the complaint, I will recommend dismissal of that subsection. William C. Hay It is alleged that, on January 30, Hay solicited an employee to speak to other employees in an at- tempt to dissuade them from the Union, asked an employee if the "company agent" had spoken to him about the Union, and advised the employee that any time the employee wanted to talk to him about the Union, Hay would be available. It is also alleged that, on or about February 8, Hay inquired of an employee what had started the Union, questioned an employee as to whether he had talked to other employees about the Union, and ad- vised the employee that he had written down what the employee and he had discussed concerning the Union. On February 10, Hay asked an employee if he had talked to any other employees about the Union and, if so, what they had said. Furgerson, union steward and employee negotiat- ing representative, credibly related that, in January 1967, Bobby Caldwell, another employee, had a conversation with Furgerson at Furgerson's home, at which Robert Wallace and Ruben Wesley were present. Caldwell advised Furgerson that Superin- tendent Hay was upset with the way the Union was operating, that Hay had advised Caldwell that he could not approach and talk to Furgerson, but that, if Furgerson wanted to talk to Hay, all Furgerson had to do was to let Hay know and he would guarantee that it would be confidential.9 According to Furgerson, about 2 days later, Hay approached him, on Respondent's premises, and inquired if Caldwell had talked to him, and received an affir- mative response. Hay then asked Furgerson if he could get around and talk "to the boys concerning the Union." Furgerson responded that he would talk to them. Hay assured Furgerson that anything that was said between them would remain con- fidential. Furgerson asserted that, a couple of days later, Hay asked him "what started all this mess" concerning the Union. Hay told Furprson that Hay had talked to White and told White that he had talked to Furgerson, which, according to Hay, White was glad to hear. Hay then advised Furger- I I find it unnecessary to pass on the assertions of Furgerson , that he was told by Caldwell that Hay had a telephone in Hay 's automobile , as a means of contact, or the assertions of Caldwell that Hay had indicated a willingness to pay an amount of money to get the matter settled 10 While a careful reading of the record indicates some confusion on Fur- son that everything that they had talked about had been written down by Hay, and Hay was keepin* it locked in his drawer. Hay exhibited some writing on a paper, which Furgerson did not read. Furger- son related that he had advised Hay, in an answer to Hay's question, that the union movement had started when some employees were working in Heathville, and believed that the worktime was not correctly reported, following which they talked to Foreman Guice, and were advised by Guice that there was nothing Guice could do about it. Furger- son asserted that it was 4 or 5 days later, after his conversation in the office with Hay, that Hay inquired if he had talked to the other employees. Furgerson asserted that he responded that he had. When Hay inquired as to the response, Furgerson advised Hay that the employees had said they didn't want to talk concerning the Union. Furgerson had a further conversation with Hay in April. Furgerson related that Caldwell had returned from a trip to New Orleans, and Caldwell told Fur- gerson of a conversation Caldwell had with White, and advised Furgerson that he could make arrange- ments to talk to White through Hay. The following day, Hay inquired of Furgerson whether Furgerson had talked to Caldwell about Furgerson talking to White. Furgerson responded in the affirmative. Hay then advised Furgerson that White would come from New Orleans to talk to Furgerson. Furgerson then asserted he was supposed to advise White "how the situation was between us and the Union, how we felt about it. "19 Hay acknowledged having conversations with Furgerson, was uncertain of the time, then asserted it was in April. Hay asserted that Caldwell advised Hay that Furgerson wanted to talk to him. Hay's version was that he asked Furgerson if Furgerson wanted to talk to him, and that Furgerson responded that Furgerson did not want anyone to see Furgerson talking to Hay, especially Wesley. According to Hay, Furgerson asserted that he was willing to pull out of the Union, if the rest of them would. Hay asserted that he assured Furgerson that Furgerson's job would be protected, whether he stayed in the Union or got out of it, "that didn't make any difference about his job." Hay then acknowledged that he did tell Furgerson that Hay had talked to White, and told White that he had talked to Furgerson, and had advised Furgerson that he would still have his job. Hay then related that after his telephone call to White, pursuant to White's instructions, he called Meyer, Respondent's attorney, and, following that conversation, he ad- vised Furgerson that his job was still there, re- gardless of which way he went. Hay acknowledged that Furgerson never stated that the other em- gerson 's part in distinguishing between conversations with Caldwell im- mediately after the election , as distinguished from January 1967, 1 find it reasonable to conclude that the conversations Furgerson had with Hay oc- curred in late January, early February, and in April. CRESCENT CONSTRUCTION CO. OF SHREVEPORT ployees were willing to pull out of the Union, but asserted that Furgerson did state that he would be willing to pull out of the Union, if the rest of them were. Furgerson denied ever telling Hay that he was tired of the Union and wanted to get out, or that other employees were afraid to get out of the Union because the Company might fire them ." To the ex- tent the testimony of Hay is at variance with that of Furgerson , I credit Furgerson. It is alleged that, in April, Hay interrogated an employee , advised an employee this was the first time the employees had gone so long without a raise, and advised employees that they were sup- posed to have received a 15-cent -per-hour raise, but because of the Union they did not recieve it. Davis credibly related that , in mid-April, he was present when Hay told Bruton that Hay heard the employees were going to strike the following day. Bruton denied knowledge of it. Hay then said, "Well that is what I heard but liars can get out on things like that. But I tell you like Mr. White said, we can't fire you all on account of Union but we sure can replace you." Hay did not deny this recitation of Davis, which I find credible." Lewis credibly related a conversation he had with Hay, at Shreve City Island, in April, in the presence of Wallace and Wesley. Hay inquired as to what they were doing about the Union. Wallace responded that he had not heard anything . Hay as- serted that he had not either, but he wished they would do something as, "this is the first time you all ever went this long without a raise." Hay then stated , "you all supposed to have gotten a 15 cent raise before you got tied up with this union." Wal- lace, who placed the conversation as being on ap- proximately April 24, corroborated Lewis. Wallace also asserted that Hay stated that he wished "they would do something with the Union, do something one way or the other, he say, because the Union's got everything tied up." Wallace also quoted Hay as stating this was the first time the employees had ever gone that long without a raise, and that they should have received a 15-cent-per-hour raise. Hay did not deny the assertions of Wallace and Lewis, whom I credit. Charles Guice It is alleged that on November 2, 1966, Foreman " I find it unnecessary to resolve a conflict in the testimony of Respon- dent's counsel, Meyer, with that of Furgerson , relative to Hay's conversa- tions with Furgerson Meyer sought to establish that , in a pretrial con- ference with Furgerson on October 11, 1967, Furgerson advised Meyer that Furgerson had met Hay at the gate , inferentially in April, and that Fur- gerson had advised Hay that the men were uncertain about the Union, that many of them wanted to get out of the Union, but were worried about the Company's reprisal or discrimination , and that Furgerson was particularly worried about himself because he had been chief steward According to Meyer, Furgerson related that Hay stated that Hay would contact White and report this to him, and also suggested that Furgerson try to find out more about the feelings of the other employees. 575 Guice interrogated an employee about his at- tendance at a union meeting, and sought the identi- ties of others who attended the meeting, and warned an employee not to talk to union represen- tatives. Wallace, whose foreman was Guice, credibly re- lated that, in early November, Guice had asked him if he had been to any of the union meetings, and Wallace responded in the negative. Guice then inquired whether any of the union representatives had been to Wallace's house to talk to him, and again received a negative response. Guice then ad- vised Wallace that Guice had heard that the union representative, Rainbolt, had been to Wesley's house, and had talked to Wesley and Guice in front of the telephone building. Wallace asserted that Guice advised him that, if the union man came to Wallace's house, Wallace should advise him that he didn't want to talk about the Union "and to hell with it." Wallace asserted that Lewis was present during this conversation. While Lewis appeared as a witness, he was not questioned relative to this in- cident. Guice did not remember any such conversation with Wallace. Guice asserted that employees came to him and asked his opinion, and that he always told them that he could not advise them one way or the other, "that's a decision they had to make." Guice did not "think" that he had any such conver- sation with Wallace and did not remember it. On this conflict, I credit Wallace. It is alleged that, in January,1967, Guice inquired if an employee had heard anything about the Union, and upon receiving a negative response 3- vised him that Guice believed that the Union had "put the employees down"; that Guice advised an employee the best thing the employees could do was to organize a group to advise the Union they did not want it to represent them any longer; that when an employee advised that he knew nothing of the Union, Guice told the employee it was a lie and accused the employee of associating with and fol- lowing a known union adherent. Wallace credibly related that Guice, in January, asked him how many times he had been to a union meeting. Wallace responded that he had not been to any union meetings, and thereupon Guice ad- vised him that was a "damn lie." Guice advised Wallace that Wallace was fooling around with "big headed Wesley," another employee. Guice also ad- 'r Respondent sought to justify the inquiries of supervisory personnel about a pending strike in April by attributing the source of the rumor to a conversation between Roshto , local president , and McKinney, district plant manager of Southern Bell. McKinney related that Roshto advised him that negotiations had bogged down and they were expecting to call a strike. McKinney relayed this information to McManus, his superior in New Orle- ans, identified by White as general plant manager for Louisiana . White was advised by McManus and, in turn, advised Hay . Roshto acknowledged hav- ing a conversation with McKinney , but sharply disagreed as to what was said about a strike. I find it unnecessary to resolve these conflicts . The sole question is whether the conduct of supervisory personnel violated the Act 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vised Wallace the best thing for all the employees to do was to get together and go down and tell the Union that they did not want the Union and that they were through with it. Guice did not remember any conversation with Wallace, relative to the Union , in January , and de- nied that he suggested to Wallace that the em- ployees advise the Union that the employees did not want the Union to represent them any longer, or that he advised Wallace that his statement was a lie. Guice denied ever interrogating Wallace as to his union activities, and did not remember referring to Ruben Wesley as "big headed Wesley ." On this conflict, I credit Wallace. It is alleged that, in April 1967 , Guice inter- rogated an employee about his union activities, created the impression of surveillance by accusing an employee of knowing more about the Union than he would admit , and accusing an employee of having attended union meetings. Wallace asserted that, in April, at Shreve City Island, with Lewis present , Guice asked Wallace if he had heard anything about the Union calling a strike, and Wallace replied in the negative . At that time Guice asked Wallace how many times he had been to union meetings and Wallace responded that he had been to three meetings , once with Lewis, twice with Hill, and each time with Caldwell, who picked him up. Guice responded that Caldwell could not have picked him up because Caldwell was not for the Union. Wallace advised Guice that Guice could verify Wallace 's statements through Wallace 's wife. Guice denied accusing Wallace of having at- tended union meetings, or thus creating the impres- sion of surveillance . Guice did not remember discussing the Union with Wallace and repeated his earlier statement that the only discussion was when Guice was asked his opinion , and he responded that he would not advise "them" either way , that that was a decision they had to make on their own. He asserted this was the only question that ever came up. Guice acknowledged that Caldwell and Hill, as well as Wallace , were part of his crew. Guice acknowledged hearing rumors of a strike in the spring of 1967, but could not recall from whom he heard these rumors . On this conflict, I credit Wal- lace. Charles Juchartz It is alleged that, in March 1967 , Juchartz ad- vised an employee that the employees