Anvil Products, Inc.

ANVIL PRODUCTS, INC. 709 Anvil Products, Inc. and Local Lodge 1923, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 16-CA-4812 August 27, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 21, 1973, Administrative Law Judge Sidney Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. 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 au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Anvil Products, Inc., Longview, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. MEMBER KENNEDY, dissenting in part: The effect of the majority's holding is to impose a collective-bargaining representative on the present employees without giving them the opportunity to ex- press their current desires in a Board-conducted elec- tion pursuant to the RD petition. I do not agree with my colleagues' finding that Respondent violated Sec- tion 8(a)(5) of the Act. In my view, a real question concerning representation was raised by the timely filing of a valid decertification petition,' and there existed sufficient objective grounds for doubting the ' In adopting his conclusion that Respondent violated Sec. 8(a)(5), we do not rely on the finding of the Administrative Law Judge that Respondent's 8(a)(3) violations precluded a finding of a "good-faith doubt" of majority status Rather, we rely upon the fact that such serious violations of the Act tend to produce disaffections from a union and thus remove as a lawful basis for an employer's withdrawal or recognition the existence of a decertification petition or any evidence of loss of union support which , in other circumstanc- es, might be considered as providing objective considerations demonstrating a free and voluntary choice on the part of the employees to withdraw their support for a union Telautograph Corporation, 199 NLRB No 117 Union's majority status.' I would reinstate the decerti- fication petition in Case 16-RD-555 and proceed to an election at a time when the Regional Director has concluded that a fair election can be held. The majority has precluded the Respondent from questioning the May 1971 certification of the Union because of the Respondent's 8(a)(3) violations of the Act limited to 3 employees in a unit of about 50 to 60 employees. Thus, my colleagues hold that any em- ployer, who commits limited 8(a)(3) violations like those which are present here, may not question a union's majority status based on a valid RD petition or "any evidence of loss of union support." The broad sweep of my colleagues' holding in these circumstanc- es forecloses the consideration of "any evidence" which would show that a union no longer enjoys ma- jority status among the employees in the unit. No contention is made that the RD petition was in any way unlawfully assisted or sponsored by this Em- ployer. It is significant that not a single independent 8(a)(1) violation of the Act is found in this case. How- ever, the majority remains unpersuaded that a valid question concerning representation was raised by the RD petition. In a separate order, my colleagues are upholding the dismissal of the RD petition and there- by preventing the employees from voting for or against representation by the Union. My colleagues are dismissing the RD petition because of their find- ing that Respondent violated Section 8(a)(3) of the Act. The 8(a)(5) violation derives from the 8(a)(3) findings of the majority. Respondent's violations of Section 8(a)(3) of the Act arise largely from its erroneous interpretation of the legal principles of the Laidlaw decision 4 with re- spect to three former economic strikers. Two of the strikers, Craver and Stephens, were not reinstated on Monday, February 7, 1972, when the strike terminat- ed because they had been replaced during the strike. One week later, Respondent did rehire both Craver and Stephens, on February 15, 1972, when vacancies occurred, but as new employees with loss of seniority. The loss of seniority of these two individuals is the basis for two of the three findings of violations of Section 8(a)(3) of the Act. The sole remaining violation of Section 8(a)(3) re- lates to Tolbert who has not been reinstated. His case turns upon the Administrative Law Judge's credibility resolution that Tolbert had not told Respondent that he was quitting. While I accept his credibility resolu- tion, I do not accept the Administrative Law Judge's disregard of Tolbert's denials on direct examination by the General Counsel that he had ever applied for rein- statement. I might be willing to agree that "Tolbert 3 Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB No 113 4 The Laidlaw Corporation, 171 NLRB 1366 205 NLRB No. 80 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misconstrued the import of the General Counsel's questions" if they had been propounded in searching cross-examination by Respondent's counsel. I am un- willing to find that Tolbert misunderstood the "im- port" of the questions of the General Counsel.' In any event, there is no evidentiary basis for con- cluding that Respondent's treatment of Tolbert could have had an impact on the employees who signed the decertification petition. Tolbert was lawfully replaced during the strike and the majority's finding of a viola- tion as to him is predicated upon ajob opening which occurred several months later. The Administrative Law Judge did not decide definitively when Tolbert should have been recalled. According to his finding, the individual who was employed instead of Tolbert was hired sometime between March 20 and May 30. This would be the date of the discrimination against Tolbert under the theory of the majority. But, if this occurred during the latter part of May, it could not have prompted the employees to sign the decertifica- tion petition which was docketed on May 30, 1972. There is no reasonable basis for inferring either that the discriminatees or other employees were induced to withdraw their support from the Union by the limited unfair labor practices found by the majority. I do not minimize the violations found by my col- leagues, but the Board has a responsibility to assess realistically the gravity of the unfair labor practices. The United States Court of Appeals for the Fifth Circuit has admonished the Board to make such an assessment. "More specifically, the Board should not be allowed to apply its `blocking charge practice' as a per se rule without exercising its discretion to make a careful determination in each individual case wheth- er the violation alleged is such that consideration of the election petition ought to be delayed or dis- missed." 