Pan-Abode, Inc.

PAN-ABODE, INC. Pan-Abode, Inc. and Lumber Production and Industri- al Workers Union, Local No. 2519, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 19-CA-7463 January 16, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On July 14, 1975, Administrative Law Judge Hen- ry S. Sahm issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a brief in support thereof. 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 only to the extent that they, are consistent herewith. We agree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act by virtue of, the statements of its owner, Jen- sen, made to employee Landreth, in which he brand- ed Landreth a troublemaker and threatened that his job was in jeopardy unless he withdrew the charges he had made against Respondent. However, the Ad- ministrative Law Judge found that the evidence was insufficient to sustain the allegations that Respon- dent had violated Section 8(a)(3), (4), and (5) of the Act by virtue of its various actions in disregard of the collective-bargaining agreement, and by other dis- criminatory actions taken against employees because of their union and protected activities. Accordingly, he recommended that the amended complaint be dis- missed with respect to each of the remaining allega- tions. The General 'Counsel has filed exceptions to the latter findings which, for the reasons hereinafter set forth, we find meritorious. There is no dispute as to the facts in this case, which are set out in the attached Decision. Respon- dent and Local No. 2519 have had a collective-bar- gaining agreement in effect for many years, including the pertinent period herein. In each of these agree- ments, there has been, a provision by which Respon- dent recognizes that'the principle of seniority applies to those employees covered by the agreement, condi- tioned only by the usual phrase, "competency and ability considered." In addition to a union-security provision, the current contract contains a description 313 of the unit covered by the agreement that specifically includes temporary and part-time employees. The events which gave rise to the charges herein are likewise uncontested. A brief chronology of these events begins on October 24, 1974.' On that date em- ployee Landreth, with 8 years' seniority, was laid off, while less senior employees continued to work. The next day Landreth met with the Union's business agent, Biringer, and, after discussing the merits of raising a complaint with Respondent, they met with Plant Manager Sester to discuss the grievance. Sester told them that they would have to take it up with Jensen, who was out of town until October 31. Al- though Jensen did return on that date and Biringer contacted Sester about discussing the grievance, Ses- ter asked that any discussion be postponed-until after November 6 because of the pending sale of the busi- ness. While the record is unclear as to what, if any- thing, occurred on November 6 with respect to com- munications between Respondent and Biringer and Landreth, it is clear that Jensen was unsuccessful in his attempt to sell his business and no substantive discussion of the grievance occurred? On November 7, Biringer sent a certified letter to Jensen, again demanding a meeting to discuss the Landreth layoff. This letter was followed by similar letters sent by Biringer on November 15 and 27 and December 20. Respondent failed to answer any of these letters. From November 20 to 26, Respondent hired five employees as temporary laborers at a wage of $3.50 per hour. The starting wage rate in the current con- tract is $4.32 per hour.These employees were laid off on various dates, the last of which was December 6. On December 3, Respondent laid off another group of employees, including employees Montieth, Stevens, and Demery, while retaining several less se- nior men. The charges herein were filed on December 13. Some 2 months later, on February 19, 1975, Lan- dreth returned to work. On that day, Jensen called Landreth aside from his work station and away from the other employees, and made the threatening state- ments about his being a troublemaker, which we have already found violative of Section 8(a)(1) of the Act. On March 14, 1975, Respondent unilaterally im- plemented an unscheduled wage increase that had been granted the week before. The Union was never notified. Landreth and another man were the only All dates hereafter are in 1974, unless otherwise indicated. z Sester testified that his discussion with Landreth and Biringer on Octo- ber 25, which occurred in the lunchroom, was limited to their claim that Landreth's seniority rights had been violated and their request to discuss the matter, to which he replied that it would have to be taken up with Jensen. 222 NLRB No. 42 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experienced employees who were not given the raise. A week later, on March 20, 1975, after the first day of the hearing in this case, the wage increase was unilaterally withdrawn by Respondent. A. Landreth's Layoff Although the Administrative Law Judge recom- mended dismissing "the allegation with respect to Landreth's discriminatory layoff on October 24," it is clear from the complaint that Respondent 's actions on October 24 and thereafter with respect to Lan- dreth were never alleged to have been a violation of Section 8(a)(3) of the Act. Rather, General Counsel has always contended that by laying off Landreth, while less senior employees remained working, Re- spondent refused to be bound by the seniority provi- sions of the collective-bargaining agreement , thereby effecting a unilateral change in that agreement. Moreover, Respondent's subsequent refusal to meet and discuss the grievance raised by Landreth through the Charging Party is further evidence of Respondent's refusal to be bound by the agreement's grievance procedure, which constitutes a unilateral change in the agreement, as well as a refusal to bar- gain in violation of Section 8(a)(5) of the Act. We agree with General Counsel 's contentions. Initially, we note the uncontested fact that the Charging Party made seven separate demands on Respondent, from October 25 through December 20, to meet and discuss Landreth's layoff , and that Re- spondent failed and refused to do so. It is impossible for us to find on this record, as the Administrative Law Judge apparently has, that Re- spondent was acting in good faith to fulfill its bar- gaining responsibilities with regard to Landreth's grievance when, over a 2-month period of continuing demands from the Charging Party, it never once either requested a definite date for substantive dis- cussion of the grievance or responded in any way with regard to the merits of the Charging Party's claim. Inasmuch as Respondent admitted that it nev- er communicated any of the various difficulties it was having at the time to the Charging Party, but instead raised these matters only after the fact in its contentions before the Administrative Law Judge, we find, contrary to the Administrative Law Judge, that such exigencies, even if true, are irrelevant to any consideration of Respondent's obligation to bargain in good faith with the Charging Party at the time of its demands. We also find, as alleged by General Counsel, that Respondent's actions were in disregard of the senior- ity provision of the collective-bargaining agreement and constituted a unilateral modification of that agreement in violation of Section 8(a)(5) of the Act 3 In reaching this conclusion, we begin with the clear language of the agreement by which Respon- dent agreed to follow seniority. The Administrative Law Judge, however, finds that Respondent is only bound to follow seniority on a departmental basis. He reads such a limitation into the agreement based solely on Sester's testimony, which he credits, that Respondent has never transferred employees from one department to another in a reduction in force, but instead effects layoffs on a departmental basis because of quality control considerations. Sester fur- ther testified that he was not aware of Landreth's ability to operate machines in departments other than that in which he was working at the time, and that, in any event, Biringer never requested a transfer for Landreth to a specific job to counteract his lay- off. Contradicting the above is the fact that there is no reference in the agreement to departmental consider- ations, either in the seniority provision or elsewhere. In addition, Landreth's testimony stands uncontra- dicted that at the time