James Ray Co., Inc.

JAMES RAY CO. James Ray Company, Inc. and Glaziers Local No. 558, affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union No. 201, Party to Contract James Ray Company, Inc. and Thomas Hallacy. Cases 17-CA-3573 and 17-CA-3608 May 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On December 9, 1968, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support thereof. The Respondent, in addition, filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and answering brief of the Respondent, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 'The Respondent has excepted to certain credibility resolutions made by the Trial Examiner. It is the Board 's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). The Respondent contends that since Mr. and Mrs. Ray were on vacation away from the plant between May 8 and 22, they did not learn of Beltz' interim activities on behalf of the Glaziers until May 25, 2 days after Beltz was discharged . Like the Trial Examiner, who discredited the Respondent's denials of knowledge with respect to Beltz' union activities, we find no merit in this contention . Rather we note that the Trial Examiner 's findings in this regard are buttressed by Ray's admission that, although absent from the plant, "We called the office periodically to keep abreast of what was going on." Ray's testimony was corroborated both by Mrs. Ray and by James Ray, Jr. ORDER 31 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that " the Respondent, James Ray Company, Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Add the following as the last indented paragraph of the notice: WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. MEMBER BROWN, dissenting in part: In my view, Ray discharged Hallacy for asserting protected rights under the operative contract and not for the reasons claimed by the Respondent.' I would find, therefore, that Hallacy's discharge violated Section 8(a)(3) and (1) of the Act. 'Cf. Thor Power Tool Company, 148 NLRB 1379 (1 dissented on other grounds). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE These matters were heard before Trial Examiner Sidney J. Barban at Wichita, Kansas, on August 28 and 29, 1968, upon a consolidated complaint issued on July 25, 1968, based upon charges filed on May 27, and July 8, 1968, alleging that the above-named Respondent had violated Section 8(a)(1), (2), and (3) of the Act. Respondent's answer to the complaint, as amended, admitted allegations in the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board, and to support findings that the Charging Party in Case 17-CA-3573 (herein called the Glaziers), and the Party to Contract in that case (herein called Carpenters Local 201 or Local 201) are labor organizations within the meaning of the Act. The answer denies the commission of any unfair labor practices. Upon the entire record in this case,' from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE ALLEGED UNFAIR LABOR PRACTICES The Facts A. Respondent's Relationships with the Carpenters The Respondent, located at Wichita, Kansas, fabricates and installs sliding glass doors, principally as part of the 'Certain errors in the transcript have been noted and corrected. 176 NRLB No. 2 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construction industry. It is owned by James Ray (herein called Ray) and his wife. They are assisted in the operation of the business by their son, James Ray, Jr., (herein called James Ray) and by a shop foreman, Richard Parsons. In addition, at times material herein, Respondent employed a small work force , consisting of two to three full time workmen and one part time worker. In early 1967, when Respondent's nonsupervisory work force consisted of Robert Beltz, Thomas Hallacy, and part-time worker Paul Powers , a business representative of the Glaziers, Jack Zander, attempted to organize the employees. Beltz, who is alleged to have been discriminatorily discharged thereafter, was active in this effort. After Zander talked to the employees, they spoke to Ray about this. Ray told them that he did not favor their affiliation with the Glaziers, because he thought that this would "take the personal ownership out of his business and he didn't like anyone running his business." The employees decided to accede to Ray's wishes and continue without the Glaziers. Shortly thereafter, Ray was advised that Respondent would not be permitted to complete work on a project in Topeka, Kansas, unless union men were furnished for the work. Ray thereupon met with a business representative of Carpenters Local 1445 in Topeka and agreed to sign a collective-bargaining contract with that union . Though Respondent thereafter signed the agreement, Ray testified that the business representative of Local 1445 told him that it was not necessary to apply the economic terms of that contract to his employees (assertedly on the basis that Respondent's current conditions of employment were equivalent to the contract terms), and Respondent did not apply those contract terms to the employees. After meeting with the business representative of Local 1445, Ray met with Beltz and Hallacy, explained the necessity of having union workmen on the Topeka job and advised that he had made arrangements for them to be sworn in as members of that union. When the two employees objected to this procedure, Ray pressed them to accede to his desires, advised that they "would not be sorry," if they did so, and told them that he would give them a check in payment of their initiation fees and dues to take to the union. Both men agreed that they would join the union as Ray requested. Thereafter, both Hallacy and Beltz went to the offices of Local 1445, in Topeka, and delivered Respondent's check, in the approximate amount of $280, in payment of their initiation fees and 1 month's dues. They were given work permits and told to return to be sworn in as union members . Neither man was sworn in, however, although they completed the Topeka job. Beltz and Hallacy were engaged in another job, this time in Wichita, Kansas, when Hastings, the business agent of Carpenters Local 201, of Wichita, enquired as to their union status. When Ray claimed that the men were members of Carpenters Local 1445, at Topeka, Hastings ascertained that the two had never been sworn in as members, and were in arrears in dues . He advised Ray that if the two men were initiated into membership, and if their back dues were paid to Local 1445, their membership could be transferred after 60 days to Local 201, without the necessity of again paying initiation fees for them. On January 26, 1968, Respondent signed a collective-bargaining contract with Carpenters Local 201, although, as in the case of the previous contract with Carpenters Local 1445, Respondent did not apply its terms to the employees covered. Ray testified that Hastings, like the business agent in Topeka, agreed with Ray that it would not be necessary for him to do so. It appears