6 It is my judgment that the violations found by the majority could not have had an "impact upon the fair and free choice of bargaining representatives by the employees." See Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (C.A. 5, 1971), where the court observed, "if some of the striking employees have not been returned to work, or to their full senior- ity rights, this can be accomplished by the Board with- out delaying the consideration for decertification." The majority suggests in footnote 1 of their Deci- 5 The Administrative Law Judge suggested that all strikers who returned to work were taken back as new employees without seniority However, the General Counsel made no such contention in the complaint nor was this issue litigated The Administrative Law Judge did not include a finding as to all strikers in his "Conclusions of Law" nor did he provide a remedy for all the former strikers-only the three former strikers specifically named No excep- tions were filed by the General Counsel to the Administrative Law Judge's limiting his remedy and conclusions of law to the three strikers named in the complaint I believe it was improper for the Administrative Law Judge to inject matters outside the complaint and not fully litigated b Surratt v N L R B , 463 F 2d 378 (1972) sion that the failure to reinstate Tolbert and the denial of seniority to Craver and Stephens were "such seri- ous violations of the Act" as would "tend to produce disaffections from the Union." Such a holding on this issue is at odds with the theory on which the General Counsel tried the case. Respondent asserts that the General Counsel had expressly disclaimed at the hearing that the alleged unfair labor practices had the effect of dissipating the Union's majority status. Respondent's assertion in this regard is in accord with the Administrative Law Judge's recollection of the General Counsel's position at the trial. In addition to footnote 18 of the Decision of the Administrative Law Judge, see the exchange of correspondence between the Administrative Law Judge and the General Coun- sel which are attached as Exhibits A and B. It seems to me that if the majority is correct in its dismissal of the RD petition because of the limited violations found, then it necessarily follows that a per se approach is being followed in the application of the blocking charge rule. Here the Regional Office appar- ently concluded that the alleged 8(a)(3) violations had no effect upon the union defections and yet refused to process the RD petition. How can it be said that the blocking charge rule is being exercised with discre- tion? In his post trial letter to the Administrative Law Judge (Exh. B), the General Counsel states his theory to be that "the Union never lost its majority status regardless of the 8(a)(3) violations." He never under- took to prove that the Union represented a majority even though it is abundantly clear that Respondent's withdrawal of recognition was based on objective considerations that the employees no longer desired to be represented by the Union. This was the General Counsel's burden.8 ' See the concurring opinion of Judge Ingraham in Surrait v N L R B, supra, where he quoted with approval from the opinion of the court below as follows The Board's own explanation of the blocking charge practice is that it provides a logical and effective means of reconciling the statutory poli- cies requiring the employer to afford the employees ' chosen representa- tive a minimum opportunity at effective collective bargaining, and the right of employees to a reasonable opportunity to challenge the repre- sentative status of an incumbent union The latter consideration is em- bodied in Section 7 of the Act, which explicitly gives employees the right to bargain collectively through representatives of their own choosing, and to refrain from any or all of such activities 29 U S C 157 The Templeton Court found that protection of this statutory right of employ- ees was the main consideration of the Congress when it drafted its directions to the Board for handling decertification petitions in manda- tory language The aforementioned statutory policies cannot possibly be reconciled if the Board utilizes its blocking charge practice to deny an election solely because of pending unfair labor practice proceedings with no investigation of the surrounding circumstances and no consideration of to what extent the alleged loss of a Union majority has been affected by the alleged unfair labor practices [Emphasis added] See Taft Broadcasting, WDA F-TV, AM-FM, supra, Lodges 1746 and 743 International Association of Machinists and Aerospace Workers , AFL-CIO v N L R B (United Aircraft Corporation), 416 F 2d 809, 811-812 (C A D C, 1971), N L R B v Dayton Motels Inc, 474 F 2d 328 (C A 6, 1973), Stoner Rubber Company, Inc, 123 NLRB 1440 ANVIL PRODUCTS, INC. There was a hiatus of about 4 months after the strike was concluded when the Union did not request bargaining. It was not until after the RD petition was filed on May 30, 1972, that the Union on June 6 requested the resumption of negotiations. Moreover, only about 15 unit employees had actively supported the Union's picketing which lasted less than 2 weeks before it was terminated. Finally, many of the em- ployees who replaced the economic strikers were still employed on the refusal-to-bargain date. Considering the foregoing with the fact that a valid RD petition had been filed on May 30, 1972, there existed an objective basis for the Respondent's doubt of the Union's majority status on June 14, 1972, and its re- fusal to resume negotiations on that date did not vio- late Section 8(a)(5) of the Act.9 In my view, Respondent acted lawfully when it questioned the Union's majority status. 9 See Southern Wipers, Inc, 192 N LRB 816, Viking Lithographers, Inc, 184 NLRB 139 EXHIBIT A January 8, 1973 John B. Waldrip, Esq. National Labor Relations Board Federal Office Bldg., Room 8A24 819 Taylor Street Fort Worth, Texas 76102 Re: Anvil Products, Inc. Case No. 16-CA-4812 Dear Mr. Waldrip: Attached is a proposed order correcting the tran- script in the above case. I note that on page 9 of Respondent's brief it is stated that the "General Counsel concedes that em- ployer has done nothing in violation of the Act to dissipate Union majority." It is my recollection that the General Counsel did disclaim at the hearing any contention that any loss of Union majority was attri- butable to Respondent's alleged violations of Section 8(a)(3). However, as I cannot find any reference to this in the transcript, it is likely that this statement was made off the record. It is requested that the General Counsel advise me by January 15, whether the above correctly reflects the position he took at the hearing. Sincerely, Sidney Sherman Administrative Law Judge EXHIBIT B Mr. Sidney Sherman Administrative Law Judge National Labor Relations Board 1717 Pennsylvania Avenue N W Washington, D.C. 20570 711 January 16, 1973 Re: Anvil