he was laid off he had previ- ous work experience with Respondent performing 7 out of the 11 jobs that continued to operate after October 24. Even Sester's testimony that he was un- aware of Landreth's qualifications supports a finding contrary to that of the Administrative Law Judge. Finally, regardless of whether Biringer asked for a particular job for Landreth, the agreement provided for his right to remain working in a job for which he was qualified, in preference to less senior employees. We can hardly find fault with the Charging Party for failing to make a detailed request on Landreth's be- half when, as we have pointed out above, Respon- dent failed and refused to engage in any substantive discussion of his layoff, despite the many attempts by Biringer to have it do so. We find therefore that the Administrative Law Judge's conclusions are clearly against the weight of all the relevant evidence. Accordingly, by disregard- ing the seniority provision in its agreement with the Charging Party, Respondent has unilaterally modi- fied the agreement in violation of Section 8(a)(5) of the Act. B. Temporary Laborers General Counsel alleged, but the Administrative Law Judge failed to find, that Respondent's action in 3 The pertinent provision in the contract states The Employer also recognizes the principle of seniority and that old- er employees are entitled to work in preference to newer employees competency and ability considered PAN-ABODE, INC. 315 hiring five temporary laborers at a beginning wage below that called for in, the collective-bargaining agreement violated Section 8(a)(3) of the Act. The Administrative Law- Judge based his recommenda- tion on his reasoning that, inasmuch as the collec- tive-bargaining agreement has a union-security pro- vision which requires - new employees to become members of the Union by the 31st day of their em- ployment, these temporary laborers (who only worked 14 days) were not within the unit and thus not covered by the collective-bargaining agreement. The Administrative Law Judge's reasoning mis- construes the meaning of,union-security provisions as well as the concept of what constitutes a unit. These clauses require new employees to become members of the Union within 31 days of 'first em- ployment, but obviously do not forbid or prohibit membership prior to that -time. Furthermore, the question of whether or not an employee is within a particular unit has nothing to do with his ' union membership under a union-security provision, but rather is a concept connected with his job function vis-a-vis the other members of the unit. In addition, the Administrative. Law Judge failed to discuss the collective-bargaining agreement itself, which is part of the record. In the recognition clause, Respondent specifically acknowledges that the agree- ment applies to temporary and part-time employees 4 General Counsel's allegation that Respondent's actions violated Section 8(a)(3) is premised upon the admission by Sester that these, five temporary em- ployees were not paid Union scale because they were not members of the Union. Inasmuch as Section 8(a)(3) prohibits discrimination based on union-relat- ed considerations, we find, in reliance on Respondent's own statement of its reasons, that its actions in paying these unit employees less than that called for in the collective-bargaining agreement vio- lated that section of the Act. C. Layoff of Montieth, Stevens, and Demery These three employees were laid off on December 3, while the temporary laborers remained working. For the reasons stated above with respect to Landreth's layoff, we find these layoffs constitute further evidence of Respondent's refusal to be bound by the seniority provision in the collective -bargaining agreement. Moreover, according to the undenied af- This provision states that: The Employer agrees to recognize the Union as the sole collective bargaining agency for all its employees excluding office personal [sic] and agrees to bargain with the Union on all matters as to hours of labor, wages and other conditions of employment This includes tem- porary and part time employees (as per industry settlement). fidavit of Sester, which was admitted into evidence, these men were laid off while the temporary laborers continued to work because the temporaries did not belong to the Union and Respondent did not want to pay the contract wage for the cleanup work that re- mained to be completed. Accordingly, as the deci- sion to layoff these three employees on December 3 was based on their union affiliation, we find, as above, that Respondent thereby violated Section 8(a)(3) of the Act. D. Wage Increases and Rescission It is uncontested that on March 7, 1975, Respon- dent granted a wage increase to unit employees with- out notifying the Union, and on March 20, 1975, re- scinded that increase, again without giving prior notice to, or bargaining with, the Union. Although these actions were alleged by General Counsel to be separate violations of Section 8(a)(5), the Adminis- trative Law Judge found them to be isolated and of limited impact and therefore failed to find the viola- tions as alleged. In reaching this conclusion, the Ad- ministrative Law Judge commented that "[t]he evi- dence does not warrant an inference that these incidents were causally connected or motivated for the purpose of invidiously influencing the employees in a proscribed manner." He also noted at length in the Decision evidence that Respondent had a past practice of granting merit increases, upon request by individual employees, which were accomplished without consultation with the Union. Again we must note both legal and factual error in the Administrative Law Judge's reasoning. In order for General Counsel to prove a prima facie case with respect to an alleged violation of Section 8(a)(5), he need only prove that an obligation to bargain under Section 9(a) existed and that Respondent refused to bargain either directly or did not bargain by unilater- ally effecting a change in working conditions. Not only is Respondent's motivation in instituting such changes totally irrelevant in determining the exis- tence of a violation under Section 8(a)(5), but such considerations may, as alleged in this case, provide the predicate for finding the same actions violative of other sections of the Act. It is clear that the wage increase was granted across the board to all of Respondent's employees who had any significant tenure,5 was instituted by Jensen, and was not the result of individual employ- ees seeking merit increases. On the basis of the above, we find that the Admin- 5 The record shows that on March 7, 1975, there were nine regular full- time employees on Respondent's payroll, plus four newly hired employees All of the new hires had been working less than a month ' Of these, seven of the nine regular employees received the wage increase 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD istrative Law Judge's conclusions are clearly against the weight of the evidence, and find that Respondent's actions in unilaterally granting on March 7, 1975, and rescinding on March 20, 1975, an unscheduled wage increase to unit employees violat- ed Section 8(a)(5) of the Act. E. Wage Increase Withheld From Landreth Of the nine regular full-time employees on the pay- roll on March 7, 1975, only Landreth and another employee did not receive the wage increase . General Counsel alleges that, based on the entire record in this case, such action violates Section 8(a)(3) and (4) of the Act. Contrary to the finding of the Adminis- trative Law Judge, we agree with the General Coun- sel. The finding above that Respondent's threats to Landreth for causing trouble by his union activities violated Section 8(a)(1) provides a sufficient basis for concluding that Respondent's subsequent wage dis- crimination against Landreth on March 7, 1975, vio- lated Section 8(a)(3), and we so find . In this connec- tion we note that Respondent has completely failed to provide a rational basis to distinguish Landreth, or Landreth and Demery (the other regular employee who was not given the increase), from the other long- tenured employees who were given the raise. We also find that the above facts, along with Jensen's undenied threat to Landreth that if he did not withdraw the charges against the Respondent his (Landreth's) job was temporary support General Counsel's allegation that by withholding the increase from Landreth Respondent also violated Section 8(a)(4) of the Act, which prohibits discrimination against