that Hastings is deceased . There is no indication as to the availability of the business representative of Carpenters Local 1445, who was not called as a witness. Pursuant to his understanding with Hastings, Ray made out a check to the order of Carpenters Local 1445, for the amount of dues required to bring the two, men into good standing, and gave it to Hastings to be forwarded. Ray also urged Hallacy and Beltz to become initiated into membership by Carpenters Local 201. Both of the men resisted, on the basis that they had received no benefit from the contract with the Topeka union. Ray asserted that they should do as he requested for the best interests of Respondent. It appears that there was a somewhat acrimonious discussion between Ray and Hallacy as to whether the latter would receive the benefits of the terms of the contract with Local 201. However, although it appears that Ray resisted Hallacy's request for assurance that the contract would apply, Hallacy agrees that Ray advised him , at some point in their conversations , that he could have the benefit of the terms of the contract, or could continue under Respondent's past policies, as he chose, but could not have both. Hallacy told Ray that he would join Local 201, as Ray wished, and would try to get Beltz to join also. When Hallacy did thereafter "join the union," Hastings told him that he was covered by the collective-bargaining contract. Though there is some dispute as to whether Hallacy ever unequivocally advised Respondent that he wanted to receive the benefits of the contract, it is not essential to the decision of the issues herein that this be determined. In any event, Hallacy was not paid in accordance with the provisions of the contract during the period after he joined Carpenters Local 201 until his discharge 3 weeks later. B. Thomas Hallacy's Discharge Hallacy, at the time of his discharge, had been employed by the Respondent for more than 5 years (except for a brief period in early 1967 when he quit). Prior to his discharge, Hallacy and Robert Beltz were engaged principally in the installation of Respondent's work in various construction projects. There seems to be no question but that Hallacy was a good workman who was well liked by the Respondent, although there had been some previous disagreements between Hallacy and Ray. In fact, it was testified that Ray had, on several occasions, advised Hallacy that Ray considered him like a son, and Mrs. Ray asserted on the witness stand that, notwithstanding his discharge, she continued to have a very warm, devoted regard for Hallacy. After Hallacy "joined the union," it appears that he made quite a point of advising the other employees of the contract between Carpenters Local 201 and the Respondent, and, in particular, those provisions in the agreement which provide (G. C. Exh. 2, pp. 3 and 8) that when two men work on a job together, a journeyman shall be foreman and receive a rate 37 1/2 cents above the regular rate. Hallacy told the other men that when two of them were on the same job, he would be the foreman. He states that he said this would be the case on "union jobs," and further that the subject was the cause of considerable joking among the men. I find this credible. Although it appears that these remarks to employees who were with him on jobs during this period , which were nonunion, it does not appear that Hallacy was claiming the prerogatives of a foreman on those jobs. JAMES RAY CO. 33 Hallacy's comments to the other employees were quickly brought to Ray's attention by foreman Parsons and others. Ray states that he confirmed the reports by calling in employee Bell. Though Bell did not recall this, he testified to another occasion, 2 or 3 days before Hallacy's discharge, when Ray called Bell into the office and advised him that there were going to be some changes made; that Bell should not be concerned about them; and that Bell was doing a good job, which Respondent appreciated. During the morning of January 29, 1968, Ray called the employees together in the shop. According to Bell's testimony, which is credited, Ray "said he wanted to straighten a few things out, that he was the boss of the organization and that we did not have people over people out on the job. As long as he owned the company and maintained the company, he was going to be the boss and he turned around and went back into the office ." It seems clear that on this occasion, Ray did not mention any names, or refer to wage rates, or to the reports which he had heard. According to Ray, after his meeting with the employees, the following occurred: And I turned around and went into the office. And a couple of minutes later Tom [Hallacy] came in and said , "I think we have a few things to discuss." And I said, "No, Tom, we don't have anything to discuss." And he says, "I think we have." And I said, "No, we don't." And he said, "Well," he said, "We have to get some things straightened out." He said, "I am the boss on the job when anybody works with me." And I said, "No, you are not either." And he says, "Well, I better," he said, "I have the book here." And I said, "I know what is in the book."' He said when anybody worked with him, because he was the union man, that he was the boss, and I said, "Well, you are not the boss and you are not going to be the boss over any man." And I said, "I know what I am talking about." And one word led to another, and he told me that I couldn't fire him. Up to that time I had no intention [of firing Hallacyl until he became defiant and when he told me that I couldn't fire him, I said, "I can fire you and you are fired right now."' Ray states that both were angry and had further words after this. In effect, Ray claims that Hallacy resisted Ray's demands that he leave Respondent's shop, and that Ray threatened finally to call the police before Hallacy departed. Hallacy's version of the incident is somewhat different: He states that following Ray's meeting with the employees, "After a few minutes I went into the office to discuss this matter because I felt it was directed at me... . I asked Mr. Ray if he would like to discuss the matter. He said no, he knew what I was trying to do with him 'Ray agreed that this had reference to the "Constitution and by-laws of the union," "the wage scale and so on ." However, Ray thereafter testified that he was not familiar with "the by-laws and working rules of the union," and specifically denied that he told Hallacy that "I knew what was in that book," adding, "I know about who was supposed to be the boss, and so forth, because that had been previously discussed with Mr . Hastings about who was to be the foreman on the job." 