would not get a raise because they became involved with the Union , and it would probably be around July before the employees got a raise. Leroy Davis credibly related that, prior to the strike , his foreman was Juchartz . In early March, Davis and Bruton13 were painting a new office building of Respondent . Bruton asked Juchartz when he was going to get a raise . Juchartz responded that they were not going to get a raise, then used a foul expression indicating the em- ployees had created their own problems. When asked by Bruton what he meant , Juchartz asserted, "I mean all of you with that Union . It will probably be around July sometime before you all get a raise." Juchartz, who has been a foreman since May 1951, acknowledged knowing Davis, but denied ever discussing a raise with Davis . Juchartz then acknowledged discussing a raise with Bruton and Williams, asserting that Bruton asked him about a raise , inferentially in March, and asserting that he advised Bruton that he had been told that during the union negotiations the wages were frozen and they could not get one. Juchartz asserted that it was later that Williams made the same inquiry , that he advised Williams that he would make an inquiry of Superintendent Hay, which he did . Thereafter, ac- cording to Juchartz , Hay confirmed the fact that wages were frozen. On this conflict , I credit Davis. It is alleged that , on April 20, Juchartz asked an employee if he was going on strike with the other employees. Evans Bryant has been employed by Respondent for 13 or 14 years, and was still employed at the time of his appearance herein . Prior to the strike his foreman was Juchartz . Bryant credibly related a conversation he had with Juchartz on April 20, dur- ing which Juchartz inquired if Bryant was going out on strike with the other employees . Bryant asserted that he responded that he did not know anything about a strike. Juchartz acknowledged making this inquiry. Juchartz asserted that he had been advised, by an unidentified telephone company employee , that the latter had heard that there was going to be a strike. Juchartz asserted he made the inquiry so that he could leave his work in safe shape. It is alleged that , on April 25 , Juchartz advised an employee that White would be in Shreveport "to get him straightened out," that Respondent had 150 men at its New Orleans plant who were doing nothing, and Respondent would bring them to Shreveport to replace employees who went on strike , and advised the employee that employees had already lost $400 [each ] because of the Union. Bryant credibly related that he had a further con- versation with Juchartz, on April 25 , at the front of- fice steps . Juchartz again asked Bryant if he was going on strike , and Bryant responded that he did not know anything about a strike . Juchartz then stated that White would be in Shreveport, the fol- lowing day, "to get us straightened out." Juchartz asserted that he did not believe there were more than four employees who were for the Union, that each employee had lost over $400 on account of " Bruton did not appear as a witness. CRESCENT CONSTRUCTION CO. OF SHREVEPORT the Union , and that if anyone went out on strike, White had 150 employees in New Orleans, who were doing nothing, that he could bring to Shreveport to replace those who went out on strike. It is undisputed that White did make a speech to the employees, in Shreveport, on April 26, as more fully set forth, supra, under White. Juchartz denied advising Bryant that White "would get him straightened out," denied knowing how many men were employed at New Orleans, or that they were doing nothing , or that the New Orle- ans employees would be used to replace Shreveport employees on strike , or that he advised Bryant that the employees had each lost about $400 because of the Union . Juchartz denied asking Bryant if he was going on strike on more than one occasion . On this conflict, I credit Bryant. 14 Ray Emmons It is alleged that , in February 1967, at Franklin- ton, Louisiana , Emmons interrogated an employee about his union activities, and advised the em- ployee that the employees "had really fouled them- selves up" by getting involved with the Union. I have found , supra, under subsection I, that Mc- Mahon and White are also the sole owners of Crescent Construction Company of New Orleans, a separate partnership . It is undisputed that Emmons is superintendent of that operation. White acknowledged that Franklinton was not normally within the geographical area served by either the New Orleans operation or the Shreveport opera- tion , and a special crew had been sent there from Shreveport, to do some plowing, for a period of 2 weeks, as the result of two hurricanes. White acknowledged that the crew from Shreveport in- cluded a foreman, but that most of the people who worked on the job were from New Orleans, the latter doing work other than plowing. White, who acknowledged that Emmons was a supervisor, as- serted that Emmons, in February, was "in the general position of Superintendent over these em- ployees." Accordingly, I find that Emmons was act- ing as a supervisor for Respondent, and that Respondent is responsible for any conduct of Em- mons which was violative of the provisions of Sec- tion 8(a)(1) of the Act. Wesley credibly related that, immediately after his conversation with White , in Franklinton, in February, set forth, supra, in this subsection under White, he had a conversation with Emmons. Em- mons asked him how he was coming with the 14 1 find of no consequence the assertion of Juchartz, and other Respon- dent witnesses, that Meyer, Respondent 's counsel, in the summer of 1966, advised Respondent's supervisors not to discuss the Union with employees, and advised the assembled employees that Hay and White were the only of- ficials who had any authority to announce company policy, and that the foremen had no authority to give their opinions on it The single question to be resolved, in this regard , is whether Respondent's supervisory personnel or agents engaged in conduct which was violative of the Act 16 Absent any allegation, in the complaint , of a discriminatorily 577 Union, and Wesley responded he did not know. Emmons, in obscene language , advised Wesley that Wesley had fouled himself up. Emmons did not appear as a witness, and there is no denial in the record of the recitation of Wesley, whom I credit. W. O. Harlan I have found, supra, under the section entitled Supervisory Personnel and Agents, that W. O. Har- lan, for the purposes of this case, was an agent of Respondent. It is alleged that in November 1966, Harlan ad- vised an employee that "he had really fouled him- self up" by becoming involved with a union, that he would no longer receive long rides out-of-town or any more overtime, since the Respondent would, in the future, send a nonunion man on these trips. Wesley, who was, on occasion, a truckdriver, I have found supra, was told by his foreman, Guice, to do whatever Harlan instructed him to do. Wesley related that previously, during his employment since 1952, he had made trips in the company trucks, under instructions from Hay, Harlan, and Guice. Wesley credibly related a conversation he had with Harlan in November 1966, at the plant gate. Harlan, according to Wesley, advised Wesley that he had messed up with the Union, and in ob- scene language assured Wesley that he had fouled himself up. Harlan then advised Wesley that he would not get any more overtime and would not get to make another trip out of town, that Harlan would see to that. Harlan stated he would get a nonunion man for these trips. Wesley described his previous trips out of town as occurring as frequently as two or three times a month.15 It is alleged that, in early April 1967, Harlan created the impression of surveillance by advising an employee that Respondent knew the date on which the employees were going to strike. Wesley related that he had a conversation with Harlan, in April, in Shreve City Island. Harlan, ac- cording to Wesley, advised Wesley that he heard that the employees were going to strike. Wesley responded that he knew nothing about it. Harlan then advised Wesley that no one else would be able to go on strike except him. Wesley asserted he did not know what Harlan was talking about. Harlan did not appear as a witness and Wesley's recitations stand undisputed, and are not credited. It is alleged that , in early April 1967, Harlan in- terrogated an employee about his union activities, motivated change in working conditions or overtime , in relation to Wesley, this evidence is considered only to the extent that it may constitute coer- cion , thus a violation of the provisions of Section 8(a)( I ) of the Act At the outset of the case , General Counsel was advised by the Trial Ex- aminer that the matters to be litigated herein would be confined to the al- legations of the complaint , as amended, since Respondent was entitled to know what he was defending against at the outset of the case . General Counsel advised , thereafter, that he proposed no further amendments. 354-126 O-LT - 73 - pt. 1 - 38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and accused the employee of being a liar , when the employee denied knowledge of such activities. Lewis, who was employed by Respondent for 10 years prior to the strike, credibly related that he had a conversation with Harlan, while working at Harlan 's home, in April. Harlan asked Lewis, "What way was I going and what did I know about the Union." Lewis responded that he did not know anything about the Union. Harlan then asserted that someone was telling a damn lie, that at the time of the election everyone was asked and said they did not know anything about the Union "and it was 22 votes so there was 22 damn lies told." Lewis asserted that he responded , "Well, if I go union I guess I'll have to follow the crowd." Harlan ter- minated the conversation with the use of a familiar phrase which relates to an implied canine maternal ancestry. I credit this recitation of Lewis, which stands undisputed.16 Lewis credibly asserted that, about a week after the above conversation , Harlan advised Lewis that Harlan had heard that the employees were going on strike on April 15. Lewis responded that he had not heard about it. Harlan responded "Well that's a damn lie." Bobby Caldwell It is alleged that Bobby Caldwell, an employee, as agent of Respondent, advised employees, in Janu- ary, that Respondent was willing to give employees money if they would give up the Union; induced employees to withdraw their union affiliation; ad- vised employees that Respondent had warned that the employees "would be in a mess" if they tried to associate with the Union ; informed an employee that Respondent was willing to pay employees if they would give up the Union; and that, in March, Caldwell advised an employee that Respondent had given him a sum of money for being "a company man" and in order to get other employees to drop the Union. Furgerson, Wallace, Wesley, and Davis related conversations they had with Caldwell, covering the foregoing allegations . This evidence was received conditionally, subject to proof of the existence of an agency relationship. Caldwell , who has been em- ployed since 1953 , as a common laborer and truckdriver, denied each of these alleged conversa- tions . Even though I do not consider Caldwell a credible witness , on the basis of demeanor , and for other reasons which appear in the record , including an admitted felony conviction , involving moral tur- pitude , in 1961, such a finding does not establish the truth of the representations Caldwell made. It is fundamental that extrajudicial statements of an 16 While Lewis then related what might constitute a threat , if the em- ployees went on strike , there is no allegation relative to a threat by Harlan, in paragraph 24 (c), (d), or (e), which relates to the events in April 1967 Accordingly, this evidence is not considered , for the reasons set forth in the footnote immediately above agent, as to the existence of an agency relationship, are inadmissible." There is no evidence that Respondent was ever apprised of the representa- tions made by Caldwell, with the single exception of the Hay-Furgerson incident. I have found, supra, in this section under Hay, that, in January, Caldwell advised Furgerson that Hay desired to talk to Fur- gerson, and that 2 days thereafter Hay inquired of Furgerson if Caldwell had talked to him. I am una- ble to find , from this single delegation of limited communication , through one employee to another employee , that Respondent is responsible for all of the representations Caldwell made. Charging Party urges that the evidence of the Caldwell-Furgerson conversation , instigated by Su- perintendent Hay, followed by the Hay-Furgerson conversations, is sufficient to support an inference of Respondent's acquiescence in Caldwell's other representations, which are clearly unrelated. I do not agree that one can be held to have ratified or acquiesced in conduct absent evidence of probative value of delegation of authority, or, alternatively, of knowledge which might require a disclaimer or dis- avowal.' General Counsel, in his brief, relies on Respondent's awareness of Caldwell's unsym- pathetic views toward the Union, as demonstrated by the Guice-Wallace conversation, supra, as well as the Caldwell-Furgerson-Hay conversations relied on by the Charging Party as a basis to support a finding of knowledge. I disagree. Accordingly, in the absence of proof of agency, I will recommend dismissal of the allegations of para- graph 25 of the complaint.19 The Refusal To Bargain The Appropriate Unit-The Union's Majority Status The complaint alleges, the answer admits, and I find the following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All general laborers, truckdrivers, and the mechanic, employed by Respondent at its Shreveport, Louisiana, operation, excluding of- fice clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. On June 23, 1966, in Case 15-RC-3398, a majority of Respondent's employees, in the ap- propriate unit described, designated and selected the Union as their representative for the purposes of collective bargaining, within the meaning of Sec- tion 9(a) of the Act, and on July 1, 1966, the Re- 'r 3 Am . Jur 2d, Agency, Sec 353. '" A W C, Inc, 162 NLRB 1119; Alamo Express, Inc, 127 NLRB 89, 91, and Armco Drainage & Metal Products , 106 NLRB 725, cited by Charg- ing Party are inapposite. 