an employee because he has filed a charge with the Board or has given testimony under the Act. REMEDY As we have found that Respondent has refused from October 25 to acknowledge or be bound by the seniority and grievance provisions of its collective- bargaining agreement with the Union, and has laid off employees Hugh Landreth on October 24, and Robert Montieth, Max E. Stevens, and Chester C. Demery on December 3, while less senior employees continued to work, thereby effecting , a unilateral modification of such agreement, in violation of Sec- tion 8(a)(5) of the Act, we shall order the Respondent to cease and desist therefrom and to bargain, on re- quest from the Union, concerning the matters raised in the above-mentioned grievance. As we have also found that the Respondent has discriminated against Robert S . Barbee, James L. Roedel, Jr., Terry Steger, John Meyer, and Leonard Swanson by paying them less than the wage rate called for in the collective-bargaining agreement be- tween Respondent and the Union , in violation of Section 8(a)(3) of the Act, we shall order Respondent to make them whole for any loss of pay they may have suffered as a result of Respondent's discrimina- tion by payment to them of a sum of money equal to that which they would have earned but for Respondent's discrimination, together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accor- dance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having further found that Respondent, on March 7, 1975, unilaterally granted an unscheduled wage in- crease to unit employees, without first notifying or bargaining with the Union , in violation of Section 8(a)(5) of the Act, we shall order Respondent to cease and desist therefrom and post the appropriate notices. However, nothing in our Order herein shall be construed as requiring a rescission of the said in- crease. Having also found that Respondent, by uni- laterally withdrawing said increase on March 20, 1975, has also violated Section 8(a)(5) of the Act, we shall order Respondent to cease and desist there- from, and to post the appropriate notices. Finally, having found that Respondent has dis- criminated against Hugh Landreth by withholding from him the March 7, 1975, wage increase, because of his union activities and because of his filing these charges, in violation of Section 8(a)(3) and (4) of the Act, we shall order Respondent to cease and desist therefrom, to make 'him whole for any loss of earn- ings occasioned thereby, with interest as above, and to post the appropriate notice. AMENDED CONCLUSIONS OF LAW Substitute the following for the Administrative Law Judge's Conclusions of Law 2: "2. By failing and refusing to be bound by the col- lective-bargaining agreement with the Union, Re- spondent has violated Section 8(a)(5) of the Act. "3. By discriminating against employees by pay- ing them less than the contract wage because of union considerations , Respondent has violated Sec- tion 8(a)(3) of the Act. "4. By unilaterally granting and then rescinding an unscheduled wage increase without bargaining with the Union, Respondent has violated Section 8(a)(5) of the Act. "5. By discriminating against an employee for union activities as well as for filing charges under the Act, Respondent has violated Section 8(a)(3) and (4) of the Act." PAN-ABODE, INC. 317 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Pan-Abode, Inc., Renton, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening any employee with job reprisal should he engage in activities protected under Sec- tion 7 of the Act. (b) Failing and refusing to be bound by, or unilat- erally modifying, the collective-bargaining agreement with the Union. (c) Discriminating against employees because of union-related considerations. (d) Unilaterally granting or withdrawing wage in- creases without first bargaining with the Union. (e) Discriminating against employees for union activities or for filing charges under the Act. (f) In any like or related manner interfering with, restraining,, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, apply and extend the grievance and seniority provisions of the above-mentioned col- lective-bargaining agreement with the Union to its employees in the appropriate unit. (b) Upon request, bargaining collectively with the Union concerning the unilateral wage increase insti- tuted on March 7, 1975, and its subsequent rescission on March 20, 1975. Nothing in this Order shall be construed as requiring rescission of said wage in- crease. (c) Make whole Hugh Landreth for any loss of earnings occasioned by withholding from him the wage increase granted on March 7, 1975, in the man- ner described in this Decision in the section entitled "Remedy." (d) Make whole Robert S. Barbee, James L. Roe- del, Jr., Terry Steger, John Meyer, and Leonard Swanson for any loss of pay occasioned by Respondent's discrimination, in the manner de- scribed in this Decision in the section entitled "Rem- edy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its place of business copies of the at- tached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 WE WILL NOT threaten any employee who en- gages in union activities with job reprisal. WE WILL extend or apply the grievance and seniority provisions of the collective-bargaining agreement with Lumber Production and Indus- trial Workers Union, Local No. 2519, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, to our employ- ees. WE WILL NOT refuse to be bound by, nor will we unilaterally modify, the collective-bargaining agreement with Local No. 2519. WE WILL NOT discriminate against employees by paying them less than the wage rate estab- lished in the collective-bargaining agreement be- cause they are not members of Local No. 2519. WE WILL NOT unilaterally grant or rescind wage increases without first giving notice to and bargaining with Local No. 2519. WE WILL NOT discriminate against any em- ployee for engaging in union activities or for fil- ing charges under the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. WE WILL, upon request, bargain collectively 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union concerning the unilateral wage increase instituted on March 7, 1975, and re- scinded on March 20, 1975. WE WILL pay Hugh Landreth for any loss of pay suffered as a result of not applying to him the wage increase granted on March 7, 1975, with interest at 6 percent per annum. WE WILL pay to Robert S. Barbee, James L. Roedel, Jr., Terry Steger, John Meyer, and Leo- nard Swanson for any loss of pay as a result of not applying to them the wage rate called for in the collective-bargaining agreement with Local No. 2519. PAN-ABODE, INC. DECISION STATEMENT OF THE CASE HENRY S. SAHM, Administrative Law Judge: This case was heard at Seattle, Washington, on March 20 and 21, pursuant to a charge filed on December 14, 1974, amended on January 7, 1975, and a complaint issued on January 31, 1975, which was again amended on March 20 and 21,1 the first and second days of the hearing.2 Primary issues in- volved in this proceeding are whether the Respondent Company discriminatorily laid off employees; refused to meet with the Union to discuss said layoffs; paid nonunion employees less than the wage rate called for in the parties' collective-bargaining agreements ; threatened, coerced, and intimidated an employee ; granted employees wage increas- es on March 7, 1975, without giving notice to the Union and rescinded these same wage increases on March 20, 1975, without notifying said Union; and also violated Sec- tion 8(a)(4) of the Act which prohibits discrimination against an employee who has filed charges or given testi- mony under the Act. After careful consideration of the briefs filed by the General Counsel and Respondent on April 21, 1975, there are hereby made the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT EMPLOYER AND THE LABOR ORGANIZATION INVOLVED The Respondent Company, Pan-Abode, Inc., the em- ployer, is a corporation organized under the laws of the State of Washington, which has its principal place of busi- ness at Renton, Washington. At this plant, approximately 14 unit employees work are engaged in manufacturing pre- cut cedar homes. There is a nonunion office staff of four people. During the past year, Respondent has derived reve- t Except where otherwise specified , all dates herein refer to the year 1974. 