'At another point, Ray described the incident briefly : "He came in and was real belligerent when he came in and that was the reason I said I had nothing to talk about because I didn't want to get involved with it. I wanted him to understand what the situation was and as far as I was concerned that was the end. He made the statement that I couldn't fire him, that he had his union rights and when he told me I couldn 't fire him, I said, 'You are fired right now."' and he was through with me. . . . I was in the office. I asked Mr. Ray if he would like to discuss this matter. He said that no, he didn't want to discuss it, that I was through. . . . I told Mr. Ray that he couldn't fire me under these conditions. He said, `Well, we will show you,' and then he ordered me out of the office and the shop...." Hallacy agreed that he was reluctant to leave, stating that he was attempting to reason with Ray about the matter. Hallacy also confirmed that Ray threatened to call the police before he left. He also asserts that he did not raise his voice to Ray in this conversation. General Counsel's witness Bell, however, agreed that both men appeared visibly upset after they came out of Ray's office and that "the voices were pretty high." Hastings protested the discharge to Ray, and, accompanied by Hallacy, met with Ray, his wife and son that afternoon to discuss the matter. Only Ray and Hallacy testified in this proceeding with respect to the discussion. On the basis of their testimony it is clear that Ray claimed that he had fired Hallacy for insubordination, asserting that Hallacy had said Ray could not fire him. Ray also asserted previous difficulties with Hallacy. According to Ray, Hastings confirmed that he had previously agreed, because of the Respondent's small size, that Ray should be considered the foreman on the job under the contract, though Hallacy had not been told of this. Ray further indicated in his testimony that Hastings finally approved of his action in discharging Hallacy and only reluctantly said a hearing would be necessary.' Hallacy, however, testified that, while Hastings agreed that Ray would have been justified in discharging Hallacy if the latter had denied Ray's authority to fire him, Hastings did not agree that Hallacy had done so, or that Ray's action was valid. Hallacy's testimony in this respect is credited. While I have certain doubts concerning the reliability of both witnesses, in this instance Hallacy's account not only appears more straightforward, but more probable in the circumstances. Ray's version, on the other hand, asserting that Hastings had approved of his action in discharging Hallacy, is clearly an interpretative, rather self-serving conclusion as to Hasting's position. I further credit Hallacy's testimony that Hastings eventually persuaded him to drop the matter by advising Hallacy that he could get the latter better employment. C. Robert Beltz' Discharge Beltz was employed by the Respondent for a number of years almost exclusively as an outside installer of doors fabricated by Respondent, and was considered an excellent workman. According to Beltz' uncontradicted testimony, Ray told Beltz that he was the best installer Respondent ever had, and could work for Respondent as long as he wanted . James Ray referred to Beltz as "an excellent performer, an outstanding workman." Beltz is hard of hearing (he wore a hearing aid at the hearing), and there seems to be no question but that Beltz had had a series of conflicts with others in Respondent's organization. Beltz admitted that he had not spoken to part-time employee Powers for a period in the latter part of 1967, but had thereafter resumed talking to him after Ray told him that 'In relevant part, Ray's testimony was as follows : "Q. Did Mr. Hastings ever agree with you finally as to whether or not you should have fired Mr. Hallacy? A. Yes. He told Tom that he could be fired for insubordination and upheld my right to fire him, and Tom didn't quite agree with it and Mr. Hastings said that it could be tried before a Board." 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this was not a proper way to act. Beltz also admitted that in the period 4 to 6 weeks before his discharge , he had a dispute with Foreman Parsons in which he had promised to give Parsons a beating. Beltz, however, credibly denied that he had given employee Sponsel, rehired by Respondent to replace Hallacy in 1968 , "the silent treatment," or had any particular controversy with him. Sponsel's testimony to the contrary is not credited . I am satisfied from Hallacy's credited testimony that Sponsel harbored a preexisting dislike for Beltz . About a week after Sponsel was rehired, he did go to the Rays' home to complain about Bell and Beltz,' during the course of which Sponsel reported what he had heard of the union activities of Beltz and Hallacy. It is also clear that, several weeks before his discharge, Mrs. Ray thought that Beltz was refusing to speak to her, and complained about this to Ray , who cautioned Beltz concerning this. Beltz, on his part, denies that he deliberately avoided speaking to Mrs. Ray. Finally, Shop Foreman Parsons asserted that Beltz had given him considerable difficulty with respect to assignments of work , and that he (Parsons) had on a number of occasions recommended to Ray that Beltz be discharged . Beltz admitted that Ray had reprimanded him a number of times about various problems he was having. As has been noted above, Beltz had been active in the abortive attempt of the Glaziers to organize Respondent's employees in early 1967. On June 14, 1967, a Wednesday, Beltz, upset over a report that Powers was being paid a higher rate than he and disturbed because he felt that Parsons would not properly advise him in respect to a job assignment, quit his job without notice or explanation. At his wife's insistence, he returned to the plant to give Ray an explanation for his conduct. During this conversation , one of the Rays told Beltz that he seemed to think he had them "over a barrel" because of the then current Topeka job. Mrs. Ray said that this was "just a conspiracy with the union ." Beltz replied that this was "silly," that the men could have voted the union in if they had wanted, and offered to go back to Topeka and finish the job there without cost to Respondent, to show that he did not have them "over a barrel." Ray told Beltz to forget it, that he would continue on the payroll, and should return to work. It would appear that Mrs. Ray thereafter continued to have some resentment over the manner of Beltz' return to work, but, in Beltz' words, "Mr. Ray cooled this off," and he continued in Respondent's employ. About this time, also, according to Beltz' uncontradicted testimony, Mrs. Ray told the men in the shop that "there will never be a union in this shop. I'll lock the door and throw away the keys, we'll sell it." In February 1968, Beltz was admitted into the hospital for minor surgery, which was expected to keep him from work for only one day. Because of complications, Beltz did not return until 10 calendar days later. This extended 'The record gives evidence that there was substantial resentment among the men with respect to Parsons and Powers , and, in particular, in regard to a supposed personal friendship between them. There is also evidence that in the past there had been complaints that Parsons had favored Boltz over Hallacy, and vice versa, in making assignments of work. 