Products, Inc. Case No. 16-CA-4812 Dear Mr. Sherman: In reply to your letter of January 8, 1973, John W. Waldrip has resigned from employment with the Board. I have contacted him about the contents of your letter and he advises me as follows: Respondent on page 9 of his brief was not com- pletely correct in stating "General Counsel con- cedes that employer has done nothing in violation of the Act to dissipate Union majority." General Counsel did not concede[d] this point, however, the case was presented under a differ- ent theory. General Counsel's theory was that the union never lost its majority status regardless of the 8(a)(3) violation. Since the union never lost their majority status, respondent by refusing to bargain violated Section 8(a)(5). Again, I repeat, General Counsel did not actually disclaim loss of majority status based on 8(a)(3) violation, the case was tried under a different theory, that being Celanese. Sincerely, Sanford H. Palmer Supervising Attorney DECISION SIDNEY SHERMAN, Administrative Law Judge: The original charge herein was served upon Respondent on June 6, 1972, the complaint issued on August 14, and the case was heard on October 31. The issues litigated related to alleged violations of Section 8(a)(1), (3), and (5). After the hearing briefs were filed by Respondent and the General Counsel? Upon the entire record,3 including observation of the 1 All dates hereinafter are in 1972, unless it otherwise appears 2 At my request, supplemental briefs were filed by both parties 3 For corrections of the record see the order of January 8, 1973 See, also, the order of February 13, 1972, receiving certain exhibits submitted after the hearing 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses' demeanor, the following findings and recommen- dations are made: I RESPONDENTS BUSINESS Anvil Products, Inc., a Texas corporation, herein called Respondent, is engaged in the manufacture of pipefittings, couplings, and related products at its plant in Longview, Texas. It annually ships to out-of-state points more than $50,000 worth of products. Respondent is engaged in com- merce within the meaning of the Act. 11 THE UNION INVOLVED Local Lodge 1923, International Association of Machin- ists and Aerospace Workers, AFL-CIO, herein called the Union, is a labor organization under the Act. III THE MERITS The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(3) and (1) by its failure to make a proper offer of reinstatement to certain striking employees after the abandonment of the strike. 2. Whether Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union after the expi- ration of the certification year. A. Sequence of Events On May 28, 1971, the Union was certified as the represen- tative of Respondent's employees. Negotiations for a first contract continued until January 24, when, pursuant to a strike vote, a number of employees picketed outside the plant. During the strike, certain of the strikers were replaced and given notice of such action by letter from Respondent. On February 3, the Union sent a telegram to Respondent reading as follows: All employees of Anvil Products, Inc., Longview, Tex- as, involved in the strike who are able will return to work unconditionally Monday, February 7, 1972, at 7:00 a.m. The General Counsel complains of the following matters with respect to the treatment of the strikers: Although Craver, who had been replaced, was taken back on February 15, Respondent admittedly treated her as a new hire, refusing to give her credit for her past service in computing her vacation benefits. Stephens, a shipper, who had been replaced, was taken back on February 15, but as a new employee. Tolbert, a goss machine operator, who applied personally for rehire on February 3, was not taken back, although Respondent hired other goss machine opera- tors thereafter. Powell, a maintenance man, was never re- called. The parties resumed bargining on February 11. On May 30, a decertification petition was filed by an employee of Respondent. On May 31, a hearing on the petition was scheduled. On June 5, the Union filed the original charge herein. On June 6, the Union requested another bargaining meeting. On June 14, Respondent declined to meet, con- tending that the Union no longer represented a majority of the employees. On August 28, the RD petition was dis- missed because of the pendency of the instant charge and complaint. B. Discussion 1. The discrimination issue a. Craver She had been replaced during the strike and was refused reemployment when she applied early in February. She was taken back on February 15, but, admittedly, as a new em- ployee, without seniority. The immediate, practical effect of this was to deprive her of vacation benefits that she would otherwise have received. The General Counsel contends that the refusal to restore her former seniority was unlawful under the rule of the Laidlaw case.' Respondent contends only that it was entitled to treat her as a new employee because, when she was taken back, her former job was still filled by a permanent replacement and it was therefore under no obligation to rehire her at all, let alone restore her former seniority. The record shows that Craver was rehired to a job which, while not identical with her former job, was substantially equivalent thereto.5 It was therefore one which, under Laidlaw, Respondent was obliged to offer her. In any case, even if her newjob were entirely different from her old one, that would not justify Respondent in refusing to restore her seniority, in the absence of evidence that it is Respondent's practice to terminate an employee's seniority for all purposes, whenever he is transferred from one job to another. Respondent conceded that it had no such practice, nor was any other business justification offered for the abro- gation of Craver's prestrike seniority. In Laidlaw,6 the Board ruled that, subject to certain quali- fications not here relevant, a permanently replaced econom- ic striker is entitled to an offer of reinstatement whenever a suitable vacancy occurs, and that, absent any legitimate and substantial business justification therefor, his employer may not lawfully take him back as a new employee without seniority. The Board there said (at 1368): ... its offer of employment as a new employee or as an employee with less than rights accorded by full rein- statement (such as denial of seniority) was wholly unre- lated to any of its economic needs, could only penalize [him] for engaging in concerted activity, was inherently destructive of employee interests, and thus was unre- sponsive to the requirement of the statute.7 The Laidlaw Corporation, 171 NLRB 1366 5 Before the strike she was engaged primarily in assembly work and only secondarily in the operation of a press After the strike the