2 The complaint was orally amended at the hearing on March 20, 1975, reduced to writing and issued on March 31 , 1975, 9 days after the hearing concluded. The complaint, as amended, erroneously alleges that Landreth was not recalled to work after his layoff . It is uncontroverted that he re- turned to work on February 19, 1975. nues in excess of $50,000 from shipping its precut homes to points outside the State of Washington . Respondent ad- mits, and it is found, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is further acknowledged by the parties that Lumber Production and Industrial Workers Union, Local No. 2519, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the Charging Party Union, and referred to herein as the Union, is a labor orga- nization within the meaning of Section 2(5) of the National Labor Relations Act, as amended, herein called the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES Introduction As so frequently happens where violations of Section 8 of the Act are alleged, the usual circumstances under which this situation arises is set against the background of a union organizational campaign among employees . Howev- er, in this case, the Charging Party Union has represented the Respondent Company's approximately 14 production employees for more than 20 years. During that period of time the relationship between the employer, Aagar Jensen, owner of this small company for the past 23 years, and the Union herein, has been exceptionally pleasant as evi- denced by the fact that the Company has not been in- volved in any litigation involving the Union„ nor has the Union ever filed a grievance against the employer. The present case arose when the Company shut down its plant for the slow season as it has done each autumn in the past. Normally, the plant operates at full production dur- ing its busy season which lasts from about the first of each year to around October or November. In 1974 the plant was shut down from October 24, 1974, to February 18, 1975. The normal annual shutdown of previous years was more severe in 1974-75 because of economic conditions which resulted in a recession throughout the nation. It is not too unreasonable to assume that this situation might have contributed to Jensen's attempting during the fall of 1974 and early 1975 to sell his business. The Union was aware of this. Hugh Landreth, the alleged discriminatee, was first em- ployed by Pan-Abode in April 1966 . Since 1972, he has been a helper to Carl Wooley, the foreman of Respondent's sash and door department of the carpenter shop. Landreth and Wooley are the only two employees in this particular department and they work in a structure separate from the plant building where the other 12 pro- duction employees work. On October 24, 1974, Landreth was laid off. The follow- ing day, he met with Robert Biringer , the business repre- sentative of the Charging Party Union. At this meeting with Landreth, testified Biringer, "We discussed the layoff, what course of action we could take, and we decided that seeing how they were usually shut down the week before Christmas anyway, that we would take legal action if they wouldn't put Landreth back to work... . I discussed the 3 The General Counsel's representative acknowledged there was a "past PAN-ABODE, INC. 319 possibilities [with Landreth] of filing charges with the Na- tional Labor Relations Board and the [Washington State] Human Rights Commission for breach of contract suit." Biringer and Landreth met the next day on October 25 with William Sester who has been manager of Respondent's plant since 1962. Biringer told Sester that Landreth's layoff "was in violation of our seniority con- tract." Sester advised Biringer and Landreth that their grievance was a matter which they would have to discuss with Jensen, the owner of the plant. When Biringer re- quested a meeting with Jensen, Sester told him that Jensen was presently attempting to negotiate a sale of the plant which Biringer admitted that he knew. Sester also told Bir- inger that, in addition to Jensen being tied up in negotia- tions for the attempted sale of the Renton plant, he and Jensen were about to leave for Windsor, California, where Respondent had another plant and would be gone until approximately October 31. Sester assured Biringer that when he returned he would telephone Biringer. When Ses- ter returned from the California business trip on October 31, he telephoned Biringer and requested that he give him until November 6 to discuss the Landreth grievance with him because Jensen expected to know by that date whether the proposed buyer of the plant would agree to its pur- chase. On November 6, Biringer was advised that Jensen was not successful in his attempt to dispose of the plant. The following day, Biringer addressed a certified letter to Jen- sen requesting a meeting with him regarding "the griev- ances that I discussed with Mr. Sester . . . on October 25, 1974." This letter concluded by stating that if he did "not hear from [Jensen] by November 13, I will be forced to take whatever action that is necessary to bring a settlement of our grievances." Similar certified letters were sent by Biringer to Jensen on' November 15 and 27 and December 20,4 requesting a meeting with respect to "the laying off of Hugh Landreth and Wally Taylor in violation of the se- niority clause in our labor contract.- 5 Biringer admitted that Sester had requested him on No- vember 13 to reduce the Landreth grievance to writing in order that Jensen would be apprised of the basis for the grievance. Biringer acknowledged on his cross-examination that he was aware that both Jensen and Sester were in Windsor, California, from November 22 "for a period of time" due to an emergency which arose at the Windsor plant. Biringer conceded that during this same period of time he knew that the foreman of Respondent's Renton, Washington, plant, who had been with Respondent for 26 years, suddenly and without prior notice retired on Decem- ber 10, as did his wife a few weeks later, who had been the Renton plant's office manager for 22 years. Biringer also admitted that Jensen at no time told him that he would not meet with him to discuss "the issues that are 'the subject matter of this case." Moreover, it was elicited on Binnger's practice of laying people off [during] the annual layoff." a The Union filed its charge with the Board on December 13. 5 Taylor, an alleged discnmmatee in the complaint, was recalled to work on February 18, 1975, from his October 24 layoff and subsequently with- drew his grievance and name from the charge prior to December 13, 1974, when Landreth's and Taylor's charge was filed by the Union with the Board. See G.C Exh. 6 cross-examination that Sester had informed him of Jensen's other concurrent "problems" indicating that all these simultaneous involvements prevented Jensen from fixing a definite date for a meeting. Nevertheless, Biringer neither telephoned Jensen at the plant or home, nor had he made any efforts to go to the plant or to Jensen's home to discuss the Landreth grievance. It was also educed from Biringer that none of the four certified letters, which he mailed between November 6 and December 20 addressed to Jensen, were receipted by Jensen, but by his office per- sonnel. Biringer stated that his purpose in writing these letters was to make a record proving lack of cooperation on Jensen's part prior to him bringing legal action against Re- spondent. - Sester, plant manager for 13 years in Renton, Washing- ton, testified that the manager of the-Windsor, California, plant was not only incompetent but so neglected his duties that he, Sester, and Jensen had to go to the plant "a lot of times" over a period of 7 to 10 days in late October and early November. In addition due to illness, Jensen was confined to his home for 2 weeks in December and 3 weeks in January, all of which, according to Sester, accounted for Jensen being unable to meet with Biringer from the time the latter wrote his first certified letter to Jensen on No- vember 6 until December 13, when Biringer filed a charge with the Board in this matter. Furthermore, Sester testified that, because of all the critical exigencies which arose at almost the same time, none of the certified union letters which were sent to Jensen between November 6 and De- cember 20, requesting a meeting, were read by Jensen until after the unfair labor practice charge was filed on Decem- ber 13. It was Jensen's orders to his office staff, explained Sester, that no one was to open his mail except him. Sester testified that he believed that the Respondent was prohib- ited from meeting with the Union after December 13, as a matter of