'The content of this complaint is not clear . Ray stated that Sponsel said Bell and Boltz wouldn't talk to him. Though on cross examination Sponsel agreed with this, on direct examination and in answer to a query of the Trial Examiner, he made no mention of it. He also admitted that Boltz talked to him about a union during this period. Bell admitted that he did not talk to Sponsel at this time. absence apparently was the cause of some resentment on the part of the Rays. Though Respondent had an established practice of paying employees for the days lost at work, according to the testimony of Ray, on this occasion, Mrs. Ray argued, in what Ray described as "heated discussions," that Beltz should not be paid because he was "resting" in the hospital . It was decided that he should be paid, nevertheless. Shortly thereafter, however, when Beltz was given another day to go to the hospital for treatment , after further discussion with Mrs. Ray, Ray determined that Beltz should be docked for the day. When Beltz heard of this, he told the office girl, in rather sharp language, that he would expect to be paid for his overtime, if he was to be docked for his absence. When Ray heard of this, he called Beltz into his office and reprimanded him for bringing his overtime complaint to the office girl, and admonished him that if he continued with such statements (which Ray interpreted as threatening), Ray would "let [him] go." Shortly after his extended stay in the hospital, in February, Beltz made a claim under hospitalization insurance carried by Respondent for its employees. After this claim was paid, Beltz had occasion to talk to the insurance agent, during which conversation, he complained about the inadequacy of the insurance payments in covering his expenses. The agent advised Beltz to file a claim under another policy carried by Respondent for its employees which paid for loss of time after 7 calendar days, and, in fact, left a claim form at Respondent's office for Beltz.' Beltz filled out the form and left it in Respondent's office in early May. James Ray, according to his testimony, took the form in to his father 2 or 3 days later, at the first "convenient opportunity," and directed his attention to "what Bob has done." Ray's testimony, on the other hand, indicates that it was he who brought the matter to the attention of his son. According to the testimony of Ray and his son, the two of them agreed that this was a "fraudulent claim" (because Respondent had paid Beltz for the time he was in the hospital), and Ray instructed that during the Rays' forthcoming vacation, James Ray should seek a replacement for Beltz, so that he could be discharged upon Ray's return. James Ray also asserted that he had previously recommended Beltz' discharge. While Mr. and Mrs. Ray were absent, Beltz was again in contact with Zander, the business representative of the Glaziers . Both Beltz and employee Bell met with Zander and signed authorization cards for the Glaziers . Beltz also spoke to Foreman Parsons about affiliating with the Glaziers, advising him that both Beltz and Bell had signed cards favoring that union, and sought to have him meet with Zander. Beltz told Bell of this conversation , stating that Parsons had agreed to meet with Zander. Thereafter, a few days before Beltz' discharge, according to Bell, he had the following conversation with Parsons : "Well, I believe I was packing a door, shipping a door out and he was rescreening it, and he said, `I hear you are a union man.' I said, 'No, not really,' and he said, `Well, I heard you were.' [I said] I went down and talked to him and he said something about the benefits . I said, `Yes, they have pretty good benefits, retirement, hospitalization and vacations.' I said what I was interested in was the retirement and this was about the extent of it." Parsons, who testified that he finally decided that he 'Indeed the insurance company, on the form which accompanied Boltz' check in payment of his original claim (see G.C. Exh. 3) specifically advised that such claim for loss of time benefits be made. JAMES RAY CO. "didn't want any part" of the Union, did not meet with Zander, as Beltz had urged. Mr. and Mrs. Ray returned from their vacation earlier than originally expected. The night they returned, and after talking to his parents, James Ray visited Cletus Miller, whom employee Sponsel recommended, and interviewed him for employment. James Ray testified that he had made unsuccessful earlier attempts to secure a replacement for Beltz. Miller, however, apparently agreed that he would be willing to come to work for Respondent after giving his present employer 2 weeks notice. The next day, Thursday, May 23, 1968, Ray called Beltz into his office and discharged him for filing a "fraudulent" insurance claim. Beltz protested against this accusation, and insisted that he had been instructed by the insurance agent to file the claim, that he had not done so on his own initiative.' During the course of the conversation, Beltz asked for his check and was told to have his wife come in on Monday for it. Ray also refused to give Beltz a letter stating the reason for his discharge. Both men were obviously upset. As Beltz left, according to Beltz' testimony, he told Ray, "You think you are some kind of a god, but this is one time you are not fooling with some kind of a kid." Beltz then took his personal effects and went home. Beltz' wife, who impressed the Trial Examiner at the hearing as a sincere, composed, and rather level-headed individual, was disturbed at his story, and immediately called Respondent. Mrs. Ray confirmed that Beltz had been fired for presenting a "fraudulent" insurance claim, and that Mrs. Beltz should come in for his check. The following day, Friday, May 24, 1968, Mrs. Beltz went in to see Ray and his wife.' During the course of the conversation, the Rays spoke to Mrs. Beltz of problems and difficulties they had with with her husband in the shop, and the fact that he had been reprimanded on a number of occasions. It appears that there was also some mention of difficulties which Mrs. Beltz, herself, had had with her husband.1° Mrs. Beltz indicated that she thought that her husband's attitude had improved over the past year. The Rays told her that it had not, but had gotten 'Ray admitted, with an appearance of reluctance and some evasiveness, that after Boltz was discharged, Ray contacted the insurance agent, who confirmed that he had told Boltz to file the claim for loss of time benefits. Ray also agreed that at the insistence of the insurance company, he finally sent Boltz' claim in to be processed , and that it was finally paid in the sum of $11.43. 