reverse was true. 6 The Laidlaw Corporation, supra 7 The complaint, also, alleges a violation of Section 8(a)(1), in that Schurr threatened to withhold benefits from employees because of their participa- tion in the strike The only evidence bearing on this point was certain testimo- ny by Craver regarding her poststrike discussions with Schurr about ANVIL PRODUCTS, INC. 713 It follows that by its failure to restore Craver's pres- trike seniority Respondent violated Section 8(a)(3) and (1). b. Stephens 8 He was a shipper, who participated in the strike, during which he was replaced. He was rehired on February 15, but as a new employee, without seniority, and the only explana- tion offered by Schurr for this was that all the strikers taken back were considered to be new employees. This clearly was not a valid reason for the treatment accorded Stephens. It is therefore found that, in his case, as in Craver's, Respondent's abrogation of prestrike seniority violated Sec- tion 8(a)(3) and (1) of the Act. c. Tolbert He was employed as a goss machine operator before the strike, which he joined on January 24. The record shows that during the strike Respondent hired Galleogs as a re- placement for Tolbert and that the former reported for work at 7 a.m. on February 3, whereupon Respondent prepared a letter to Tolbert notifying him that he had been replaced; that later the same morning, when Tolbert asked Schurr, Respondent's general manager, about the foregoing letter, he replied that it hadn't been mailed yet and that Tolbert could have his job back if he returned to work immediately; that Tolbert's proposal that he delay his return for a few days was rejected by Schurr and he posted the foregoing letter at noon on the same day; that a few hours later Tol- bert, together with some other strikers, offered to return to work; and that Schurr took back the others but told Tolbert he had been "terminated." According to Schurr, Tolbert reacted by pounding on Schurr's desk and declaring that he had "quit" and wanted the wages due him. Although Re- spondent has hired new goss machine operators since Feb- ruary 3, no effort has been made to recall Tolbert. Schurr testified that he probably would have recalled Tolbert, had he not announced his resignation. Tolbert de- nied that he made any such announcement. On the basis of demeanor, Tolbert is credited. In its brief, Respondent contends principally that there was no unconditional offer by Tolbert at any time to return to work, citing denials by Tolbert on direct examination that he ever applied for reinstatement or talked to Schurr about the matter. However, it is apparent that, in making such denials, Tolbert misconstrued the import of the Gener- al Counsel's questions, which elicited those denials, since both Tolbert and Schurr were in agreement that in the af- restoration of her seniority. While he did advise her about her loss of seniori- ty, there is insufficient basis for finding that he, in haec verba, attributed such loss to her strike activity or that what was involved here was anything more than a refusal to restore her prestrike seniority, which refusal is already encompassed in the allegation of discrimination against her Obviously, when one is discharged or denied seniority , notice thereof must be given to the employee in some form So long as such notice does not in terms attribute the action to union activity , it would be tautological to treat such notice as a violation separate and distinct from the discharge or denial of seniority Accordingly, no merit is found in the instant allegation Also referred to in the record as Stevens ternoon of February 3, Tolbert applied for reinstatement 9 and that such offer was rejected on the ground that the letter notifying him of his replacement had already been posted. Respondent contends, further, that there is insufficient competent evidence that there were any openings for goss machine operators after February 3. However, acknowledg- ing that at least one new goss machine operator, McNeal, was hired after the strike,10 Schurr conceded, as noted above, that he probably would have rehired Tolbert at some time or other had he not stated on February 3, that he was quitting. It having been found that Tolbert did not make any such statement, the record is devoid of any business or other justification for the failure to recall Tolbert. [i Such failure was therefore unlawful. e. Powell He was a maintenance employee, who had served as ob- server for the Union at the Board election. He was replaced during the strike by Ballard, who quit on February 18. How- ever, there was no contradiction of Schurr's testimony that Ballard has not been replaced and that, while Hartner, who was hired on May 3, does maintenance work, his job re- quired special qualifications that Powell does not have. Respondent relies, in addition, on the fact that Powell did not report in person on February 7, citing the representation in the Union's February 3 wire that all those who were "able" would return to work unconditionally at 7 a.m. on February 7. An unspecified number of the strikers did in fact report for work on that date and some were rehired. Respondent contends that it was justified in believing that those who did not so report were not "able" to do so and hence not available for work at that particular time; and Schurr insisted that he in fact construed Powell's failure to appear at the plant in the morning of February 7, as indicat- ing a lack of interest in reemployment." Respondent's posi- tion appears to have merit. Accordingly, it is found that Powell would not be entitled to reinstatement, in any event, unless and until he applied in person.13 Moreover, upon the present record, it cannot be found that Respondent has had any opening in Powell's former job or in substantially equiv- alent employment.i4 It will therefore be recommended that 9 As it is undisputed that such application was made, there is no need to consider Respondent's further contention that the Union's wire of February 3, quoted above, was not an unconditional offer of Tolbert's services and therefore not a proper application on his behalf 10 While in his testimony Schurr did not identify McNeal as a goss machine operator, Respondent's records (G.C. Exh 5) list him as such. It appears that he was hired between March 20 and May 30 Compare General Counsel's Exhibits 4 and 5 11 While Tolbert admitted striking Schurr's desk with his hand when he demanded the wages due him, such conduct was not so egregious under the circumstances as to justify the refusal to reinstate him. 12 Powell did not attend the hearing and there was no evidence as to the reason for his failure to report for work on February 7 13 Mississippi Steel Corp, 169 NLRB 647, 662. There is nothing in the record to suggest that Powell is even now interested in reemployment by Respondent (His name was not on the charge and was added to the com- plaint at the hearing According to the General Counsel, this was done because he had just learned from persons other than Powell that he had not been reinstated ) 14 Powell was earning $2 59 per hour. While the record shows new hires since the strike, they were all made in classifications carrying a substantially lower rate of pay 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the allegation as to Powell be dismissed. 