law when the Union filed its charge in this pro- ceeding. Lending credence to this belief is Sester's state- ment when examined by the General Counsel, that: "We can't have a meeting with the Union until we're over with this hearing." Landreth's Layoff When Biringer was asked if he requested Sester at any time to rescind Landreth's October 24 layoff by having him "bump" another employee, with less seniority, at whatever job classification was then available from a department of the plant other than the one in which Landreth worked, he answered in the affirmative. Biringer continued that at the time he made this request he was aware the plant was in the process of being shut down and that Landreth was a helper of Wooley, the carpenter foreman, who had more seniority than Landreth. When he was again asked whether he had requested Sester to transfer Landreth to another department in the plant to displace a man holding a differ- entjob who had less seniority than Landreth, he answered: "I believe I did." Asked to name the department, he said: "I don't recall.' Sester testified when called as a witness by the General Counsel that it has been Respondent's policy for at least 13 years never to transfer employees from one department to 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another in a reduction in force as all layoffs were effectuat- ed on a departmental basis, and not on a plantwide basis. Moreover, he continued, he was not aware when Landreth was laid off that he was qualified to operate the various machines in the other departments. Sester acknowledged that more than 3 years ago Landreth had acquired experi- ence in making purlins, a component part of the precut homes; however, the present operator of the purlin ma- chine also drove a six-wheel truck which required a special state driver's license that Landreth did not possess. Sester maintained that the operators of these machines must have special skill in that the component parts of these precut homes require a great degree of precision in order that the final product will fit together properly when the prefabri- cated home is assembled on the building site. Sester, while under examination by the General Counsel's representative, also testified that the plant shut down each year as they have a "busy season" and a "slow season." In the latter part of October 1974, he continued, their orders for precut homes had decreased to a much greater extent than in previous years because of a national business recession, necessitating employee layoffs of longer duration than previous years.6 Only one man was required in the sash and door department where Landreth worked as a helper to Carl Wooley, the carpenter foreman, who had been employed by the Company for approximately 26 years, compared to Landreth's 8 years. Consequently, the latter was laid off first on October 24 and Wooley was not laid off until the following December 3. When the plant reopened, Wooley returned to work on February 18, and Landreth was recalled the next day. Included in all the various collective-bargaining agree- ments executed between the Union and Respondent, com- mencing in 1961 to the present time, is a seniority provision which reads as follows: "The employer also recognizes the principle of seniority and that older employees are entitled to work in preference to newer employees, competency and ability considered." Sester testified supra, and it stands uncontradicted that the Company has never engaged in "bumping from one job classification to another job classification" between differ- ent departments and that the Union in collective-bargain- ing negotiations with Respondent never requested such a layoff procedure. He explained that in the context of qual- ity control it would be impossible "because there are too many key jobs that the men know what they are doing and other people haven't worked those jobs." Sester explained that plant policy with respect to their production employ- ees is to assign them to operate those machines and to perform that work for which they are best qualified from an experience standpoint. Sester also stated that based on this criteria, even had the plant operated on a. plantwide seniority basis, which is contrary to the finding made here- in, Landreth was not sufficiently qualified in October 1974 to bump an employee in another department of the plant who had less seniority than Landreth but who possessed the required experience and competency. The General Counsel's representative claimed that five 6 Sester testified that in his 13 years with Respondent, the plant's annual shutdown was usually 3 to; 6 weeks but never more than 8 weeks. employees who had been hired for temporary work for 3 weeks, beginning on November 20, to stack logs, should have been terminated and one of those jobs given to Lan- dreth. When Sester was asked by counsel whether Lan- dreth who was laid off on October 24, and is 63 years of age, was qualified to displace any of these temporary em- ployees who worked beginning November 20 to 26 until December 3, he stated that stacking logs is the heaviest and hardest job in the plant from the standpoint of the strength and stamina required and that it was a menial job demand- ing no skill. (see infra.) Moreover, no request was made to Sester by Biringer, on Landreth's behalf, for any specific job or to "bump" a less senior employee. Furthermore, this menial work was not available until the end of November. It will be recalled, supra, that Bi_rmger, the union business representative, stated that he "believed" he requested a specific job for Landreth after his October 25 layoff but when he was asked what department he had specified, he lamely answered: "I don't recall!" This is not credited, as it strains one's credulity to accept Binnger's unbelievable as- sertion that he does not recall such a critically important aspect of this proceeding. It is found that Biringer merely said to Sester that based on his seniority Landreth should be working without specifying any particular job to which he was entitled, when he spoke to Sester at the plant on October 25. The only job that Landreth was competent to perform as testified above by Sester was working on pur- lins, but the employee who was assigned to that job when the layoffs occurred on October 24 was also the driver of a six-wheel truck that required a special driver's license is- sued by the State of Washington which Landreth did not have. Nevertheless, the General Counsel insists that Respondent's laying off Landreth on October 24 constitut- ed an unfair,labor practice in that jobs were then available in other departments which Landreth was entitled to by seniority as well as being qualified. Based on the findings made herein and the proof adduced by him which fails to prove by a preponderance of the credible evidence his con- tention, it is recommended that the allegation with respect to Landreth's discriminatory layoff on October 24 be dis- missed. The Alleged Unilateral Wage Increases The amended complaint dated March 31, 1975, also al- leges that Respondent violated Section 8(a)(5) of the Act when it unilaterally granted wage increases to certain em- ployees on March 14, 1975, without giving prior notice to or bargaining with the Union. Also alleged as a violation of Section 8(a)(5) is Respondent's unilateral withdrawal of this same pay increase on March 20, 1975, the first day of the hearing, without giving prior notice to the Union, and which was allegedly motivated by Respondent's desire to discourage employees in their support of, and membership in, the Union and to undermine the Union. Moreover, al- leges the complaint, Respondent engaged in this conduct because the Union filed a charge against it and "because of the National Labor Relations Board having proceeded in the instant case." Furthermore, alleges the amended com- plaint, "Respondent refused to acknowledge or to be bound on and after October 24, 1974, by its contract with PAN-ABODE, INC. the Union all in violation of Section 8(a)(5) of the Act." According to the amended complaint, these acts were pur- sued "without first notifying the Federal Mediation and Conciliation Service of the existence of a dispute and with- out notifying the Washington State Department of Labor and Industries, Industrial Relations Division, Mediation and Conciliation, of the existence of such a dispute as re- quired by Section 8(a)(3) of the Act and without first com- plying with other requirements of Section 8(d) of the Act." In addition, these