'Inasmuch as the timing of this meeting is of some importance and the evidence appears somewhat confusing, the matter has been considered with care. Although Heitz was originally told to have his wife come in on Monday to pick up his check, it is clear that Friday was the normal payday. Though Mrs. Boltz first stated she went to Respondent 's shop on Monday, she immediately corrected herself to state that the visit was on Friday, "on the following day" after her husband's discharge. The record shows that this was the understanding of counsel for the Respondent (tr. p. 100), the General Counsel (tr. p. 101) and the Trial Examiner (tr. p. 102). No evidence to the contrary was adduced. "Mrs. Boltz was also asked on cross examination if she had had personal talks with her husband about difficulties with other employees at work. It was ruled that this inquiry was subject to the marital privilege, and that she had not waived the privilege by taking the witness stand. Since the General Counsel acts in the public interest and not in the interest of private persons or groups in the prosecution of these cases, see Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261,262, 262, 265, it would tend to seriously impede the administration of the act if witnesses, by cooperation with the government, were to lose personal privileges thereby. In any event, Respondent established through other testimony of. Mrs. Boltz and other witnesses that conflicts between Heitz and other employees had in fact occurred, and were known to the Respondent. 35 steadily worse. Mrs. Ray also made mention of her complaint that Beltz had avoided speaking to her in the plant. After some discussion about her husband's paycheck, Mrs. Beltz stated, "I was going to leave it at this and leave, but [Mrs. Ray] immediately stopped me and asked what I knew about how much trouble Bob was going to cause them. I said I didn't know, I didn't know what she was referring to and, of course, the conversation went on to other things, an employer can fire an employee for any reason he choses, or he lost his rights, or words to this effect, and that they should have let Bob go when they let Tom Hallacy go. I answered, `What ground would you let him go?' She said, `Insubordination; each time he gets with Jack Zander" there is trouble."' On cross examination Mrs. Beltz repeated that Mrs. Ray, in their conversation, had stated "that every time he was in the company of Zander there was a problem and this was when it was brought up."': Concerning this conversation, Mrs. Ray testified that Mrs. Beltz was told that Respondent had "put up with an awful lot with Bob;" that the day Hallacy was discharged, Beltz twice failed to answer her greeting of "good morning;" that the Rays spoke "of several incidents of this that had gone on in the past, and we had just about had it, really had it;" and that she reminded Mrs. Beltz of the latter's call in June of the previous year, "when she called and told me of meeting this Mr. Zander and Mr. Beltz." According to Mrs. Ray this was the only statement involving Zander's name during the conversation. In response to a specific question, she testified that during this conversation she "never mentioned recent activity with Zander."" Mr. Ray was not questioned concerning this conversation. However, the testimony of Ray, his wife, and James Ray was to the effect that at this time they did not know of Beltz' most recent involvement with the Glaziers. The credibility issues involved in these matters will be considered hereinafter. On Thursday and Friday, after Beltz' discharge, employee Bell testified he felt an atmosphere of depression and hostility toward himself, and on Friday evening he sought permission to talk with the Rays at their home the next day. Bell visited the Rays about lunch time on Saturday. His account of the conversation, which is undenied, reveals that he told the Rays that he wanted to confess that he had talked to the "union man" and had signed a card; that he would give 2 weeks notice, if they "The transcript incorrectly reads "Jack Bell," and General Counsel has requested that this be corrected. No opposition to this request has been received. In addition, cross examination of Mrs. Heitz, as well as Mrs. Ray's testimony, establishes that the person discussed was Zander, not Bell. "At the time of this conversation, Mrs. Heitz was aware of her husband's contacts with Zander in 1967, as well as those in 1968, shortly before his discharge, and, in fact, Mrs. Heitz had previously talked with Mrs. Ray, in 1967, about Boltz' earlier contact with Zander, apparently during a call she made to Respondent when Heitz quit in June of that year. "Mrs. Ray, who tended to wander in her testimony, also interspersed matters apparently not actually involved in her conversation with Mrs. Heitz. By reason of this, and through some leading questions, Mrs. Ray seemed to assert that during this conversation she also informed Mrs. Heitz that Respondent had previously reinstated Boltz in 1967, even though they knew of his involvement with Zander "because we felt that maybe he had been swayed, and when he made the offer to go to Topeka, we had paid our money;" and also "that he wasn't in the Carpenters Union, that we thought he was." Although these matters were quite probably on Mrs. Ray's mind, based on the manner in which they were adduced, the Trial Examiner doubts that they were actually stated. Mrs. Heitz was not asked about them. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desired, or that Respondent could terminate him, or take whatever action the Rays desired. At this point, Bell states, "Mrs. Ray said, `I think you had better leave.' I said, 'O.K.' Then we went ahead talking about Mr. Ray talking about his experiences in the union , and we talked about Bob's termination, we talked about his relation with the employees where the man didn't have to give him a reason for his termination . I told him that I was sorry and I wanted to get this off of my conscience, that I felt bad about it, that I wasn't going to be a union man." During this conversation, Bell testified that Mrs. Ray stated that "Before a union comes in this place, I have the keys and I will lock it up and we will go back operating out of the station wagon," and further that "if Mr. Zander ever came around again she would take a piece of glass and cut his guts." Bell further stated that "they said. . .no union was going to run their business." Also during this conversation, Bell complained that after Hallacy had been terminated, Sponsel had been employed as an installer, without giving Bell an opportunity to become an installer . In answer, the Rays explained to Bell that he had originally been hired to replace Beltz (when Beltz had quit the previous June) and was not considered a replacement for Hallacy. This apparently mollified Bell for reasons which do not appear in the record, though it would seem indicated that Bell understood that now that Beltz was terminated, he would indeed be used as an installer , as the record indicates has since