2. The withdrawal of recognition a. The appropriate unit In his Decision and Direction of Election the Regional Director found to be appropriate the following unit: All production and maintenance employees of the Em- ployer at its Longview, Texas, facilities, excluding of- fice clerical employees, production control employees, professional employees, technical employees, guards, watchmen, working foremen, and supervisors as de- fined in the Act. Respondent does not dispute that such unit is appropriate and it is so found. b. The Union's majority status Under the Board's ruling in the Celanese case,15 and relat- ed cases 16 it is lawful for an employer to withdraw recogni- tion from a union after the expiration of its certification year, if either one of the two following conditions is met: 1. The employer rebuts the presumption of the union's continuing majority status by proving that the union in fact no longer enjoys the support of a majority of the unit em- ployees, provided, however, that such loss of majority status is not attributable to independent unfair labor practices of the employer. 2. It is found that the withdrawal of recognition was prompted by a good faith doubt that the majority of the employees still desired to be represented by the Union. However, such a finding may be made only if it appears both (a) that such doubt was based on reasonable objective considerations, and (b) that the majority issue was not raised in context of unfair labor practices or other conduct aimed at causing disaffection from the union or indicating that by raising such issue the employer was merely seeking to gain time within which to undermine the union. As to (a) above, the burden of proof is on the employer.'? Here, Respondent contends (1) that there is ample proof that by June 14, the Union had lost its majority status and (2) that, in any event, it should be found that it believed in good faith that such was the case. The General Counsel argues, on the other hand, (1) that the presumption of the Union's continuing majority status has not been rebutted, and (2) that on June 14, Respondent had no reasonable, objective basis for doubting such status and that Respondent's independent violations of Section 8(a)(3) and (1), discussed above, further negate Respondent's good faith." 15 Celanese Corporation of America, 95 NLRB 664 i6 Massey-Ferguson, Inc, 184 NLRB 640, Terre!! Machine Company, 173 NLRB 1480, and cases there cited, enfd 427 F 2d 1088 (C A. 4, 1970), cert denied 398 U S. 929 (1970), Nu-Southern Dyeing & Finishing, Inc, 179 NLRB 573, Windemu!ler Electric, Inc, 180 NLRB 686 17 Nu-Southern Dyeing & Finishing, Inc, 179 NLRB 573, fn 1 There will first be considered the issue as to the Union's majority status. As already noted, the Union was certified on May 28, 1971, as the representative of the above unit.19 On June 6, it requested further bargaining, and on June 14, such re- quest was rejected on the ground that Respondent did not believe that the majority of employees still wanted union representation. Thus, the critical date for purposes of de- termining the Union's majority status is June 6. While there was no evidence as to how many were in the unit on that date, the General Counsel did place in the record as his Exhibit 5 a list of 63 names furnished by Respondent on June 2, to the Board's Regional Director, with the represen- tation by Respondent in a covering letter that they consti- tuted all the employees in the bargaining unit on May 30. Although not disputing the accuracy of this list as reflecting its May 30 payroll, Respondent contends in its brief that there were only 60 employees in the unit at the time the RD petition was filed. The only evidence to that effect was the testimony of Bolton, the sponsor of that petition, that at the time it was submitted to the Board, there were, according to her count, "about 60" timecards in the rack. However, the record shows that the petition was circulated late in April and it is not clear from Bolton's testimony whether her count was made at that time or on the date the petition was filed (May 30). Thus, apart from Bolton's imprecision concerning the number of timecards counted by her, her testimony is clear- ly entitled to less weight than General Counsel's Exhibit 5 on the issue of the number in the unit on June 6. According- ly' it is found that General Counsel's Exhibit 5 is, as repre- sented by Respondent to the Board, an accurate list of those employed by it on May 30, and of their job classifications, and, absent any evidence to the contrary, it is presumed that the situation in that regard was the same on June 6. While, as noted above, in its covering letter of June 2 to the Regional Director Respondent describes the attached list as containing the names of the employees in the bargain- ing unit on May 30, Respondent contended at the hearing that nine "part-time" employees, whose names appeared on the list, were not properly part of the unit. The General Counsel not only opposed this contention but also sought to show at the hearing that Farrar, who was described in the foregoing list as a "night leadman," should be excluded as a supervisor. Moreover, the foregoing list did not include Tolbert, a striker, who, as found above, was entitled to an offer of reinstatement some time before May 30, but re- ceived none. It appears therefore that there was agreement only as to the inclusion in the unit of 53 out of a maximum of 64 employees. 