various acts detailed above, alleges the amended complaint, also violated Section 8(a)(4) of the Act which prohibits an employer "to discharge or other- wise discriminate against an employee because he has filed charges or given testimony under this Act." With respect to those allegations of the amended com- plaint which allege that Section 8(a)(5) was violated when Respondent granted wage increases to certain employees on March 7 and rescinded those same increases on March 20, Sester testified that Jensen "felt" certain of the employ- ees in various job classifications were entitled to wage in- creases and granted them on March 7, 1975, effective as of March 14, a week before the hearing in this matter com- menced. Sester, manager of Pan-Abode, Inc., testified that, while attending the hearing on the first day, he learned that it was wrong to have increased wages whereupon he re- scinded the pay increases the same day,-March 20, on ad- vice of his attorney. Sester admitted that neither Jensen nor he notified the union officials prior to granting these wage increases. He explained that in the past the Company had granted merit increases to its employees and the Union had never complained, citing an instance when Landreth him- self received a merit pay increase "several years ago." He continued that if an employee deserved a merit increase, apart from periodic pay increases provided for in the union contract, it has been their policy over the years to grant such discretionary merit pay increases. Sester stated that "when the men come in and say they'd like to have a raise, if they're good help, you naturally give it to them to keep them." He concluded this phase of his testimony by stating that the Union had never complained about these merit increases in the past and of the six employees who received such pay increases on March 14, 1975, two of them were union members and four were not. Landreth acknowledged that in the past he had received merit pay increases from Respondent, "other than across- the-board raises" given to all the employees. When he was asked if he had informed his union, the Charging Party, of these merit wage increases which he had received, he first evaded the question and then stated that he did not inform Biringer, the union business representative. He also testi- fied he was aware that pay raises had been given "volun- tarily" by the Respondent to other employees "outside of the negotiation of a new contract . . . on frequent occa- sions." When Sester was asked by the General Counsel's repre- sentative if he had ever notified the Union that he was going to withdraw the March 7 wage increases as of March 20, 1975, Sester answered: ". . . I didn't take back any of the raise out of their checks that they were given previous- ly. I did not take it out. I just went back to the old rate of pay [which existed as of March 7]." 321 Employees Allegedly Paid Less Than Contract Specified The complaint further alleges that five employees were paid $3.50 per hour "even though the collective-bargaining agreement . . . sets forth and defines the applicable wage rate to be $4.32 per hour . . . because [they] were not members of the Union." The above allegations apparently refer to the five manu- al laborers who were hired on various dates between No- vember 20 and 26 to work for 2 weeks on a temporary basis until December 6, when they were terminated. Their duties consisted of stacking logs in piles and cleaning up the plant yard after the regular employees were laid off and produc- tion had ceased completely at the plant on December 3. On occasions in the past, it was testified, "school boys" had been employed to clean up the yard and do other menial work for which they were paid $3.50 an hour. Threats Made to Landreth As mentioned above, Hugh Landreth has been em- ployed for the past 3 years as a helper to the carpenter foreman, Carl Wooley. He testified that since he was hired by the Respondent in 1966 "there were periods when the plant was shut down and [he] was on a layoff [status] ... . There is a time each year where the plant is shut down entirely." After returning to work on February 19, 1975, he claimed that on four different occasions he was threatened by Jensen, the owner of Pan-Abode, Inc. Landreth's story follows: About 8 a.m. when he reported for work on Feb- ruary 19, the first day he had worked since October 24, when he was laid off along with other production employ- ees, Jensen came over to his work station and "thumbed me down a few feet down the plant away from the rest of the men and he said, `You God damned son of a bitch.' Then he hesitated and then he said, `You God damned son of a bitching trouble maker.' . . '. He said this over and over on this occasion. He talked to me for about 10 min- utes. So he came back. . . . All right. He said, `You are a God damned son of a bitching trouble maker.' He said, `If you do not withdraw these charges that you have made against me,' he says, `Your job is just temporary here.' He said, `I have hired you back on a temporary basis,' but he says, `The union contract will' not be renewed.' He says, `You will be let go at that time.' ... He said that I was the only trouble maker in the plant and that when the time came that I would be the only one that would be willing to strike, that all of the rest of the crew was good men." Landreth testified that he had a second conversation with Jensen the next day at or about 8 a.m. when he report- ed for work. Landreth's version of what occurred follows: "Mr. Jensen said very politely that particular time, he said, `Get on the ball.' He said, `A 16-year-old kid can do more than you are doing.' That Was it, a passing remark, I guess." Landreth then testified as to a third time when Jensen told him "to get on the ball and work faster, to dip both long and short logs." He then related a fourth occasion when Jensen allegedly told him to "Dip those logs down closer, transfer them down closer to the tank so you don't 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to walk so far. He says, you are killing too much time." Discussion and Conclusions In the words of the General Counsel's brief, the issues in this proceeding are as follows: 1. Whether Respondent laid off Landreth, Monteith, Stevens, and Chester Demery while less senior employees were retained. 2. Whether Monteith, Stevens, and Demery were laid off because less senior employees were not members of the Union and, consequently, because the named employees were members of the Union. 3. Whether by those acts Respondent unilaterally re- fused to be bound by the seniority provisions of the collec- tive-bargaining agreement which was first executed be- tween it and the Union more than 20 years ago. 4. Whether Respondent refused to meet with the Union to discuss layoffs. Also that Respondent has refused to be bound by the grievance procedure of said contract? 5. Whether Respondent paid newly hired employees hired during November 1974 a wage rate less than that called for in the contract because those individuals were not members of the Union. 6. Whether Respondent threatened Landreth because of his union activities or other protected activities "and/or because of Landreth's having cooperated with and given testimony to the National Labor Relations Board. 7. Whether Respondent on March 7, 1975, increased employees wages without giving prior notice to the Union which has represented all its employees except clericals for more than 20 years.8 8. Whether Respondent withheld from Landreth the wage increases granted to other employees on March 7, 1975. 9. Whether Respondent granted such wage increases to other employees under the circumstances described above and withheld that increase from Landreth (a) "in order to discourage employees in their support of and membership in the Union and to undermine the Union, or (b) because of the Union's having filed the instant charge under the National Labor Relations Act and/or because of the Na- tional Labor Relations Board having proceeded in the in- stant case." 10. "Whether Respondent's acts, considered as a whole, constitute a refusal by Respondent to acknowledge or be bound by the collective-bargaining agreement between it and the Union." 