19 Redcor Corporation, 166 NLRB 1013 (TXD ), and in. 19 CRESCENT CONSTRUCTION CO. OF SHREVEPORT 579 gional Director certified the Union as the exclusive bargaining representative of the employees in said unit. The complaint alleges, and the answer admits, that at all times since June 23 , 1966, the Union has been the representative , for the purposes of collec- tive bargaining, of a majority of the employees in the unit described . Respondent, by answer , raises only a question of what it chooses to call a "conflict of interest" as distinguished from the Union's majority representation . Respondent 's contention relative to the Union's lack of majority status is further explicated, infra. However, it is noted that the consolidated complaint was issued on October 16, 1967, and Respondent 's answer was filed on October 26, 1967, 6 months after the April 26 speech of White, in which he questioned the majority status of the Union. Sequence of Events The complaint sets forth each of the bargaining meetin* dates as a separate request, on the part of the Union, that Respondent bargain in good faith, and alleges that commencing November 1, 1966, the date of the first meeting , and at all times thereafter: The Respondent entered bargaining with a fixed, inflexible position ; insisted, including a June 20 meeting, that the term of the contract con- tain a termination date of June 30; that Respondent had a closed mind on union security and dues checkoff provisions; that Respondent refused to in- corporate existing conditions of employment with respect to lunch period and reporting time; that there be no provision for job classifications, wage- rate ranges, or wage changes, reserving to itself uni- lateral authority to grant wage increases; that between the dates of November 4, when Respon- dent filed a petition to revoke certification, and January 11, Respondent refused to meet and bar- gain with the Union ; that, after each bargaining meeting , Respondent addressed its employees and advised them that Respondent did not intend to agree to anything, and that there would be another election at the end of the certification year; that Respondent attempted to bargain individually with its employees, and to induce themf to abandon and repudiate the Union , by threats of reprisals if they did not do so, and promises of benefits if they would ; that on September 2, 1967, Respondent uni- laterally granted a 20-cent wage increase to the em- ployees, without notice to, or bargaining with, the Union. I have found , supra , under interference, restraint and coercion, that in early July 1966 , White related to the assembled employees that a union had won an election , in New Orleans, in 1960, and, in the language of White , "after a term of long period of negotiations that the Union had walked away from the table, that we never heard from them again." At the same time White advised the employees, if they went on strike, that they would be replaced, and Respondent would continue operations. I have also found, supra, under background, that Respon- dent, without notice to the Union, on September 10, 1966, granted a wage increase of 20 cents per hour to one employee and 25 cents per hour to three other employees. It is undisputed that the first notice to the Union, relative to these alleged merit increases , occurred at the January 11 meeting, and the identity of the recipients and amounts were pro- vided either on that date or at the following meet- ing, January 19. The explanation of Meyer, Respondent's counsel, of the failure to notify the Union of these proposed increases , was that Respondent had not received a request for bargain- ing from the Union and that it was a continuation of the existing wage policy.20 It is undisputed that the Union's first request for a negotiating meeting was by letter of Mahady, Louisiana director for the Union, to Meyer, Respondent's counsel. Subsequently, the first negotiating meeting was held on November 1, 1966, with subsequent meetings on January 11 and 19, February 14, March 31, April 25, June 8 and 20, all 1967. Except for the meetings of March 31 and April 25, which were held in New Orleans, the meetings were in Shreveport. Representing the Union, Mahady attended every meeting, Roshto, local president, attended each Shreveport meeting except the last, Furgerson, elected shop steward, at- tended the Shreveport meetings , Daniel, west area director, attended the last three meetings and Stan- ford, counsel for Charging Party, attended the last two meetings. Respondent was represented by its counsel, Meyer, at each meeting except February 14, by owner White, except the June 8 meeting, and Superintendent Hay, except the two meetings in New Orleans and the last meeting in Shreveport. The initial negotiating meeting, on November 1, which apparently lasted approximately 2-1/2 hours, was confined to the Union's submission and ex- planation of a proposed agreement covering 17 subject matters, with numerous subsections as fol- lows: Length or term of contract; recognition; union security or union shop , two sections; seniori- ty, four sections; grievances and arbitrations, six sections; vacations, four sections; holidays, three sections; Sunday and holiday pay, two sections; overtime, five sections; working conditions, twelve sections; union functioning; checkoff; wages; benefits; emergency call in, three sections; life of agreement, two sections; "Appendix," classifica- tions of employees. It is undisputed that the Union presented no wage demand at the first meeting. Rather, the Union requested the existing rates 20 While I find it unnecessary to make findings relative to Respondent's alleged merit increase policy, there is evidence in the record that Respon- dent 's past practice was to grant across -the-board increases , as distin- guished from merit increases 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being paid each employee, and this information was submitted on November 3, by letter from Meyer to Mahady. Subsequently, on December 8, by letter from Mahady to Meyer, the Union proposed a 30- cent-per-hour across-the-board wage increase. Roshto related that the Union requested a 3-year agreement, with a 1-year wage reopener. In answer to a question, the Union acknowledged that it was requesting, under recognition, that supervisory per- sonnel be precluded from performing craft work, a condition at variance with Respondent's practice.21 On the request for the use of seniority as governing promotions, Respondent asserted they did not have job titles. On the request for varied vacation periods, for different periods of qualification, the Company asserted they gave 1 week of vacation after 1 year's service, and no more. On a request for 7 holidays, the Union acknowledged the telephone employees, whom it represented, did not receive Veterans Day, one of those enumerated. Relative to its request for double-time pay for Sun- day and holiday work, the Union acknowledged the telephone employees did not receive this benefit. Respondent asserted their obligation was limited to overtime after 40 hours of work, under Federal law. Respondent made a similar observation relative to a request for daily overtime. Under working condi- tions, the Union requested a timeclock, explaining that some employees felt they were not receiving full time and wanted proof. White responded that the wage and hour people had inspected and had not found problems. Later, Respondent asserted that this request was impractical since some em- ployees reported directly to a job, and others returned only to a point of public transportation, rather than the plant, at the conclusion of the work- day. Relative to the request for checkoff, upon ap- propriate authorization, Meyer responded that by good service the Union could and should do its own collecting. On benefits, Respondent advised that they were presently paying one-half the cost of hospitalization insurance and a life insurance pol- icy, with the employees paying the other half, and agreed to supply the pertinent information. On emergency call out, the Union asserted that men waited as much as 2 hours and then were told they were not needed, and in some cases were paid for only 30 minutes. Superintendent Hay responded that the men were paid 4 hours when they worked on a call out. On November 4, 1966, Responded filed a peti- tion to revoke certification, in Case 15-RC-3398. Respondent, in its brief, asserts that the Trial Ex- aminer erred in excluding evidence which would have shown the disqualification of the Union in the instant matter to be bargaining representative of Respondent's employees. I find no merit in this contention. However, a portrayal of pertinent facts appears appropriate.22 Roshto acknowledged that Meyer asked Mahady if it was true that the Union was trying to stop all contracting out of work in negotiations which were going on at that time, and that Mahady asserted that he had no knowledge of the detail of the negotiations. The premise of Respondent's petition to revoke is that in excess of 50 percent of its business is performed for Southern Bell, in the nature of placing underground conduits and installing poles, that the Union's effort to restrict subcontracting by Southern Bell, which Respondent asserts would result in a diminution of Respondent's activity, places the Union in a posi- tion of "conflict of interest" in seeking to represent Respondent's employees, while, simultaneously, seeking the elimination of a substantial portion of Respondent's work obtained through subcontract- ing. The Regional Director issued an Order to Show Cause. Thereafter, the Union filed a response in which it asserted, inter alia, that its current collec- tive-bargaining contract with Southern Bell became effective on September 5, 1963, and contained, as part of Article 14, a provision relative to subcon- tract work, including a subsection 5 which reads "nothing in Section 14.01 is to be interpreted as restricting the right of the Company to use contrac- tors' labor to perform any work under '2' and `3' above, which can be done by unskilled or occa- sional employees." The "2" referred to relates to underground cable and splicing of buried cable. The Union, in its response, further advised that negotiations, on a new 3-year contract, had been completed and the agreement had been submitted to the membership for ratification, without modifi- cation of the recited provisions. On February 2, 1967, the Acting Regional Director, for reasons set forth in the Decision, denied Respondent's petition to revoke. It is undisputed that no appeal was taken from that decision. The Board, by published rule,23 has provided, "Failure to request review shall preclude such parties from relitigating, in any re- lated subsequent unfair labor practice proceeding, " I find it unnecessary to resolve a credibility question which arises by reason of the assertion of Roshto , that Meyer, relative to the Union's request for a union shop, asserted that he had never signed a contract with a union-security clause in it Meyer denied having made the statement and asserted the contrary was true. It is undisputed that Respondent did not agree to this provision , refused to accede at a number of the meetings, and White announced his opposition to it to the employees in his speech of April 26. " While Roshto, president of the Local, asserted that while he was a lineman, some years previously , he and others wished to limit the contract- ing out of generator work, and other work done by switchmen and linemen, this did not encompass the contracting out of digging for the placement of underground cables or telephone poles The latter is the work encom- passed by Respondent's Shreveport operation, insofar as this record reveals it. Roshto explained that unidentified union officials had a meeting of local presidents during which the contracting out provisions were discussed This evidence is unconnected to the actual negotiations between Southern Bell and the Union , at Atlanta, which inferentially covered a much larger geo- graphical area than Respondent's operations. _' Rules and Regulations and Statements Procedure , Series 8, as amended, revised January 1, 1965, Section 102.67(f). CRESCENT CONSTRUCTION CO. OF SHREVEPORT 581 any issue which was , or could have been , raised in the representation - proceeding." Respondent was advised accordingly at the outset of the hearing herein . Respondent's contention is without merit.24 Paragraph 13(g), of the complaint , alleges that commencing on November 4, 1966, and continuing until January 11, 1967, Respondent refused to meet and bargain with the Union during the pendency of Respondent 's petition to revoke certification, filed on the earlier date . The evidence relative to this al- legation is next considered . General Counsel, in his brief, recites the following: On November 23, by letter, Mahady confirmed a conversation with Meyer, requesting a resumption of bargaining, dur- ing which Meyer suggested that the parties were precluded from meeting by reason of the petition for revocation and suggested a delay until November 28, the return date on the order to show cause; on November 25, by letter, Mahady sug- gested a meeting on December 5, asserting that the petition for revoction did not affect Respondent's obligation to bargain ; on December 1, Meyer ad- vised Mahady that no damage would be done if the meetings were suspended pending the decision on the petition to revoke , but, nevertheless , asserting that "in order to comply in full with the letter and spirit of the law," Respondent was agreeable