18 In its brief, Respondent asserts that the General Counsel disclaimed at the hearing any contention that such independent unfair labor practices had the effect of dissipating the Union's majority status Although such disclaim- er does not appear in the official transcript, Respondent' s assertion accords with my recollection At any rate, whether or not there was any such express disclaimer, it is clear from the entire record and the General Counsel's brief that he does not affirmatively contend that Respondent's violations of 8(a)(3) and (I) destroyed the Union's majority status but relies on those violations only as reflecting on Respondent's motivation for withdrawing recognition. Accordingly, the matter will be considered only in that light 19 The Board's records, of which I take official notice, show that in the Board's election, which resulted in the Union's certification, the vote was 27 to 18 in favor of the Union ANVIL PRODUCTS, INC. 715 As to the nine part-time employees, the Regional Director's Decision and Direction of Election makes no reference to them and it does not appear that their status was litigated in the RD case. They are high school students who regularly perform unit work 20 to 32 hours a week during the school year, work full time during vacation peri- ods, and are being trained to qualify for full-time employ- ment with Respondent after their graduation. Although they do not enjoy any of the fringe benefits received by the other employees, it is found that by reason of the regularity and extent of their employment and their expectation of future employment by Respondent they have sufficient community of interest with the rest of the unit to warrant their inclusion therein. As for Farrar, whose status does not appear to have been litigated in the RC case,20 he is the ranking employee on the night shift, directing the work of as many as eight others, and reporting directly to the plant superintendent. He may send an employee home for disci- plinary reasons and may grant time off. His pay is 50 cents an hour more than that of the next highest paid man on the night shift. While there was no contradiction of Schurr's testimony that, in directing the work of the rest of the night shift, Farrar is merely relaying instruction from higher man- agement, the fact that Farrar has discretion to take discipli- nary action and to grant time off suffices to establish his status as a supervisor. As for Tolbert, although he had been permanently re- placed at the time he unconditionally applied for reemploy- ment, he was on June 6 still an "employee" within the meaning of Section 2(3) of the Act and entitled to be count- ed as in the unit for the purpose of determining the Union's majority status.21 Thus, excluding Farrar but including Tolbert and the nine part-time employees, I find that the unit contained 63 employees on May 30. The RD petition bears the names of only 30 employees, all of whom appear on the May 30 payroll. Schurr testified that, in addition, Bennie Dixon, although she did not sign the decertification petition,22 told him on an unspecified date before May 30, that she did not want to be represented by the Union. However, the fact that she did not sign the petition casts doubt on the reliability of her statement to Schurr as a true expression of her union sentiments.23 Moreover, even if she be counted as opposed to the Union, Respondent would have proved through the evidence summarized to this point only that 31 out of 63 employees in the unit on May 30 did not desire union repre- sentation. Accordingly, it is found that such evidence does not suffice to establish that the Union had lost its majority status on June 6. Respondent contends, further, that the Union's loss of 20 Although three other "working foremen" whose status was litigated in the RC case were there found to be supervisors, Respondent contends that their duties were different from those of Farrar 21 C H Guenther & Sons, Inc, 174 NLRB 1202, Getlan Iron Works, Inc, 175 NLRB 864, The Laidlaw Corporation, 171 NLRB 1366, NLRB v Fleetwood Trailer Co, 389 U S 375 (1967) 22 The General Counsel's brief erroneously refers to her as a signatory of that petition 23 Dixon did not testify As to the reliability of a disclaimer by an employ- ee, in the presence of an employer of prounion sentiments, even when such disclaimer is made under oath, see N L R B v Gissel Packing Co, 395 U S 575, 608 (1969) majority status was sufficiently shown by the following cir- cumstances: (a) The fact that the strike was not supported by a major- ity of the employees. (b) The fact that most of the 14 employees hired as re- placements for the strikers were still in Respondent's em- ploy on June 6 whereas most of the strikers were no longer so employed on that date. As to (a), while the only testimony on this point indicates that not more than 15 employees participated in the strike, Respondent asserts in its brief that "of about 50 employees, approximately one-half" did not report for work during the strike,24 which may be taken as a concession that Respon- dent is still uncertain whether or not a mathematical majori- ty of the employees supported the strike. Be that as it may, the Board and the courts have constantly refused to regard the failure of a majority of the employees to support a strike as proof of loss of a union's majority status. That is so because obedience to a union's strike call depends not only on loyalty to the union but also on willingness to weather the economic hardships of a strike 25 As to (b) above, the Board has held that an employer's reliance on employee turnover, however great, is misplaced even where such turnover is cited only2 to show a reasonable doubt of the union's majority status. 6 It follows, a fortiori, that such turnover will not suffice to establish an actual loss of majority. Upon consideration of all the foregoing matters, it is found that the evidence adduced by Respondent, consid- ered separately or together, does not suffice to prove that the Union lost its majority status at any time here relevant.27 c. The good faith doubt In support of its contention that, in any event, it believed in good faith that by June 6, the Union had lost its majority status, Respondent cites in its brief the following matters: (a) The fact that before the Union's request of June 6, for a bargaining meeting there had been no bargaining or re- quest for bargaining since February 11. (b) Certain alleged representations made by the sponsor of the RD petition to Schurr as to how many had signed it. (c) The allegation that the mere filing of the RD petition raised a question concerning representation that precluded further recognition of the Union until that question had been resolved. As to (a), it is true that the Union did not seek bargaining for a 4-month period prior to June 6, and that the last 24 It may be that the lower figure, given at the hearing by Craver, refers to the number who picketed, whereas Respondent' s estimate includes those who would not cross the picket line 25 Industrial Workers, Local 289 v N L R B, 476 F 2d 868 (C A.D C, 1973), and cases there cited 26 Massey-Ferguson, Inc, 184 NLRB 640, and cases there cited at In. 11. 