occurred. Conclusions 1. Alleged violations of Section 8 (a)(1) and (2) of the Act It is clear that Mrs. Ray 's threatening comments to Bell at her home on May 25 , 1968, violated Section 8(a)(l) of the Act. Though similar comments had been made earlier by Mrs. Ray in the shop, as stated by Beltz, these may have occurred more than 6 months prior to the filing of the charges in this matter and thus would be barred under the Act as unfair labor practices. Because of the similarity of these earlier actions to the later conduct, already found violative of the Act, it is unnecessary to consider this further. It is also quite clear that Foreman Parsons did not, as alleged in the complaint , unlawfully interrogate Bell with respect to his union activities, on the occasion he spoke to Bell prior to Beltz' discharge. Bell was quite aware that Parsons had been informed by Beltz of Bell's involvement with the Glaziers, and I find nothing improper in the conversation related by Bell. It will be recommended that this allegation of the complaint be dismissed. The General Counsel further contends that Respondent unlawfully aided and assisted Carpenters Local 201, in violation of Section 8(a)(l) and (2) of the Act, by entering into a collective-bargaining contract with Local 201, which recognizes that organization "as the sole collective-bargaining agency" of employees engaged in work covered by the agreement (see G. C. Exh. 2, art. I and II), at a time when Local 201 was not the designated representative of a majority of Respondent's employees covered by such agreement, and by other acts and conduct, including the payment "of back dues" to Local 201.14 "Although only the execution of the agreement and the payment of "back dues" are alleged in the complaint as illegal assistance to Local 201, Respondent contends that there is no evidence that it rendered aid or assistance to Local 201 in violation of the Act, pointing out that the money which it paid out was for transmittal to Carpenters Local 1445 in Topeka, not to Local 201, in Wichita. Respondent further argues that in the absence of any evidence of illegal aid or assistance to Local 201 , it was justified under the provisions of Section 8(f) of the Act in entering into an agreement with Local 201, even in the absence of an antecedent majority status among the Respondent's regular employees.'s However, the facts do not leave any doubt that the Respondent in this matter , in order to further its own business interests at the time , intended to and did by its actions aid, assist and support Local 201 in a manner prohibited by the Act. Though the actual payment was made to the order of Local 1445, Respondent's purpose was to encourage, aid and assist its employees to become members in good standing of Local 201 , for Respondent's benefit, at a time when the employees had not only not designated Local 201 as their representative , but were resisting such designation . In addition , Respondent further urged and encouraged the employees to forego their reluctance and accept membership in Local 201 . By these acts and conduct, under the Board's consistent prior decisions, it must be held that Respondent rendered illegal aid and assistance to Local 201 , in violation of Sections 8(a)(l) and (2) of the Act. See Schurr & Finlay, Inc., 149 NLRB 272; Disney Roofing or Material Co., 145 NLRB 88; Bear Creek Construction Co., 135 NLRB 1285; cf. Loney Davenport , Contractor, 173 NLRB No. 39. In these circumstances, it is also found , as stated by the Board in Schurr & Finlay, Inc., supra at 273, fn. 1, that the Respondent "further violated Section 8(a)(2) and (1) by recognizing and entering into an agreement with [Local 201 on January 26, 1968 ,] and that, in view of the Respondent ['s] unlawful assistance to [Local 2011 Section 8(f) affords no protection to such conduct by the Respondent." 2. The discharge of Thomas Hallacy General Counsel contends that Hallacy was discharged in violation of the Act because of his "attempts to assert his contractual rights," assertedly "protected by Section 7" of the Act. (G. C. br., p. 5). Respondent contends that Hallacy was discharged for asserted insubordinate conduct in telling Ray that the latter could not fire him. It is quite clear, under the circumstances, that Ray had no intention of discharging Hallacy for his prior statements before Hallacy approached Ray in his office on February 29, following Ray's statement to the employees that there would be no foreman on the job but himself. I am satisfied that if Ray had intended to release Hallacy, he would have called him in and done so directly. For this reason, it is difficult for me to believe that Ray summarily the General Counsel also argues the effect of other facts set forth in Section A of this decision hereinabove. These facts were mainly adduced from the testimony of Ray on this point, and are largely undisputed. "In pertinent part, Sec. 8(f) of the Act reads as follows: It shall not be an unfair labor practice . for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged . in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in Section 8 (a) of this Act as an unfair labor practice) because ( 1) the majority status of such labor organization has not been established under the provisions of Section 9 of this Act prior to the making of such agreement .... JAMES RAY CO. terminated Hallacy for this reason, almost immediately upon the latter's coming into the office, as Hallacy's account of the occasion indicates. In fact, by Hallacy's own testimony, the conversation in the office took up to 5 minutes, which hardly conforms with his summary account. On the other hand, Ray's more detailed account not only conforms with the circumstances of the record otherwise, but is supported in part by the testimony of James Ray. Therefore, to the extent that the two accounts differ, Ray's account is credited as the more accurate version. Indeed, it may well be that Hallacy mistakenly considered Ray's intemperate exasperation with further discussion of The foreman issue as meaning that he was being dismissed . But, I am convinced that Ray, in fact, did not intend to terminate Hallacy's employment until the latter angered Ray by telling him that Ray could not fire Hallacy. I do not pass upon whether firing Hallacy was a sound or temperate decision , or an exercise of good judgment. It is found, however, that Hallacy's discharge, under these circumstances, was not a violation of the Act, and it will be recommended that this allegation of the complaint be dismissed. The resolution of this issue is a matter of some difficulty. The Respondent is clearly opposed to unionization by its employees, and very strongly so. Respondent' s actions in signing two collective-bargaining contracts with Carpenter Locals are not to the contrary, for these were obviously considered temporary business expedients, not intended to govern the working conditions of Respondent's regular employees. Respondent