to a meeting, also suggesting a meeting be deferred until the Union had submitted its wage proposal; the Union's wage proposal was submitted on December 8; on December 13, Meyer advised Mahady that White was out of town, and that Meyer had been unable to determine an agreeable date for bargain- ing; on December 19, Meyer advised Mahady that he had attempted to reach Mahady and was advised by Mahady's office that Mahady was not available until January 3; on January 5, Mahady, by letter to Meyer, confirmed a conversation, inferentially of the same date , setting January I 1 as the next meet- ing date ; the denial of the petition to revoke did not occur until February 2. While it is undoubtedly true that, in November, Meyer did suggest the desirability of deferring further negotiating meetings , pending the Board's disposition of the petition to revoke, a fair reading of the subsequent communications requires a find- ing that subsequent delays were due to: (1) the Union's delay in submitting a wage proposal; (2) the absence of White from the city, which does not appear to have been unduly extended; and (3) the unavailability of Mahady from December 19 to January 3. When the parties reached each other, on January 5, a meeting date of January 11 was promptly agreed upon . There is no evidence of any other attempt, by Respondent, not to meet reasonably at requested times. Accordingly, for the reasons stated , I will recommend dismissal of the al- legations of paragraph 13(g) of the complaint. I turn next to the events of the meeting of Janu- ary 11. It is undisputed that at the outset of this meeting, Respondent presented what it termed as counterproposals, covering variations of many of the items in the Union's proposal and, in addition, the following: Preamble; management's rights, eleven sections; strikes and lockouts, three sections; discrimination and union relations, four sections; waiver of further bargaining; termination of rights and obligations. In view of the contentions herein, it is noted that the term of contract proposed by Respondent was the date of July 1, 1967, the end of the certification year. It is undisputed that this is the only written proposal, relative to term of contract, submitted by Respondent.25 However there were discussions of slightly longer terms, as set forth infra. The term of contract proposal, of Respondent, also provided for automatic renewal for the period of 1 year, unless either party notified the other, in writing, of its desire to terminate. The Union requested a minimum term of 1 year. It appears undisputed that this meeting, on January 11, lasted approximately 4-1/2 hours, dur- ing which there was considerable discussion, which I find unnecessary to set forth in detail, with some agreement on minor language changes, relative to specific proposals. Agreement was reached: on the Company's proposed "preamble," a company proposed recognition clause; on a provision for 6 holidays, after the Union receded pfrom a request for 7 holidays; and a benefits provision, covering hospitalization, sickness, accident, and life in- surance. There was also agreement that seniority would be followed in the matter of layoffs and rehiring after layoffs, as distinguished from agree- ment on specific language. On union security, the Company asserted that it was not going to compel its employees to join the Union, a position it maintained throughout sub- sequent negotiations. On checkoff of union dues, upon appropriate authorization, Respondent's posi- tion was that it was the Union's responsibility to collect dues, a position which the Company main- tained throughout subsequent negotiations. On va- cations, Respondent asserted it would continue its present practice of granting I week's vacation after 1 year of service, which the Company asserted was sufficient, a position which it maintained throughout the negotiations. On overtime, the Union requested daily overtime and Respondent as- serted it would continue its present practice of granting time and a half after 40 hours, as required by law. On the matter of premium time for Sunday and holiday work, Respondent asserted it applied the weekly overtime provision, and would continue this practice. Under wages, Respondent's counterproposal 24 Manning, Maxwell & Moore, Inc., v N L R B 324 F 2d 857 , 858-859 (C.A. 5), Carolina Natural Gas Corporation , 157 NLRB 674, 677, and fn. 2. " I find it unnecessary to determine if Meyer expressed a doubt of the Union's majority status, as the reason for this position , as related by Roshto and denied by Meyer Meyer asserted he first questioned the Union's majority status on April 25, for reasons explicated infra 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would vest exclusively in the Respondent the right to determine starting rates, with a specified minimum , and the right to grant merit increases, with subsequent notice, after the fact, to the Union. Roshto credibly related that the Company refused to make any counteroffer on wages, asserting that they were able to hire all the employees they needed at the existing wage scales, a position they maintained throughout the negotiations.26 Roshto credibly related that , in a discussion on the matter of emergency callouts, Respondent acknowledged that they paid an individual for 4 hours ' work under these circumstances , thereupon the Union asserted they should not have any problem agreeing on the minimum of 2 hours' pay, where an employee was called out after hours. Roshto asserted that the Respondent 's representa- tives acknowledged they could not recall a time when they did not make such a payment but would not agree to place such a provision in the con- tract. The next meeting was held on January 19.28 Roshto asserted that the Union reduced its demand for a wage increase to 10 cents-per-hour across-the- board, and the Company responded that they were paying a sufficient rate and did not feel they had to offer any increase. Meyer asserted that it was at this meeting that the Union proposed the 3-year progression schedule on wages, and job classifica- tions . Meyer acknowledged asserting Respondent's opposition to job classifications, and its assertion that it proposed to continue paying the present wages, and granting merit increases, in its discre- tion . Meyer acknowledged asserting that he be- lieved Respondent's wage position was "fair and equitable , since at that time, we were having no trouble in filling the jobs for our Shreveport op- eration and that those rates, which were indicated, that the rates could not be out of line . . . ." When the Union inquired if this was the Company's final offer, Meyer acknowledged that he responded that that was Respondent's feeling on it and that was what they proposed to do. Meyer asserted that he then stated that Respondent did not take final positions. When the Union requested Respondent's position on length of contract, Meyer asserted that he wanted it limited to the certification year. When the Union noted this would be a 5-month contract, Meyer inquired if the Union would accept a 6- month or 7-month contract. It is undisputed that the Union sought as a minimum a 1-year contract. t° Meyer acknowledged that Respondent's position was that they were not proposing a wage increase , but were proposing that the employer may grant merit increases. Roshto related that initially the Union had sought job classifications of shop mechanic, truckdnvers, and laborer. During the discussion, on Janu- ary 11, the Union was advised by Meyer that Respondent was reimbursed on the basis of time for machine operators, semiskilled and common la- borer. The Union proposed the adoption of these classifications, with a 30-cent across-the-board initial increase, which was then substituted with a starting rate and progression after 1, 2, and 3 years. The Union then sug- The parties then reviewed their respective posi- tions on such matters as union security, checkoff, the Union's request for 2 weeks vacation after 15 years, overtime, call in pay, working conditions, ar- bitrations and grievances, and other provisions. Ex- cept for some language changes relative to the matter of arbitration and grievances , it does not ap- pear that any agreement was reached at this meet- in The next meeting was on February 14, and Meyer was not present. Roshto inquired if the Respondent would adhere to its offer of a 7-month contract. White responded that they did not offer a 7-month contract, but merely inquired if the Union would accept a 7-month contract. White then as- serted they were offering a 5-month contract, so that it would expire at the end of the cetification year. White further advised that each succeeding meeting would shorten the length of the term of the agreement. These assertions of Roshto were not disputed by White. White acknowledged advising the Union that Respondent had not changed its position on the wage proposal. White explained that the Respondent was able to fill all of the job openings they had under their current pay scale. White acknowledged Respondent did not modify its position on the Union's request for job classifica- tions, work by supervisory personnel, union securi- ty, seniority, except to the extent it had been par- tially agreed to, arbitration and grievances, vaca- tions, overtime, lunch period, supper period, and allowance for out-of-town work. Relative to an al- lowance of 2 hours reporting time pay, White as- serted that he proposed changes to which the Union would not agree. White acknowledged that Roshto inquired if the Company would agree to notify the Union if a man was discharged or demoted. White asserted that he responded that Respondent had not agreed that all men had to join the Union, and he did not think it was appropriate to place in the contract a provision that Respondent had to notify the Union any time an employee was discharged. Roshto asserted that, in a discussion of working conditions, identified as article IX, section 5, the Union suggested that if employees were sent home, inferentially because of weather conditions , seniori- ty should apply on those retained. He also sug- gested that if no one worked, they should be paid a minimum of 2 hours, because White admitted that they kept the employees 2 hours before they were sent home, to see if it would quit raining. White gested a dropping of the classifications, with the establishment of progres- sion rates. The Respondent asserted that they did not wish to have an established starting rate but wished to determine starting rates on the basis of their evaluation of the individual's ability. Meyer asserted this proposal was made on January 19. I find it unnecessary to resolve this conflict. 27 It is undisputed this provision was agreed to at the subsequent June 8 meeting 2tl I find it unnecessary to resolve a conflict as to whether the meeting lasted 2 to 2-1/2 hours, as asserted by Roshto, or 5-1/2 hours as asserted by Meyer CRESCENT CONSTRUCTION CO. OF SHREVEPORT 583 acknowledged this was the practice but asserted he did not want to put it in the contract . Likewise Respondent acknowledged they furnished all tools and safety devices, but were unwilling to set this forth in the agreement . White's response to these assertions of Roshto was "I don't think I ever said that." On this conflict, I credit Roshto. Apparently the single item agreed to on February 14 was a provision that the Company would furnish and pay for transportation of employees from one job to another . White acknowledged that the meet- ing of February 14 was adjourned at 10:50 a.m. I find it reasonable to infer that it began at 9 a.m., the time set in the correspondance between Meyer and Mahady. The next meeting, in New Orleans, was held on March 31.29 Mahady asserted they went over the various union proposals to determine if there was any change in the position of Respondent on the various items. On the term of the agreement the Union indicated an unwillingness to accept any- thing less than the 1-year contract, while Re- spondent insisted on a limitation to the certifica- tion year. On wages, the Respondent asserted it should have the unilateral right to set wage schedules and reward employees whom they felt were giving them greater production , on a merit ba- sis. On premium time for Sunday and holiday work, the Union modified its request from double time to time and a half, which the Company declined to ac- cept.30 On vacations the Union dropped a request for 3-weeks vacation, and substituted a request for 2 weeks after 15 years of service, which the Com- pany refused to agree to. Mahady asserted there were existing working conditions , listed as article IX in the union proposal, which were existing prac- tices which the Respondent refused to agree to in- corporate in an agreement. In this category, Mahady specified provision for a lunch period, compensation for employees away from home, 2- hour minimum reporting time pay, and Respon- dent's furnishing of necessary tools and safety devices. The Company's position on wage in- creases, union shop, checkoff, and other proposals remained the same. Meyer asserted that in response to Mahady's as- sertion that the Union would not accept a contract for a period of less than 1 year , that he replied that if everything else in the contract was agreed upon, they could reach agreement on the term of con- tract. Meyer asserted that some agreement was reached on the language of the vacation provision, but not the benefits. Meyer asserted that agreement was reached on a provision that the Company would notify the Union, in writing, not later than 3 days, if an employee was suspended or discharged. Meyer asserted that a Respondent proposal relative to subcontracting was agreed to in part, and the same was true of a safety and health proposal and a grievance proposal. The meeting of April 25 was held at the office of Federal Mediation and Conciliation Service, with a conciliator, Robert Berman, in attendance. At the request of Berman, Mahady outlined some 21 items upon which no agreement had been reached includ- ing, inter alia, union shop, checkoff, wages, over- time, seniority, grievance procedure, vacations, Sunday and holiday pay, working conditions, call-in pay, reporting time pay, safety and health, job bidding, relief periods, union functioning, and term of the agreement. Mahady also advised that agree- ment had been reached on the articles covering holidays and benefits. According to Mahady, approximately 1-1/2 hours were used to enlighten the conciliator of the detail of these areas of disagreement. Mahady asserted the conciliator then inquired if the Union would propose a 10-cent increase, checkoff, and a 6- month contract, in order to get negotiations started, during a time when the parties were separated. It is obscure whether this was reported to Respondent. Meyer acknowledged that it was at this meeting that he asserted that the Company would not agree to a contract beyond the certification year, by reason of a serious doubt as to the majority status of the Union. Meyer related this was the first time he had made this assertion.31 Mahady credibly related that he commented, at the end of the meeting, that they had not reached agreement on anything, and that at this point Meyer corrected him to point out that some word- ing changes on items such as holidays and the benefit section had been agreed to. Mahady acknowledged this was correct. The meeting of June 8 was held in Shreveport, with the federal mediator present. Stanford, union counsel, related that agreement was reached on a union-functioning provision, permitting an em- ployee time off to attend union conventions. The agreed-upon provision, relative to union function- ing, together with previously agreed provisions on holidays, preamble, and recognition were initialed '0 I find it unnecessary to resolve the conflict between the assertion of Mahady, that this meeting lasted 2 hours , as compared to that of Meyer, that the meeting lasted 3 - 1/2 hours '0 1 do not credit the assertion of Meyer that he inquired if the Union would accept time and a half and Mahady declined. 