27 In Taft Broadcasting, 201 NLRB No 113, the Board held that the burden of proof on the issue of a union's retention of its majonty status shifted to the General Counsel after the employer had made a sufficient showing to raise "a serious doubt" on that issue However, the Board there stressed the result of a secret poll by the employer and the absence of independent unfair labor practices, factors not here present Moreover, there is an apparent conflict on this point between Taft Broadcasting and cases like Massey- Ferguson, supra, and Terry Manufacturing, surpa, none of which was consid- ered in Taft Broadcasting 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communication between the parties during that period oc- curred on March 20, when Respondent complied with the Union's request for a list of unit employees. The record contains no explanation for this hiatus in bargaining. How- ever, it may be noted initially that, while the point is urged in Respondent's beef, there was no testimony by Schurr (or any other representative of management) that the foregoing hiatus in bargaining was one of the reasons for Respondent's belief that the Union had lost its majority status. Moreover, while it has on occasion given weight to a protracted suspension of bargaining as warranting the belief that a union lost its majority status, the Board has done so only in the absence of any independent unfair labor practices.28 Here, however, it has been found that Respon- dent did engage in independent unfair labor practices by violating Section 8(a)(3) and (1). As to (b), above, the Board has long held that the filing of an RD petition, in itself, does not warrant the belief that a majority of the employees are antiunion, since such peti- tion need be supported by only 30 percent of the unit.29 However, here, Respondent attempted to show that, in esti- mating how many employees were opposed to the Union, it relied not only on the fact that the RD petition had been filed but also on the representation to Schurr by Bolton, who circulated the petition, that it was supported by 50 percent or more of the employees. Schurr's testimony on that point was marred by the fact that, although he at first attributed to Bolton the statement that over 50 percent had signed, later in his testimony the following colloquy occurred: Q. Now, I want to know exactly what Mrs. Bolton said to you. Did she say a majority of the employees wanted to kick out the Union? A. I think she used the word 50 percent. Q. She said 50 percent wanted to get rid of them? A. Right. Q. Tell us again what she said about how many had signed the petition. There seems to be a conflict in your testimony. A. 50 percent signed. Q. 50 percent? A. Signed the petition. Q. She didn't say over 50 percent? A. O.K., over 50 percent. Q. Which is it? A. Over 50 percent. Q. Now, are you sure? It is very important. A. It is? Well, then, it is over 50 percent. If I am under oath it is over, for the record. 28 Southern Wipers, Inc, 192 NLRB 816, Viking Lithographers, Inc, 184 NLRB 139. Cf Fred Tuch Buick, infra 29 G A F Corporation, 195 NLRB 169, Wabana, Inc, 146 NLRB 1162, 1171, Industrial Workers, Local 289 v NLRB , 476 F 2d 868 (C A D C , 1973) The foregoing conflicting versions given by Schurr of Bolton's statement, his abrupt return to the initial version, and the implication that he was willing to testify to whichev- er one was the more expedient, are all circumstances sen- ously impairing his credibility. Moreover, although Bolton, who was still in Respondent's employ at the time, had ample reason to corroborate Schurr, she failed to do so, professing to be unable to recall what she told Schurr about the num- ber who had signed the petition. Accordingly, I do not credit either of the versions given by Schurr concerning her representations on that point.30 In any case, here, as elsewhere, Respondent's independent un- fair labor practices preclude a finding of a good-faith doubt on the basis of Bolton's representations to Schurr. As to (c), Respondent contends, further, that under the recent decision in Telautograph Corporatton,31 it is no longer material whether Respondent was told anything about the number of employees supporting the RD petition, the mere pendency thereof being sufficient to warrant withdrawal of recognition. In that case, which involved an allegedly un- lawful withdrawal of recognition after a decertification elec- tion had been directed, the Board was unanimous in dismissing the complaint but divided as to the reason there- for. Two members apparently relied on the fact that the election had already been ordered and the absence of any independent unfair labor practices.32 Three members, how- ever, indicated that they deemed it sufficient that a valid decertification petition had been filed, analogizing the situa- tion to that where an incumbent union seeks to bargain during the pendency of an RC petition filed by a rival union, and citing the rule enunciated in Shea Chemical Cor- poration 33 that in such a case "an employer may not go so far as to bargain with incumbent (or any other) union until the question concerning representation has been settled by the Board." The majority in Telautograph added: The same rule should be applied where a real question concerning representation has been raised by the time- ly filing of a decertification petition. As in the case of a petition filed by a rival union, the incumbent union may still continue to administer its contract and pro- cess grievances, and the rule does not apply to situa- tions where, because of contract bar, certification year, inadequate showing of interest, or any other estab- lished reasons, the decertification petition does not raise a real representation question. The majority stated further that in the future there would be no need to delay the processing of a properly supported decertification petition because of the filing of an 8(a)(5) charge, "since such charge could be promptly dismissed as nonmeritonous unless, of course, the charge contains alle- 30 While it was immaterial whether Bolton said 50 percent or more than 50 percent had signed, since in either case the Union would no longer have had the support of a majority of the employees, that circumstance does not mitigate the impression created by the record that Schurr's entire testimony on the point was contrived 31 199 NLRB No 117 32 These circumstances were stressed by the Administrative Law Judge, whose rationale the minority adopted 33 121 NLRB 1027 ANVIL PRODUCTS, INC. gations that the Respondent has committed some act (other than its mere refusal to bargain) which may be a proper basis for finding a violation of an Act." The last-quoted language would seem to indicate that the legality of a with- drawal of recognition during the pendency of an otherwise valid RD petition is still unlawful, if it occurs in a context of independent unfair labor practices. Thus, it appears that the Board majority in Telautograph meant to say only that, absent any independent unfair labor practices, an employer is free to withdraw recognition from