was also obviously aware of Beltz' activities on behalf of the Glaziers in April and May 1968, at the time of Beltz' discharge . Respondent' s denials are not credited. Indeed, it would be astounding if this information had not speedily come to the attention of the Rays. The record shows that activities of this sort previously known to Foreman Parsons and others in Respondent's small work force were quickly made known to the owners. Thus, Parsons and others very quickly apprised management of Hallacy's activities in regard to the Carpenter's Union; Sponsel, within a week of his employment, informed the Rays at their home of what he had learned of the union activities of Beltz and Hallacy; Bell, also, in his trip to the home of the Rays and his confession of complicity seems to have traveled a well worn pattern. Moreover, Parsons, who was aware of Beltz' activities, was not sympathetic to the Glaziers, and there appears no reason that he should have kept his knowledge from management , as he claims , or that he considered the matter confidential. In fact, his casual and apparently open conversation about the matter with Bell would indicate the contrary. Finally, Mrs. Beltz' version of her conversation with Mrs. Ray, which is credited, is convincing that the Rays were aware of Beltz' recent union activities prior to being informed by Bell, from whom they claim to have first learned of them.16 "From observation of the two witnesses and analysis of their testimony, the account of Mrs . Boltz of her conversation with Mrs. Ray is considered the more credible . It is more detailed and more coherent than that of Mrs. Ray, who tended to wander and was much assisted by suggestive and leading questions . In fact, Mrs. Ray appears to contradict Mrs. Boltz on only one major point, i.e., whether, when Mrs. Ray brought up Boltz' association with Zander, she was referring only to an occasion in early 1967, or to the 1968 events as well . However, in the absence of any apparent reason why Mrs. Ray should have brought up this remote association of Boltz with the union in the course of her explanation of the reasons for his termination, it would seem most probable that the reference 37 Respondent, however, asserts that the decision to discharge Beltz was made before his union activities in 1968, and thus was not influenced by those activities. There was, of course, no contradiction of this testimony with respect to the Rays' asserted prior decision to terminate Beltz, although the petty nature of the asserted offense, the failure to discuss it with Beltz, the rather obvious avoidance of contact with the insurance agent until after Beltz' discharge (though on other occasions Ray admittedly discussed questionable claims with the agent), the long delay in taking any action about the matter followed by precipitate action after Beltz' union activities were known, as well as other matters reflecting on the credibility of the witnesses involved, raise serious questions as to this testimony. However, assuming (without deciding) that such a previous determination had been made, conditional upon hiring a replacement for Beltz, the record is still convincing that Beltz' intervening union activities became an essential factor in the final decision to terminate Beltz, and its effectuation on May 23. Though James Ray assertedly had been instructed prior to May 8 to find a replacement for Beltz, he states that he did not find anyone who was available until the very evening his parents returned home on May 22. After talking with them, James Ray visited the home of Cletus Miller, who had been recommended by employee Sponsel at some previous time , and determined that Miller was willing to come to work." However, it is clear that at the time Beltz was discharged, on Thursday morning, contrary to the implications of Respondent's argument, Miller had not been actually hired since it was only after a final interview on Thursday afternoon, that Ray, himself, employed Miller. Further, the record shows that Miller actually was not available for work until the first part of the following week, and even then apparently not on a full-time basis since he was working out a 2-week notice to his then employer. In this situation, it is almost incomprehensible that Respondent should have so precipitately dismissed Beltz prior to the end of the pay period, which was the next day, at a time when Respondent knew Beltz had a committment to do a special job for a customer that same evening (which had been arranged at James Ray's request and in his presence), and when his replacement was not actually available, particularly in view of Respondent's prior considerable delay in effectuating his termination for filing an asserted fraudulent insurance claim . I do not credit the explanation that this abrupt and hasty action was only the result of a predetermined, set decision that the event was to take place on the day of the Ray's return to the office, and no later. I am convinced that it was precipitated by the information received as to Beltz' Union activities. This is confirmed by the statements made to Mrs. Beltz the next day. Indeed, the intensity and range of the reasons given for discharging Beltz, as well as the felt necessity to assert that Respondent really needed no reason at all to terminate him (which was substantially repeated to Bell the next day), indicate the Ray's lack of genuine conviction in the asserted reason for Beltz' was impelled by agitation over knowledge that the former activity was being repeated, and that Boltz was again going to cause Respondent "trouble." "James Ray testified that he had contacted two self-employed persons who declined to come with Respondent, and unsuccessfully attempted to contact a third person assertedly suggested by one of them. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination. Indeed, it is difficult to believe that Respondent, at least after Beltz' explanation, continued to hold a sincere belief that he had made a willfully fraudulent claim. It seems inconceivable that Ray should have waited until after Beltz was discharged and out of the plant to confirm with the insurance agent the fact that the latter had advised Beltz to file the claim in question , particularly since it was shown that Ray was accustomed to checking out claims with the insurance agent which Ray thought questionable. Further, notwithstanding Respondent's asserted previous difficulties with Beltz, the Rays not only had taken no action to terminate him, but when he quit without notice and in defiance of Foreman Parsons in 1967, took Beltz back , even though his replacement had been hired and was on the job." Ray's refusal to consider his further employment, in the face of knowledge that Beltz was not at fault in filing the alleged fraudulent insurance claim, on this latter occasion must be attributable to some other compelling motivation. The only other intervening factor shown is Beltz' union