31 I have found, supra , in the section headed interference, restraint, and coercion , under Hay, that Hay acknowledged that Furgerson never stated that the other employees were willing to pull out of the Union , but asserted that Furgerson did state that he would be willing to pull out of the Union, "if the rest of them were ." In the light of Furgerson 's denial of the latter statement, I have not found this assertion of Hay credible. More important , however, is the admission of Hay that Furgerson did not say that he knew the others were willing to pull out of the Union. Thus, the effort of Meyer to hinge Respondent's belief of the Union's loss of majority status rests solely on the nebulous alleged conversations between Hay and Furgerson. There is no evidence of substance to support the assertion. It may well be that Respondent believed that if it could cause a defection by Furgerson, the elected shop steward , that the Union would lose its majori- ty. This is, at most, speculation and far removed from the requisite evidence essential to establish the Union 's loss of majority. Furgerson's recitations in this hearing , which I find credible, on the basis of demeanor, create no doubt as to his loyalty at the time of his testimony. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at that time. In addition, a provision for 2-hour re- porting time pay was agreed to and initialed. After determining that Respondent would not modify its position on such matters as overtime, safety and health, rest periods, and job classifications, the Company was requested to state its position on wages . Respondent asserted that its present wages were proper and it would make no offer except the continuation of its present wage scale. Stanford then inquired why the Respondent would not make a wage offer when the employees were being ad- vised, by supervisory personnel, that they would have received a wage increase of 15 cents an hour, except for the Union, and that the employees had lost as much as $400 each, because they had a union representing them. Stanford related that he expressed, as his opinion, that this was bad-faith bargaining, and constituted an effort to coerce and intimidate the employees. Upon inquiry by Meyer, as to the identity of the supervisors and employees involved, Stanford advised Meyer that Hay had been engaged in this conduct. Daniel then proposed a 10-cent across-the-board wage increase, a 1-year contract, checkoff, and union security, and suggested that if agreement could be reached on these items that agreement could be reached on the other items. Meyer inquired relative to Respondent's proposal for a management rights provision, and Daniel responded that he could agree to some of it. Meyer then mentioned work by supervisory employees, and Stanford responded that the Union did not want employees sent home and supervisors put on their work. After a recess, Meyer advised Respon- dent's counterproposal was that wages would remain the same, that the Company would not grant a checkoff or union security, and the contract would have to terminate on July 1, as the Company had bona fide reason to believe that the Union no longer represented a majority of the employees. Stanford credibly related that Meyer stated, "although I have no objective evidence to substan- tiate that the Union does not represent a majority of the employees, it is the Company's opinion that it does "32 The Union held a meeting on June 7, attended by 22 employees. A secret ballot strike vote resulted in 19 in favor, 2 against, and 1 void. The strike com- menced on June 9. It appears undisputed that 6, in a total of 40 or 41 in the unit, reported for work, approximately 2 were ill and the balance, with possibly one exception, remained on strike until its termination, set forth infra. On June 10, Respondent, over the signature of White, issued a notice that the employees on strike could return no later than Tuesday, June 13, after which they were "subject to being replaced." It is obscure whether this notice was posted at the plant, or sent by mail to the individual employees. The notice does contain the statement, "I am writing this letter" to ask the old employees to return to their jobs. On June 12, by way of response to Respondent's notice of June 10, Daniel, west area director of the Union, by letter to White, called attention to the unfair labor practice charges, in Case 15-CA-3068, which had been filed on April 27, alleging viola- tions of Section 8(a)(5) and (1) of the Act, advised that the strikers were unfair labor practice strikers who could not be permanently replaced, and closed with a suggestion that if Respondent would engage in meaningful good-faith bargaining, the present dispute could be easily settled. Stanford credibly related that near the end of the meeting, on June 8, he inquired of Meyer as to why Respondent was meeting with the Union, if it doubted the Union's majority, and asserted that Meyer responded that the only reason he was meet- ing was because of an uncertainty in that area of the law as to his obligation to meet with the Union. In answer to Stanford's further question of whether Respondent would meet with the Union after July 1, if they had not reached agreement by that date, Meyer responded in the negative.33 The last meeting of the parties was on June 20, with the federal conciliator, Berman, present. Stan- ford, upon a late arrival, inquired as to the position of Respondent on the length of contract, assuming ability to reach agreement. Meyer responded that any contract reached must expire on June 30. Stan- ford credibly related that he advised Meyer that he did not come from Atlanta to engage in futile bar- gaining, and inquired if Meyer still doubted the Union's majority. Meyer responded in the affirma- tive. Stanford then called Meyer's attention to the fact that 35 employees were on the picket line. Meyer again asserted his doubt of the existence of a union majority. Stanford then inquired as to Respondent's intent relative to bargaining after June 30, and Meyer declined to indicate what Respondent's position would be at that time. Stan- ford related that after a recess, during which the "Meyer's recitation of the above events does not appear to be at sub- stantial variance with the recitation of Stanford . Meyer acknowledged that Stanford identified Hay as the individual who advised employees they were not receiving more money because of the Union , and who assertedly was attempting to bribe the employees Meyer acknowledged Respondent's re- jection of Daniel 's proposal, as set forth. Meyer, however, acknowledging that he rejected a wage increase and union security , asserted that he offered a package which would include the items previously agreed to, and a checkoff, provided the contract would end with the certification year , 3 weeks away. Meyer acknowledged assert- ing that the Company had a serious doubt as to the majority status of the Union, therefore, they had a right to insist the contract terminate on the certification anniversary date Meyer asserted that an employer had an obligation to its employees, where it felt the majority of the employees no longer wanted a particular union, not to go beyond the certification year. Meyer acknowledged advising the Union that he intended to request a new election , by the Board, after July 1 " Meyer denied the assertion of Stanford that Meyer had stated that he had no objective evidence to support his contention that the Union lacked majority status. On this conflict , I credit Stanford Meyer did not deny Stanford's assertion relative to the Company's intent relative to bargaining after July I, and there has been no meeting since that date. CRESCENT CONSTRUCTION CO. OF SHREVEPORT mediator conferred with the Company , Berman suggested that there was no purpose in continuing the meeting, in view of the Company 's insistence that the contract terminate June 30, and at his sug- gestion the meeting recessed subject to his call."' It is undisputed that , on July 25, Mahady, by letter to White, requested a reopening of negotia- tions. By way of response , on August 3, Meyer, by letter to Mahady, enclosed a copy of his letter to the Regional Director, which he asserted stated that Respondent 's position on the matter of bargaining. In the letter to the Regional Director, of the same date, Respondent acknowledged it had not bar- gained since the termination of the certification year, "for the reason that it has a bona fide belief that this union no longer represents a majority." Respondent then noted that the existence of the within case precluded the conduct of an election. It is undisputed that on August 18 the Union, by its counsel, advised Superintendent Hay that the strike was being terminated and that the employees would offer to return to work , without condition, at the customary starting time on Monday , August 21. It is undisputed that Respondent rehired 10 em- ployees on August 21 , and announced that it would take 10 more the following day, and the balance on Wednesday , and that all were rehired except Lewis and Wallace . The reason for these exceptions is set forth, infra. It is undisputed that, on August 21, the em- ployees, both strikers and nonstrikers , were ad- dressed by White, who advised them that he could not give them everything Roshto had promised them , but that he would place into effect a 20-cent- per-hour wage increase effective September 2. It is undisputed that no notice of this increase was given to the Union . It is undisputed that the wage in- crease was put into effect. White acknowledged receiving a telephone call from Stanford , union counsel, inferentially the same day that Stanford wrote his letter to Hay, with copies to White and Meyer, August 18, at which time Stanford advised White that the employees would report, without condition , at starting time on August 21 . White acknowledged that at that time " Meyer 's version of the events of June 20, as related by Stanford, do not reflect any substantial variance. 