an incumbent union during the pendency of a valid RD petition. That, in itself, would represent a significant change in the preexisting Board view that the pendency of an RD petition alone does not warrant withdrawal of recognition even where the em- ployer engages in no independent violations of the Act. Some further light was shed on the matter by Fred Tuch Buick, 199 NLRB No. 118, which was issued on the same day as Telautograph, and which involved presettlement and postsettlement refusals to bargain with an incumbent union on the ground of alleged loss of majority status. In each instance, such refusal occurred during the pendency of an RD petition. As to the postsettlement refusal, the Board found a violation because it deemed the recently executed settlement agreement to be a bar. As to the presettlement refusal, the Board stated it was adopting "the Trial Examiner's Decision in its entirety." That decision cited the rule of the Celanese case supra, that the Board will not find a good-faith doubt where the employer withholds recogni- tion in the context of unfair labor practices or other conduct tending to undermine the union, and the Trial Examiner found that under that rule the respondent's withdrawal of recognition after the filing of the initial RD petition was unlawful, because such withdrawal occurred in the context of other violations of the respondent's bargaining obliga- tion. Here, it has been found that Respondent did discriminate against three of the strikers, abrogating the prestrike senion- ty of Craver and Stephens and failing to offer reinstatement to Tolbert. Moreover, Respondent admitted that not only Craver and Stephens, but all those strikers who returned to work, were taken back as new employees without seniority. It is appropriate to infer that such abrogation of seniority, which was effected for no reason other than the employees' participation in a strike called by the Union, would tend to cause disaffection from the Union not only on the part of the victims of such discrimination but also on the part of the rest of the employees. It is therefore found that Respondent's independent un- fair labor practices preclude a finding that its withdrawal of recognition was based on a good-faith doubt of the Union's majority status, and it is concluded that by such withdrawal Respondent violated Section 8(a)(5) and (1). IV THE REMEDY It having been found that Respondent violated Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and take appropriate affirmative action. Such action shall in- clude an appropriate offer to reinstate Tolbert, restoration of the seniority of Craver and Stephens, and indemnifying 717 all of them for any monetary loss suffered by reason of the discrimination against them. Backpay shall be computed in accordance with the formula prescribed in F. W. Wool- worth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. Respondent violated Section 8(a)(3) and (1) of the Act by failing to offer reinstatement to Donald Tolbert and by denying Jo Ann Craver and Roger Stephens their prestrike seniority. 3. Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the represen- tative of its employees. 4. Such violations constituted unfair labor practices af- fecting commerce. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommend- ed: ORDER 14 Respondent, Anvil Products, Inc., Longview, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Local Lodge 1923 , Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as the representative of its employees in the unit described below, concerning wages, hours, and other terms and conditions of employment: All production and maintenance employees at Respondent's Longview, Texas, plant, excluding office clerical employees, production control employees, pro- fessional employees, technical employees, guards, watchmen, working foremen, and supervisors as de- fined in the Act. (b) Refusing to reinstate, abridging the seniority of, or otherwise discriminating against , employees because of their concerted activities on behalf of Local Lodge 1923, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other union. (c) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join or assist the above-named Union or any other labor organization , to bargain collectively through representatives of their own choosing, and to en- 34 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Bargain upon request with the above-named Union as the representative of its employees in the aforesaid unit, and, if any understanding is reached, embody it in a signed written agreement. (b) Offer to reinstate Donald Tolbert to his former posi- tion or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and restore the prestrike seniori- ty of Jo Ann Craver and Roger Stephens. (c) In the manner prescribed in the "Remedy" section of the Administrative Law Judge's Decision, make the afore- named employees whole for any monetary loss suffered as a result of Respondent's discrimination against them. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (e) Post at its place of business in Longview, Texas, co- pies of the attached notice marked "Appendix." 35 Copies of said notice, on forms to be provided by the Regional Direc- tor for Region 16, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that such notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the com- plaint not sustained herein be dismissed. 35 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. WE WILL bargain upon request with Local Lodge 1923, International Association of Machinists and Aerospace Workers, AFL-CIO, as the representative of our employees in the unit described below, and, if any understanding is reached, embody it in a signed written agreement: All production and maintenance employees at our Longview, Texas, plant, excluding office clerical em- ployees, production control employees, professional employees, technical employees , guards, watchmen, working foremen and supervisors as defined in the Act. WE WILL NOT refuse to reinstate, abridge the seniority of, or otherwise discriminate against employees for en- gaging in concerted activities on behalf of Local Lodge 1923, International Association of Machinist and Aerospace Workers, AFL-CIO, or any other union. WE WILL offer to reinstate Donald Tolbert to his for- mer position or, if such position no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges. WE WILL restore the prestrike seniority of Jo Ann Craver and Roger Stephens. WE WILL compensate Donald Tolbert, Jo Ann Crav- er, and Roger Stephens for any wages or other mone- tary benefits lost as a result of our discrimination against them. Dated By ANVIL PRODUCTS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, ^r covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2938.