activities, a matter which could be expected to arouse the Rays' strong antagonism . In the circumstances, it is found that Ray's refusal to accept Beltz ' explanation on this occasion, and continue him in employment , was due to Beltz' union activities on behalf of the Glaziers. On the basis of the considerations set out above, and on the record as a whole , it is found that Respondent, by its discharge of Robert Beltz, intended to and did discourage membership in and activities on behalf of a labor organization in violation of Section 8(a)(l) and (3) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce, primarily in the building and construction industry, within the meaning of Sections 2(2), (6), and (7) and 8(f) of the Act. 2. The Glaziers, Carpenters Local 201 and Carpenters Local 1445 are labor organizations within the meaning of Section 2(5) of the Act. 3. By the acts and conduct herein found violative of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(axl), (2), and (3) of the Act. 4. The Respondent did not violate the Act by the discharge of Thomas Hallacy. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(l), (2), and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that the Respondent has violated Section 8(a)(2) and (1) of the Act by various acts and conduct giving aid, assistance and support to carpenters Local 201, it will be recommended that the Respondent withdraw and withhold all recognition from "Respondent suggest that this shows a lack of hostility toward Beltz' Union activity. However, as Mrs. Ray's testimony indicates, Respondent was not at that time concerned with his "misguided" activities on behalf of the Glaziers which was not then active. Carpenters Local 201 as the collective-bargaining representative of any of Respondent 's employees, and cease giving effect to any collective -bargaining contract with Carpenters Local 201, or to any modifications, extensions, supplements, or renewals of such contracts, unless and until Carpenters Local 201 shall have been certified as the collective-bargaining representative pursuant to a Board-conducted election among Respondent's employees in a unit or units appropriate for the purpose of collective bargaining . Nothing in the Recommended Order set forth hereunder , however, shall be construed to require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of the relationship between the Respondent and its employees which may have been established during the terms of, or pursuant to any such contract , or to prejudice the assertion by the employees of any rights they may have under such contract or any established practice in regard to wages, hours of employment, or conditions of employment. It will further be recommended that Respondent offer Robert Beltz immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him to the date of reinstatement, less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In order to make effective for the employees of the Respondent the guarantee of rights contained in Section 7 of the Act, it will be recommended that the Respondent cease and desist from, in any manner, infringing upon the rights guaranteed in that Section. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondent James Ray Company, Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in order to discourage membership in and support of Glaziers Local 558, affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or any other labor organization. (b) Threatening or warning employees with harm or reprisals if they join or assist a labor organization, or select a representative for collective bargaining. (c) Recognizing or contracting with Local 201 as the representative of its employees, or giving effect to, performing, or in any way enforcing in favor of Local 201 any collective-bargaining contract, unless and until Local JAMES RAY CO. 201 shall have been certified as representative of such employees by the Board , as provided in the section entitled "The Remedy," hereinabove. (d) Contributing financial or other aid or assistance to any labor organization, except as may be permitted by Section 302 of the Labor Management Act, 1947, as amended. (e) Coercively urging, soliciting, or directing employees to support a labor organization or participate in its activities. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer Robert Reitz immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in accordance with the provisions of the section entitled "The Remedy," above. (b) Notify Robert Beltz if presently serving in the Armed Forces of his right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agent, upon request, payroll and other records to facilitate the compution of backpay. (d) Withdraw and withhold all recognition from Local 201 as the collective-bargaining representative of its employees unless and until Local 201 shall have been certified by the Board. (e) Post at its plant at Wichita, Kansas, copies of the attached notice marked `Appendix."19 Copies of said notice on forms to be provided by the Regional Director for Region 17, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and shall be maintained for 60 consecutive days thereafter, in conspicuous places , including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith. 20 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to any alleged violation not found herein. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 39 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge you, or in any other manner cause you harm, because you join or help Glaziers Local No. 558, affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or any other labor organization. WE WILL NOT threaten you with any sort of harm to discourage you from joining or helping a labor union, or selecting a labor union as your representative. WE WILL NOT recognize or deal with Carpenters, Local 201 , of Wichita, as your representative in respect to your conditions of employment , or have a contract with Local 201 covering your working conditions, unless the National Labor Relations Board certifies that it is proper to do so. WE WILL NOT give financial assistance to Local 201, except as strictly permitted by law. WE WILL NOT by coercive means try to get you to join or help Local 201, or any other labor organization. WE WILL NOT in any other way interfere with your right to - Organize yourselves, or form, join or help unions. Bargain for working conditions through a representative freely chosen by a majority of the eligible workers in our operations. Act together for mutual aid or protection of your working conditions. Refuse to do any or all of these things. WE WILL offer Robert Beltz immediate and full reinstatement to his former or substantially equivalent position without loss of seniority or other rights and privileges, and WE WILL make him whole for any loss of pay because he was discharged, with interest. JAMES RAY COMPANY, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5282.