's White gave the following explanation of the reason underlying his an- nouncement of the wage increase on August 21. White asserted that the present contract , in the Shreveport area , was signed in 1960 with Southern Bell and that it was a 3 -year contract, with escalation clauses Thereafter, inferentially commencing in 1963 , yearly contracts were negotiated. White asserted that each year, except 1966, Respondent had been able to negotiate price increases , as a result of which Respondent granted across- the-board wage increases. White asserted that in late July or early August 1967 , negotiations for a new contract with Southern Bell were entered into and were concluded in the middle of August. Respondent presented no evidence of the nature or amount of alleged increases received in the new Southern Bell contract White did explain that 80 percent of Respondent's work is classified as "A" work , which is unit price work and is billed at so much a foot or so much a pole , covering 15,000 different items , relating to varying depths, etc. Twenty percent of the work he described as "B" work , which are units 585 he had completed his negotiations relative to the new contract with Southern Bell. White made no reference to the pending wage increase in this con- versation. Concluding Findings Interference, Restraint, and Coercion Solely as background, in accordance with the rul- ing of the Supreme Court in the Bryan case, supra, I have found that shortly after the election, in July 1966, White advised the assembled employees that he wanted them to know how he felt about the Union, that whatever steps the Union took his work was still going on, and, inferentially, that if they went on strike he could replace them. White then advised the employees that in 1960 when the New Orleans operation was organized , White attended the bargaining meetings , and after a year the Union "just faded away." While White made a speech on the day following each negotiating session , except January 20, the complaint and the evidence are addressed to speeches made on April 26 and May 9. I have found that in both of these speeches White asserted that in the negotiations with the Union the Com- pany had not agreed to anything, and did not in- tend to agree to anything, with emphasis on its refusal to agree on provisions for union shop and checkoff. White admittedly advised the employees on April 26 that there were 25 different items on which the Union and Respondent had not agreed. White admittedly advised the employees that Respondent was required, under Federal law, to bargain with the Union for the period of 1 year, that the year would end on July 1, that after July 1 there would be another election , that if the Com- pany won the next election they could then deal directly with the employees, that White knew that the biggest majority of the employees made a mistake in voting for the Union, but that he be- lieved that after the next election the big majority would vote for the Company, and that if the em- ployees went on strike they would be replaced and on which it is impossible to establish a price , which includes insurance, so- cial security , and all other expenses, and is billed on a flat price based on common labor, another price on semi-skilled labor, and another price for foreman . In addition , Respondent bids on specific projects, inferentially emergency work created by hurricanes, etc This recitation , of White, of the past practice of granting annual across- the-board wage increases , is at variance with Respondent 's insistence dur- ing negotiations that it should be permitted to continue an alleged past practice of granting merit increases . While Meyer asserted that he was "in- formed" Respondent had a policy of merit increases, and when the Com- pany obtained an improvement "in the consideration which it receives from Southern Bell" it would normally grant an annual wage increase, I do not credit this recitation It appears, at best, to be an opinion, not based on a study of the background facts The best evidence , company records of previous increases , was not presented To the extent Meyer's assertions would vary those of White , relative to past practice, White would appear to be in a position to have knowledge of the facts 586 CRESCENT CONSTRUCTION CO. OF SHREVEPORT would then lose their jobs because of replacements. On May 9 , White again advised that nothing had changed in his negotiations with the Union, that he would have to deal with the Union until July and could not deal with the employees until after that, when they would have another election , that he could not fire employees because of the Union, but could replace them , and would not lose a day's work if they went on strike. Respondent contends that White 's utterances were protected under Section 8(c) of the Act.36 I am unable to agree. The Board has held that threatening employees with replacement and impairment or loss of existing rights and job tenure , if they engage in concerted activities protected by the Act , is conduct violative of the provisions of Section 8(a)(1). Rice Lake Creamery Company, 131 NLRB 1270, enfd. 302 F.2d 908 (C.A.D.C.); International Telephone and Telegraph Corporation , 166 NLRB 592. I also find that White 's advice to the employees on April 26 and May 9 that he was required, by law, to continue going through the motions of bar- gaining until July 1, after which he could obtain a new election and could deal with the employees in- dividually if the Company won that election, was coercive , at least to the extent that it was intended to convey to the employees the futility of their representative 's efforts, and , in turn , the futility of the employees ' action in selecting the Union. This futility was demonstrated by White 's expressed in- tent not to agree to a union shop , checkoff, and, in- ferentially , many of the other conditions set forth supra , on which the parties had reached no agree- ment in six bargaining sessions preceding the April 26 speech. Accordingly , to the extent White's speeches of April 26 and May 9 were coercive they constituted interference , restraint , and coercion , and were violative of the provisions of Section 8(a)(1). Next considered are the allegations which relate to unlawful interrogation. I have found, supra, that Hay sought the assistance of Furgerson to speak to other em- ployees in an attempt to dissuade them from con- tinuing their union activities, and thereafter questioned him as to whether he had talked to other employees . Hay also advised Furgerson that everything they had discussed had been written down by Hay and was being kept in his desk. Hay also interrogated Furgerson as to "what started all this mess." There can appear little doubt that Hay's conversations with Furgerson in April were the basis upon which Respondent sought to question the continuance of the Union 's majority status, as more fully set forth in paragraph 29 of Respon- dent's answer. I have found that Hay interrogated Bruton in mid-April relative to whether the em- ployees were going to go on strike . Hay also inter- rogated Lewis, in the presence of Wallace and Wesley, relative to their knowledge of the Union's activities. I have found, supra, that Foreman Guice inter- rogated Wallace in November relative to his at- tendance at union meetings , or visits by union representatives at Wallace 's home. I have also found that Guice in January again interrogated Wallace and advised him the best thing for all the employees to do was to get together and go down and tell the Union they did not want the Union and that they were through with it. I have found that Guice in April interrogated Wallace relative to Wallace's knowledge about the Union calling a strike and Wallace's attendance at union meetings. Foreman Juchartz acknowledged inquiring of Bryant on April 20 whether Bryant was going out on strike with the other employees. I have found, supra, that in February 1967 White inquired of Wesley how he was coming along with the Union. Immediately thereafter, Emmons made a similar inquiry of Wesley, and advised Wesley that Wesley had "fouled himself up" by becoming involved in the union activity. I have found, supra, that in November 1966 Harlan advised Wesley that Wesley had "fouled himself up" by becoming in- volved in the Union, and threatened to replace Wesley with a nonunion driver. I have also found that in April 1967 Harlan interrogated Lewis as to his attitude toward the Union. In the Blue Flash case37 the Board held that inter- rogation of an employee as to union membership, activities, and desires is not per se unlawful. The Board, in that case found legitimate reason for inquiry, which was conducted with appropriate safeguards. The Board held that the test is whether, under all the circumstances , interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. In the Johnnie's Poultry case38 the Board stated: The purposes which the Board and courts have held legitimate [permitting interrogation] are of two types: the verification of a union's claimed majority status to determine whether recognition should be extended ... and the in- vestigation of facts concerning issues raised in a complaint where such interrogation is neces- sary in preparing the employer 's defense for the trial of a case. Prior to the Blue Flash case, all interrogation was held to be per se unlawful. As stated in the decision in the Johnnie's Poultry case, that holding has been -" Section 8 ( c) provides "The expressing of any views , argument, or " Blue Flash Express, Inc., 109 NLRB 591 opinion , or the dissemination thereof, whether in written , printed, graphic, 3' Johnnie 's Poultry Company, 146 NLRB 770, 775. or visual form , shall not constitute or be evidence of an unfair labor prac- tice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit " CRESCENT CONSTRUCTION CO. OF SHREVEPORT 587 modified to permit legitimate inquiry, where legiti- mate inquiry as essential and proper safeguards are established . Herein the incidents related are not isolated but are indicative of the employer hostility to union organization. No claim of legitimate pur- pose for inquiry has been advanced , rather Respon- dent has relied upon denial of most of these events. I have found the denials untenable . Respondent would rely on instructions it purportedly issued, through its counsel , in June 1966 and again in early 1967, to supervisory personnel, to the effect that they were not to engage in interrogation relative to union activities . Meyer asserted he advised the em- ployees in June 1966 that only White and Hay were authorized to speak for Respondent in regard to matters involving the Union .a Respondent also as- serts that only two, of some eight or nine foremen, are shown by the testimony to have engaged in this activity . Respondent neglects to note that both owner White and Superintendents Hay and Em- mons, and Harlan , engaged in the complained of conduct. In the light of the credible evidence herein , Respondent's instructions, if issued, were honored only by their breach. Respondent's efforts, in its brief, to characterize these acts of interroga- tion as unauthorized expressions of opinion by su- pervisory personnel, and as isolated statements, must likewise be rejected . Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439, 1442; Sa- lant & Salant, 92 NLRB 417, 423. Respondent's effort to characterize the inquiries relative to the potential strike as a rumor initiated by the Union in April must also be rejected. Respondent's contention is that the Union initially disseminated information about possible strike ac- tion and that the employer's inquiries were a mere repetition of the same information .40 This record reveals no strike vote or action having been taken in April , or any evidence that the employees were aware of any representation which may have been made by Roshto to McKinney. I find it unnecessary to determine if these unlawful inquiries constituted an impression of surveillance, since such a finding would be cumulative to others, set forth, infra. The Board has found interrogation of employees about when a strike would start, and their intent relative to participation , violative of Section 8(a)(1). Florida Citrus Canners Cooperative, 124 NLRB 1182, 1208-09. Absent requisite safeguards or purpose , I find the interrogation complained of was coercive and thus constituted interference , restraint, and coercion and, in each instance , was violative of the provi- sions of Section 8(a)(1) of the Act. In addition, I find that Hay's effort to obtain Fur- gerson 's assistance in soliciting other employees, in an attempt to dissuade them from further union ac- tivity; Hay's follow up with Furgerson to ascertain if Furgerson had talked to other employees; the representation of Hay to Lewis, Wallace, and Wesley that the employees had not received a 15- cent pay raise solely because they had engaged in the union activity; the advice of Foreman Guice to Wallace that the best thing for all the employees to do was to get together and go down and tell the Union that they did not want the Union and that they were through with it; the threat of Foreman Juchartz to Bruton, in the presence of Davis, that it would be July before the employees would receive a raise ; Juchartz' assertion that each employee had lost $400 because of the Union; the advice of Em- mons to Wesley that Wesley had "fouled himself up"; and the advice of Harlan to Wesley that the Respondent in the future would send a nonunion man on trips previously made by Wesley, all of which is more fully set forth supra, were, I find, in each instance , conduct constituting intimidation and coercion, thus, interference, restraint, and coercion, and violative of the provisions of Section 8(a)(1). I have found, supra, that Guice, during an inter- rogation of Wallace, advised Wallace that Caldwell could not have picked up Wallace to take him to a union meeting because Caldwell was not for the Union. General Counsel correctly urges that this created the impression of surveillance and was thus violative of Section 8(a)(1) of the Act. I find ac- cordingly. In arriving at my findings on credibility herein, I have considered, in addition to the observations made supra and, infra, relative to specific witnesses, the demeanor of the witnesses, the interest or lack thereof each may have in the outcome of the litiga- tion, the self-contradictions and inconsistencies in the statements of witnesses, candor or lack thereof, the reasonable probability or improbability of the recitations, and the failure to refute opposing testimony. The Refusal to Bargain The Supreme Court has held that the Board may not, either directly or indirectly, compel conces- sions or otherwise sit in judgment upon the substan- tive terms of collective-bargaining agreements. In so finding, the court called attention to the express provision of Section 8(d) that the obligation to bar- gin collectively does not compel either party to agree to a proposal or require the making of a concession. N.L.R.B. v. American National In- surance Co., 343 U.S. 395, 404. The Supreme Court has held: It is apparent from the legislative history of the whole Act that the policy of Congress is to im- s. While Furgerson could not recall this statement at any time , Davis first heard it in October 1967 . 1 find resolution of this conflict unnecessary. '0 Citing Midwest Timer Service, inc , 163 NLRB 810 (TXD ), wherein the Respondent was found to have repeated, in the words of the Board, matter which was "common knowledge." 