11. "Whether Respondent's acts constitute a unilateral modification of the collective-bargaining agreement with- out first notifying the Federal Mediation and Conciliation Service of the existence of a dispute and without first com- plying with other requirements of Section 8(d) of the Act." The General Counsel did not explain his reasoning either at the hearing or in his brief as to how the 11 inci- dents, supra, constituted violations or what sections of the Act were thereby violated by these alleged acts. Moreover, the oddly self-contradictory and negating dichotomous contentions in the General Counsel's brief fail to shed any light with respect to adequately explaining or citing his au- thority for the general principles of law upon which his reasoning depends in arriving at his legal conclusions as well as the basis for his deductions upon which his conclu- sions are based. For instance, no proof was adduced with respect to his allegations in the complaint that Respondent's objective was "to discourage employees in their support of the Union . . . and to undermine the Union." This failure of proof is not only significant but part of his burden of proof in view of the cogent fact that the Union has never filed a grievance nor unfair labor practice charge against the Respondent in over 20 years. The Board and the courts have considered a respondent's union animus in cases where it has been found that the Respondent committed unfair labor practic- es. It would seem that evenhanded justice requires that where no substantial evidence is produced by the General Counsel to show such antiunion bias, as here, that this fac- tor should be considered in evaluating whether the Re- spondent, which has an unblemished record in this respect, has committed the numerous unfair labor practices alleged by the General Counsel. The evidence, therefore, "must do more than create a suspicion of the existence of the fact to be established." 9 The burden of proof is on the General Counsel to establish and sustain the allegations of his complaint by a prepon- derance of the probative and credible evidence. Therefore, when Respondent's explanation that the annual layoff re- sulted from the poor state of the national economy in the autumn of 1974, and a lack of orders for homes, and that its failure to meet with the Union between November 710 and December 13, when the Union filed its charge with the Board, was due to circumstances beyond its control, which explanation is uncontradicted, the burden of going forward with the evidence shifted to the General Counsel to estab- lish the falsity of the explanation and the truth of his own allegation." Section 7(d) of the Administrative Procedure Act (5 U.S.C. 556(d)) provides that the proponent of the order has the burden of proof. Then too, the question of burden of proof is inextricably interwoven with the resolu- tions of credibility, facts, and legal conclusions which have been made in this decision. The Supreme Court had held 12 before the enactment of the Taft-Hartley Act (Labor Management Relations Act of 1974 (67 Stat. 136)) that the evidence necessary to make a finding of an unfair labor practice must be "substantial." Substantial evidence is such evidence as affords a substan- tial basis of fact from which the fact in issue can be reason- ably inferred.13 Substantial evidence must be such relevant 7 This contention was not raised at the hearing by the General Counsel His theory is not explained in his brief nor does he make clear what testimo- ny he relies on to substantiate this allegation or what section of the Act he claims was violated. 8 The General Counsel stated at another point in the record that the parties' collective-bargaining relationship existed for as long as 25 years 9 Universal Camera Corp v N L R. B , 340 U S 474, 477 (1951) 10 Sester did meet with Landreth and his union representative on October 25 11 Martel! Mills Corporation v N L R B, 114 F 2d 624, 631 (C.A 4, 1940) 12 N L R B v Consolidated Edison Company of New York, Inc, 305 U S 197, 229 (1938) PAN-ABODE, INC. evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence must have ra- tional probative force; it must carry conviction; it must be more than a scintilla, and must do more than create a sus- picion of the existence of the fact to be established. And the test is not satisfied by evidence which gives equal sup- port to inconsistent inferences.14 Such a probability is not an academic proposition as evidenced by the frequency with which juries in courts of law are unable to arrive at a verdict. Section 10(c) of the Wagner Act simply provided that: "The findings of the Board as to the facts, if supported by evidence, shall be conclusive." The Supreme Court early interpreted this to mean "supported by substantial evi- dence."15 The Taft Hartley amendments made explicit the substantial evidence requirements and added the phrase "on the record considered as a whole."" The Supreme Court held in Universal Camera that the amendment was not intended to displace the substantial evidence standard with a looser test, e.g., permitting the reviewing court to set aside the Board's finding if it deemed them "clearly errone- ous"; it was intended to make plain that, in determining whether the evidence was substantial, the reviewing court should look at the whole record.17 The burden is upon the General Counsel to prove affir- matively and by substantial evidence that the acts alleged in the complaint were illegally motivated. As the Board has held, "In every case, a violation of the Act must be proved by the General Counsel by the preponderance of the evi- dence."18 Moreover, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is what is meant by consideration being given to the whole record.19 For the reasons hereinaf- ter explicated it is found that counsel for the General Counsel has failed to carry his requisite burden of proof by a preponderance of the substantial evidence. The Alleged Coercion and Threats of Landreth As detailed above, Jensen cursed Landreth on two occa- sions and also reprimanded and instructed him in how to perform his duties correctly. The General Counsel alleges "that Jensen's statements to Landreth constitute an inde- pendent violation of Section 8(a)(1) of the Act." Moreover, states General Counsel, "Jensen's castigation of Landreth are independent threats." In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or mo- 13 N.L R.B v. Columbian Enameling & Stamping Co, 306 U.S 292, 299 (1938) 14 Eastern Coal Corporation v. N.L.R.B., 176 F.2d 121, 131, 135, 136 (C.A. 4, 1949). See Appalachian Electric Power Co v N L R B., 93 F.2d 985, 989 (C.A 4, 1938) 15 Washington, Virginia & Maryland Coach Co. v. N.L.R.B. 301 U.S 142, 323 tive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guar- anteed by the Act 2° Then too, on the issue of whether Section 8(a)(1) has been violated, consideration must be given to Respondent's entire course of conduct, as it is not required that each item of Respondent's actions be consid- ered separately and apart from all others, but consider- ation must be given to all such conduct as a whole with a view to drawing inferences reasonably justified by their cu- mulative probative effect. Accepting Landreth's uncontroverted version of these four incidents in which the General Counsel alleges Jensen restrained, interfered with, or coerced Landreth within the meaning of Section 8(a)(1) of the Act, nevertheless, a dis- tinction must be made between the two cursing incidents and Jensen reprimanding Landreth for -derelictions of duty. These threatening statements, alleges the complaint, were made "in order to discourage employees in their sup- port of and membership in the Union and to undermine the Union." Landreth's testimony stands uncontradicted. Neverthe- less, his demeanor left much to be desired. He was a ver- bose and self-dramatizing witness, given to exaggeration in retelling a strongly flavored story. Moreover, many of his answers were voiced in response to leading and suggestive questions propounded by the General Counsel which also militates against the weight to be given his testimony. Fur- thermore, as the vice in counsel asking his own witness leading questions is that they suggest the desired answers which the witness will often merely adopt, it is futile to object once such a question has been asked and the desired answer suggested. Little probative value has been given to the testimony thus elicited particularly in view of the co- gent fact that counsel persisted in asking leading and sug- gestive questions although requested to desist from doing so. The language used by Jensen when he cursed Landreth and the context in which it was uttered did violate Section 8(a)(1) of the Act. However, when Jensen reprimanded Landreth on two occasions for not performing