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace .41 Discussion con- ducted under that standard of good faith may narrow the issues, making the real demands of the parties clear to each other , and perhaps to themselves , and may encourage an attitude of settlement through give and take . The main stream of cases before the Board and in the courts reviewing its orders , under the provi- sions fixing the duty to bargain collectively, is concerned with insuring that the parties ap- proach the bargain table with this attitude. [N.L.R.B. v. Insurance Agents' International Union , 361 U.S. 477, 488.] In the Herman Sausage case42 the court observed that there is a duty on both sides, but difficult of legal enforcement, to enter into discussion with an open and fair mind and a sincere purpose to find a basis of agreement. The Board has distinguished between what is described as a course of hard bargaining, in the absence of evidence of other conduct violative of the Act, which might support a complaint as to Respondent's alleged overall bad faith. Dierks Forests, Inc., 148 NLRB 923, 930. In the General Electric case' the Board rejected the contention of Respondent therein that it could not be found guilty of having violated its statutory bargaining duty where it met and conferred with the bargaining representative on all required sub- jects of bargaining, had not taken unlawful uni- lateral action , and had not demanded the inclusion of any illegal clauses or insisted to an impasse on any nonmandatory bargaining provisions. The Board noted that an employer does violate Section 8(a)(5) where it enters into bargaining negotiations with a desire not to reach an agreement with the union , or has taken unilateral action with respect to a term or condition of employment. The Board then stated that even though an employer may have refrained from improper conduct, an employer may still have failed to discharge its statutory obligation to bargain in good faith . The Board said: a party who enters into bargaining negotiations with a "take-it-or-leave-it" attitude violates its duty to, bargain although it goes through the forms of bargaining , does not insist on any il- legal or nonmandatory bargaining proposals, and wants to sign an agreement . For good-faith bargaining means more than "going through the motions of negotiating." ". . . the essential thing is rather the serious intent to adjust dif- ferences and to reach an acceptable common ground ...." [Citations omitted.] I have found , supra , that prior to the commence- ment of the 10(b) period, shortly after the election, in July 1966, White advised the assembled em- ployees that a similar effort by a union in New Or- leans had resulted in a long term of negotiations, after which the Union walked away from the table, and Respondent never heard from them again. At the same time White advised the employees that if they went on strike they would be replaced, and Respondent would continue operations . In Sep- tember 1966, without notice to the Union, Respon- dent granted wage increases in the amounts of 20 and 25 cents an hour to four employees. These matters are considered merely as background, and not as violations within the meaning of the Act. Immediately after the first negotiating session, which was held on November 1, 1966, Respondent sought, unsuccessfully , to challenge the integrity and competence of the collective-bargaining representative by asserting it was in the untenable position of representing employees of Southern Bell, in an effort to foreclose Respondent 's opera- tions, thus, by reason of a "conflict of interest, it could not serve two masters with conflicting in- terests . While this contention was rejected by the Regional Director as being without merit, the record is obscure as to whether Respondent's em- ployees were apprised of it . Respondent then en- gaged in a total of eight negotiating meetings, in the period between November 1, 1966, and June 20, 1967, of varying periods of time, during which the sole areas of agreement related to existing condi- tions on holidays and insurance benefits, coupled with an agreement on the preamble , recognition clause , and, after many rejections, an agreement, on June 8 relative to an existing condition of 2 hours reporting time pay. Throughout the negotiations, Respondent refused to make any offer relative to wage increases , except an insistence that it be permitted to grant merit in- creases in whatever amount and at whatever time it chose . Respondent's insistence that this was in ac- cord with past practice conflicts with the record which indicates a past practice of across-the-board increases, inferentially when new contracts with Southern Bell were negotiated . Simultaneously, through its superintendent and foremen , Respon- dent was advising the employees that if they had not selected a union they would have received a 15- cent-per-hour increase and that each had lost the equivalent of $400. Contrary to its adamant posi- tion of no wage increase during negotiations, without notice to the Union, at the time the strikers reported for reemployment, on August 21, White announced to the assembled employees that he could not provide the employees with everything Roshto promised, but would place into effect a 20- cent-per-hour across-the-board increase effective September 2. It is difficult to perceive a more blat- Citing N.L R.B. v Jones A Laughlin Steel Corp , 301 U S 1, 45 " N L R B v. Herman Sausage Company, 275 F 2d 229,231 (C.A. 5). 43 General Electric Company , 150 NLRB 192, 193-194. CRESCENT CONSTRUCTION CO. OF SHREVEPORT 589 ant disregard of the rights of the employees to be represented by a collective -bargainin* representa- tive of their own choosing . It is also difficult to en- vision a more potent disparagement of the Union, whom the employees had selected. With no evidence to support its contention, in- sofar as this record reveals , Respondent on April 26 in effect advised the employees that it did not in- tend to bargain in good faith, that it did not intend to reach an agreement with the Union, that at the end of the certification year there would be a new election, and that Respondent hoped, at that time, the employees would reject the Union and not re- peat the "mistake" the employees had made earlier in selecting the Union as their collective-bargaining representative . The fact that Respondent continued to go through the motions of collective bargaining, on June 8 and June 20, I find of no consequence. While Respondent denies, as asserted by the Union, that it challenged the Union's majority as early as January, there can be no question that throughout the negotiations Respondent insisted on the limitation of any contract term to a term which would end July 1, the end of the certification year. This position was reaffirmed on June 8 and 20. I find of no consequence Respondent 's assertions that if offered for bargaining purposes a 6- or 7- month contract in January , or the assurance of Meyer that if everything else was agreed to, there would be no difficult in arriving at a satisfactory contract term . In so finding, I am not unmindful of the fact that, after each negotiating session, Respondent was advising the employees, in em- ployee meetings, that it had not agreed to stated union proposals and did not intend to agree. The record is replete with Respondent's rejection of any proposed improvement in such matters as overtime, vacations, working conditions , grievances, and ar- bitrations, as well as other proposals. The recited evidence can only permit a conclusion that Respon- dent did not approach the bargaining table with a genuine desire to find a basis for agreement but, on the contrary, was engaging in bad-faith bargaining. It has been observed: [I]f an employer can find nothing whatever to agree to in an ordinary current-day contract submitted to him, or in some of the union's related minor requests, and if the employer makes not a single serious proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith , that is, a desire not to reach an agreement with the union. In other words, while the Board cannot force an employer to make a "concession" on any specific issue or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union , if § 8(a)(5) is to be read as imposing any substantial obligation at all. [N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131 , 134-135 (C.A. 1).] Accordingly , for the reasons stated , I find that Respondent's failure and refusal to engage in good- faith bargaining , and its granting of a 20-cent-per- hour wage increase in September 1967, without notice to the Union, were, in each instance , viola- tive of the provisions of Section 8(a)(5) of the Act. Under the circumstances, and in the light of the foregoing findings, I find that the strike, which commenced June 8, 1967, and terminated August 21, 1967, was an unfair labor practice strike. The Failure of Respondent to Reinstate Eugene Lewis and Robert Wallace on August 21 and Their Subsequent Termination It is undisputed that when the strike terminated on August 21, Lewis and Wallace were denied rein- statement. General Counsel contends this denial was discriminatorily motivated . Respondent con- tends the denial of reinstatement, and acknowledged discharge thereafter , resulted from acts of violence during the strike. The confused recitation of alleged facts , by the witnesses for General Counsel and Respondent , are next set forth. It is undisputed that on August 15, between the hours of 7 and 8 p.m., three employees of Respon- dent who had been hired during the strike were en- gaged in digging for a broke cable at a place identified as being on Jefferso Page Road. These employees are identified as Willie Young, Frank Howsley, and Richard Morris 44 Lewis was a picket captain during the strike . On August 15, the day of the incident, it may be inferred that there was some picketing at Respondent's plant and, inferentially, at some of the worksites; however, there had been no picket or picket signs, insofar as this record reveals, at the Jefferson Page Road location where the incident took place. It appears undisputed that , with Lewis driving, Lewis and Wallace approached the worksite, stopped , and without getting out of the car, inquired if the employees were working all night. One of the workers responded that they were wait- ing for Foreman Fox to come back and pick them up. This event was approximately at 7 or 7:30 p.m.45 According to Lewis, whom I do not credit, he and Wallace drove to a service station , obtained a picket sign , which, inferentially , was placed in the trunk of the car, and returned to the worksite with Clarence Jones in the back of the car. Lewis as- serted he parked at the worksite , got out of the car, walked back to the trunk, and heard a sharpshooter hit the tire about 3 feet from where he was stand- " Morris did not appear as a witness Respondent asserted Morris was no longer in its employ and was no longer a resident of Shreveport " I find of no consequence the assertion of Howsley that Lewis and Wal- lace stopped twice and drove away twice before the incident 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing.48 According to Lewis, Wallace at that time got out of the car and a sharpshooter was thrown in his direction, and the two employees who had been on top of the bank , Howsley and Morris, started running up the street. Wallace , according to Lewis, broke the end off the sharpshooter , by hitting it against the ground , and, with the handle in his hand , started chasing Howsley and Morris , return- ing after he had gone only a few feet . Meanwhile, Young, who had been digging in the ditch , started to climb out and, according to Lewis and Wallace, fell back into the ditch, although nothing was thrown at him. Lewis asserted that no one had said anything during this entire period of time. Wallace corroborated the recitation of Lewis. It is un- disputed that Young did not throw either sharpshooter . Wallace , at variance with Lewis, as- serted after the first sharpshooter was thrown, one of the employees, unidentified, hollered, "You get the hell away from here."47 It is undisputed that Jones, at all times , remained in the car and did not participate in the incident. Howsley, whose assertions I find only partially credible , asserted that as Lewis got out of the car he obtained a pasteboard box containing bottles from behind the driver 's seat.48 Howsley asserted that Lewis again asked the same question as to when they were going to finish working and that he responded as soon as Foreman Fox came- back. Lewis then started cussing Young and advised Young, "Better get his god damn a- out of that hole," and started throwing bottles , inferentially at Young. Howsley asserted that he and Morris started to run when Lewis started throwing the bottles from 15 to 20 feet away. Howsley related that at this point, Wallace got out of the car and started running up the road after them , but did not follow them more than 10 to 15 feet . Howsley described the bottles as hitting a fence which was adjacent to the worksite, and hearing them as he was running up the road. Howsley then stated that he was at a house 15 or 20 yards up the road, when he heard Wallace beating the sharpshooters on the ground .49 I do not credit Howsley's assertion that neither he nor Morris threw a sharpshooter. Willie Young, whose recitation I find credible, related that he was working in the ditch , with his back to the car, when he heard the expression which Howsley attributed to Lewis and bottles commenced flying. Young acknowledged he did not know who was throwing the bottles. Young climbed out of the hole, ran about 4 yards, fell, and lost one of his shoes . After he got up, he was struck in the back, on the right side , and again on the left side . At that time Howsley and Morris had already run up the road ahead of him . Young did not see any bottles, but the sound of something hitting the ground sounded like bottles to him. Young acknowledged he did not know if anything had been thrown at the car as his back was turned toward the highway. Young and Howsley described a 2-inch cut below Young 's right shoulder and a knot under the left shoulder . Howsley described seeing Young's back when the sheriff pulled up Young's shirt and lit it with a flashlight.50 Shortly after the above incident, Lewis and Wal- lace were apprehended by the sheriff, identified by the workers, and placed under arrest. It is un- disputed that Lewis and Wallace were charged with aggravated assault , and, after a trial on October 6, 1967, in the First District Court, Parish of Caddo, State of Louisiana , were found guilty of having as- saulted Willie Young with a dangerous weapon, to wit: a bottle , on October 31. They were each fined $50 and costs.st I find it unnecessary to determine whether Wal- lace broke one sharpshooter , as related by Wallace, or three sharpshooters, as inferred by Howsley. It appears undisputed that Lewis and Wallace ap- peared with the other striking employees seeking reemployment on August 21. They were not among the 10 selected for reemployment on that date, or the 10 in the following date , or the balance, who were reinstated on Wednesday , August 23. On Au- gust 23 , and again on August 28, Superintendent Hay advised Lewis and Wallace that he would call them and let them know when he was ready to put them back to work . On September 26, 1967, by separate letters to each, Hay advised Lewis and Wallace that they were being discharged by reason of their having engaged in violence during the strike . It is undisputed that Jones, who was in the car at the time of the incident, was reemployed. Concluding Findings General Counsel correctly urges that unfair labor practice strikers are entitled to reinstatement, when a strike is terminated and they have made an un- conditional request for reinstatement . 52 Respondent correctly asserts, as an exception to the foregoing rule, that an employer is not required to reinstate " A sharpshooter is described as a long-handled, spade-type of shovel. "Wallace was self-contradictory in also asserting that nothing was said prior to the time the second sharpshooter was thrown " I do not credit the assertion of Wallace that there were no bottles in the car. " Howsley was inconsistent in asserting that Lewis was obtaining the bot- tles one at a time , and also that he had the box of bottles in his arm when he was throwing the bottles. " I do not credit Howsley 's assertion that he saw the imprint of the neck of the bottle on Young's back , particularly since he stated , "it was the neck of the bottle that hit him , or the bottom of the bottle, but you could see the imprint of the bottle." Si The denial of Lewis that he threw any bottles , and Wallace's cor- roboration of that assertion , are not credited. " Mastro Plastics Corp v. N.L.R.B., 350 U.S. 270. CRESCENT CONSTRUCTION CO. OF SHREVEPORT strikers who engaged in violence during the strike.53 I have found, supra, that Lewis and Wallace did en- gage in violence during the strike , as set forth infra. General Counsel and Charging Party, in their respective briefs, contend that the doctrine of con- donation is applicable, by reason of Respondent's retention , or reinstatement, of others who engaged in misconduct . The facts relative to these conten- tions are next considered. It is undisputed that Jones , who remained in the automobile of Lewis throughout the incident of Au- gust 15 , was reinstated. I credit the explanation of White that there was no evidence that Jones had in any manner participated in the violence, and it was for this reason that Jones was reinstated . It is un- disputed that during the strike , on an unspecified date , under unspecified circumstances, some violence occurred which resulted in the arrest of Union President Roshto and Union Steward Furger- son. These charges are still pending and there had been no trial up to the time of the conclusion of the hearing herein . The explanation of White relative to the reason for the rehiring of Furgerson , which I credit, was that there were two men in the car with Roshto and White was advised that neither Furger- son nor the other individual engaged in whatever violence occurred at that time . There is no evidence in conflict with the assertion of White. Both General Counsel and Charging Party assert, in their briefs , that the retention or reinstatement of Furgerson was related to Respondent's hope that Furgerson would supply it with the evidence it desired relative to the loss of the Union 's majority. While there may be truth in these assertions they are not relevant to the question of whether the refusal of reinstatement , and subsequent discharge, of Lewis and Wallace was either discriminatorily motivated, or whether the retention of Furgerson constituted condonation. I am unable to agree with the assertion of General Counsel that the Posner case54 supports his contention of condonation , where an employer chooses to reinstate one employee and denies rein- statement to another, where they were engaged in similar acts of misconduct. In the Posner case the Board denied reinstatement to two employees who had personally offended and assaulted the pre- sident, even though another employee guilty of as- sualt had been reinstated. I find no merit in the contentions of the Charging Party (a) that White did not specifically exclude Lewis and Wallace when advised by Charging Par- ty's counsel on August 18 that all striking em- 88 Respondent cites : Rubin Bros. Footwear, Inc, 99 NLRB 610, 611, in which the Board stated: We are now of the opinion that the honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such em- ployees, unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established, the General Counsel must go forward with evidence to prove that the 591 ployees would apply for reinstatement on Monday, August 21; (b) that on August 21, Superintendent Hay advised Lewis and Wallace to return on Wed- nesday; and (c) that on August 23 and 28, Hay stated only that he would advise them when he needed them, failing to state that they would not be returned to work. These failures would be signifi- cant only in the absence of evidence of misconduct. I also find no merit in Charging Party's contention that Respondent waited until September 26 to ad- vise Lewis and Wallace of their discharges. Charg- ing Party proceeds on the premise that Lewis and Wallace were offered reinstatement. It would require a strained view of the facts to arrive at such a conclusion. It is reasonable to infer that White or Hay on August 21 advised those who were not on the list for that day, or the following day, to return on Wednesday. At no time were either Lewis or Wallace advised that they were being reinstated. I find Charging Party's reliance on the cases cited misplaced, and I find that those cases are inap- posite.55 I also find no merit in Charging Party's contention that the doctrine of equitable estoppal should apply, by reason of the failure of Respon- dent to advise the Union of these exceptions when it assertedly advised the Union that all of the em- ployees would be reinstated. Accordingly, having found that Lewis and Wal- lace were engaged in violence during the strike, and that it was for this reason that Respondent failed and refused to reinstate them, and later discharged them, I find that said conduct was not violative of the provisions of Section 8(a)(3) and (1), as al- leged, and I will recommend dismissal of the allega- tions of paragraphs 16, 17, 18, and 28 of the com- plaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain employees did not, in fact, engage in such misconduct The employer then, of course, may rebut General Counsel's case with evidence that the unlawful conduct actually did occur. At all times, the burden of proving discrimination is that of the General Counsel. S4 I Posner, Inc, 140 NLRB 1313, 1315 " Sea View Industries, 127 NLRB 1402, N.L.R.B v. Anchor Rome Mills, Inc, 228 F.2d 775 (C.A 5), Alabama Marble Co., 83 NLRB 1047, 1048. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affirmative action designed to effectuate the poli- cies of the Act. It will be recommended that Respondent, upon request, bargain collectively with Communications Workers of America , AFL-CIO, as the exclusive representative of all employees in the unit herein found to be appropriate for the purpose of collec- tive bargaining , with respect to rates of pay, wages, hours of employment , and other terms and condi- tions of employment. It is further recommended that Respondent be ordered to cease and desist from in any like or re- lated manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: Conclusions of Law 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All general laborers, truckdrivers, and mechanics , employed by Respondent at its Shreveport , Louisiana, operation , excluding office clerical employees, professional employees , guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. The Union has been the exclusive representa- tive of all employees for the purposes of collective bargaining in the aforesaid unit , within the meaning of Section 9(a) of the Act, on and after July 1, 1966. 5. By unilaterally granting a wage increase on September 2, 1967, and by failing and refusing to meet and bargain , in good faith, on and after November 1, 1966, with the Union as the exclusive collective -bargaining representative for the em- ployees in the appropriate unit described herein with respect to rates of pay, wages , hours of em- ployment, and other terms and conditions of em- ployment, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a)(5) of the Act, and has thus interfered with , restrained , and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act, and has thus engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coer- cion," to the extent therein found, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 7. By failing and refusing to reinstate Eugene Lewis and Robert Wallace on August 21,'1967, and by discharging them on September 26, 1967, Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case , I recommend that the Respondent, Richard E. McMahon and C. D. White , Jr., d/b/a Crescent Construction Company of Shreveport, its agents, successors , and assigns, shall be ordered to: 1. Cease and desist from: (a) Failing and refusing to bargain collectively, in good faith, with Communications Workers of America, AFL-CIO, as the exclusive bargaining representative of all its employees constituting the unit herein found to be appropriate for the pur- poses of collective bargaining, or by unilaterally granting wage increases, without notice to or bar- gaining with the Union. (b) Interrogating any of its employees concern- ing organizational activities, or threatening economic retaliation if any employee engages in such activity , or creating the impression of surveil- lance of the employees organizational activities in a manner constituting interference , restraint, or coer- cion in violation of the provisions of Section 8(a)(1) of the Act. (c) Interfering with , restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by granting them economic benefits, or by changing the terms and conditions of their employment ; provided, however, that nothing in this Recommended Order shall be construed as requiring the Respondent to vary or abandon any economic benefit or any term or condition of em- ployment which it has heretofore established. (d) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the right of self-organization , to form labor organizations , to join or assist the above- named Union , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in any other con- certed activity for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively, in good faith, with Communications Workers of America, AFL-CIO, as the exclusive bargaining representa- tive of all of its employees in the aforesaid ap- propriate unit, and, if an understanding is reached, CRESCENT CONSTRUCTION CO. OF SHREVEPORT 593 upon request, embody such understanding in a signed agreement. (b) Post at its plant in Shreveport, Louisiana, co- pies of the attached notice marked "Appendix. "se Copies of said notice, on forms provided by the Re- gional Director for Region 15, after being duly signed by the Respondent 's representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that unless within 20 days from the date of the receipt of this Trial Examiner's Decision, the Respondent shall notify the said Regional Director , in writing, that it will comply with the foregoing Recommended Order,57 the National Labor Relations Board issue an Order requiring Respondent to take the aforesaid action. IT IS FURTHER RECOMMENDED that the allegations of paragraphs 13(g), 16, 17, 18, 19(e), 25, and 28 of the complaint be dismissed. i" 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 an Order " shall be substituted for the words "a Decision and Order." s' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES mechanics, employed by Respondent at its Shreveport, Louisiana, operation, exclud- ing all office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally grant wage in- creases without notice to or bargaining with the Union. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act by granting them economic benefits or by changing the terms or conditions of their employment without notice to or bargaining with the Union. WE WILL NOT interrogate any of our em- ployees concerning their organizational activi- ties, or threaten economic retaliation if any employee engages in such activity, or create the impression of surveillance of the employees, organizational activities in a manner constitut- ing interference, restraint, or coercion in viola- tion of the provisions of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-or- ganization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. RICHARD E. MCMAHON & C. D. WHITE, JR., D/B/A CRESENT CONSTRUCTION COMPANY OF SHREVEPORT (Employer) Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively, in good faith, with Communications Workers of America, AFL-CIO, as the exclusive representative of the employees in the ap- propriate unit described below , with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is: All general laborers , truckdrivers, and Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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 527-6391. 354-126 O-LT - 73 - pt. 1 - 39