his assigned duties correctly, this was not a violation of the Act. As owner of Pan-Abode, it was incumbent and necessary that Jensen periodically see how things were going in the vari- ous production departments. In order to find an 8(a)(1) violation with respect to Landreth, it would be necessary, under the circumstances here revealed, to hold that Jensen's periodic inspections of the plant to determine if it was functioning properly and efficiently is not a manage- ment prerogative but rather was intended to harass Lan- dreth. Fundamental economic concepts would decry such a concept as administrative arrogance. "Management is for management."21 Such matters are a management preroga- tive. In order to lend plausibility to the General Counsel's contention that Jensen's reprimanding of Landreth for the manner in which he was performing his duties is a violation 147 (1937) 16 Universal Camera Corp. v. N L.R.B., 340 U S. at 474, 485-488, (1951) 20 Time-O-Matic, Inc v N L R. B., 264 F 2d 96, 99 (C A 7, 1959); See N.L.R.B. v. Stafford Operating Company, 206 F.2d 19, 22, 23 (C.A 8, N L R B v Illinois Tool Works, 153 F.2d 811, 814 (C.A 7, 1946 ); Russell- 1953) Newman Mfg. Co Inc, 153 NLRB 1312 1315 (1965) 17 See Martell Mills Corp. v. N.L.R B, 114 F.2d 532 (C.A. 4, 1940). , 21 N L.R.B v McGahey, 233 F.2d 406,412-413 (C.A. 5 1956) N L R B v. 18 Falstaff Brewing Corporation, 128 NLRB 294, 295, fn 2 (1960) , Ace Comb Company and Ace Bowling Company Division of Amerace Corpora- 19 Universal Camera Corp. v. N.L R B., 340 U S. 474 (1951). , tion, 342 F.2d 841 (C.A. 8, 1965) 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8(a)(1), in view of the fact that Landreth was not discharged, it would be necessary to hold that an employer in an effort to operate his business efficiently could not reprimand his employees for derelictions in the manner in which he performed his work without being accused of har- assment and thus assuming the risk of being found guilty of an unfair labor practice. The Act does not circumscribe an employer's right to discipline an employee for reasons not forbidden by the Act. The employer can do all these things at will, so long as his action is not based on union considerations or intent to interfere with the purposes of the Act and where must ground for disciplining appears, it is ordinarily a mere matter of speculation to infer that rep- rimanding the employee was because he was a union mem- ber. To hold otherwise, with respect to Jensen correcting Landreth in the performance of his duties, would be tanta- mount to the trier of these facts placing himself in the posi- tion of substituting his own ideas' of business management for those of the Respondent Company. This is a manage- ment prerogative and necessary in order to maintain pro- duction, efficiency, and discipline. Where a proper colla- teral motive can be as reasonably inferred as an unlawful one, which in this case was Jensen instructing Landreth in performing his work, this act of Jensen cannot be held to be improperly motivated.22 It would seem, however, that, in evaluating whether an unfair labor practice has been committed, the legality of the employer's actions involves the problem of accomodating the rights of employees un- der Section 7 vis-a-vis the prerogatives of management to conduct and protect its business enterprise. Accordingly, Jensen, in reprimanding Landreth for the manner in which he discharged his duties, was not guilty of a violation of Section 8(a)(1) of the Act. However, Jensen's threatening Landreth, which had no relevancy to reprimanding him for not performing his duties correctly, was a violation of Sec- tion 8(a)(1). The Layoffs As delineated above, Landreth was temporarily laid off on October 24 because of a production slowdown resulting from economic considerations and subsequently recalled to work with the rest of the plant employees on February 19, 1975. The other production employees were laid off on various dates between October and December 3 and, on December 19, the two shipping department employees were furloughed. All the laid-off employees were recalled on February 18 and 19, 1975. As stated above, Respondent shuts down production every year because of the seasonal nature of its business. The shutdown in 1974 and 1975 was longer than in previous years because of the concomitant of a sharp reduction in the housing industry occasioned'by economic distress in the nation and the high interest rates on home mortgages. ' The General Counsel argues that seniority should be plantwide, but states no reasons for this ultimate conclu- sion. 22 N L R B. v. Huber & Huber Motor Express Inc, 223 F 2d 748, 749 (C.A, 1955); NLRB v The Houston Chronicle Publishing Company, 211 F.2d 848, 854-855 (1954) Employees have no statutory or constitutional right to seniority. Such right exists solely by reason of contract 23 There is no natural, common law, or constitutional right to seniority?" In the instant case, the seniority clause has been in all the collective-bargaining agreements at least since 1961. The Respondent contends that past practice and the construction the parties have given the seniority provision in their collective-bargaining agreement over the years con- clusively reveals that layoffs in the past were effectuated on a departmental basis and not' plantwide. The provision in question reads as follows: "The Employer also recognizes the principle of seniority and that older employees are enti- tled to work in preference to newer employees, competency and ability considered." Seniority is a preference in employment based on length of service. By its very nature, seniority is a relative matter. This preference is not absolute, but is limited by many factors which determine the value of'seniority to different classifications of workers. When the working force is cur- tailed, frequently the employer is confronted with the prob- lem of layoffs. It is reasonable for employers to desire that their most highly trained employees be retained as their expertise and consequent experienced input into the pro- duction cycle is of considerable value to management. ?.5. It is evident therefore that layoffs on a separate departmental basis rather than on a plantwide classification basis favors such a policy.26 Sester testified that the seniority provision as interpreted above was applied on a departmental basis with respect to Landreth's October 24 layoff. Moreover, Sester's testimony stands uncontradicted that the Respondent in a reduction-in-force-situation has never engaged in "bumping from one job classification to anoth- er job classification." Nor was this subject, stated Sester, ever mentioned during the course of negotiations with the Union which eventuated in the execution of the current contract which Sester signed on behalf of Respondent. Furthermore, continued Sester, if the reduction in force was effectuated on a plantwide basis, it would adversely affect the "quality control" which is so necessary in manu- facturing precut homes because laying off employees other than on a departmental basis would result in losing em- ployees having specific expertise who occupied "key jobs." These experienced workers in the various departments, he said, "know what they are doing" whereas a man from another department with no experience and who had nei- ther the "competency" nor ability to operate unfamiliar machines would not. In the event such an experienced worker were to displace the incumbent operator, stated Sester, this would result in an inferior precut house being 23 Starke v N Y, Chicago & St Louis R R, 180 F .2d 569 (C.A 7). 24 See Tradmobile Co v Whirls, 331 U S 40; Fagan v Penn R.R, 173 F 2d Supp. 465. 25 When Sester was asked about the policy of retaining an employee who had the greatest departmental seniority , he testified : "You couldn't lay off a senior man He has been there too long and he knows too much about it" That, he continued, is the reason for "respecting" departmental seniority and in a reduction in force of laying off the employee in the department with the least seniority which to him is evaluated in terms of years of experi- ence in performing an assigned task. 26 See Ford Motor Co v Huffman, 345 U S. 330. Aeronautical Lodge v. Campbell, 337 U S. 521. PAN-ABODE, INC. 325 produced. It should be borne in mind that when Biringer, the union official, claimed on October 25 that Landreth was laid off contrary to the seniority provision he did not specify to Sester what job in the plant Landreth was entitled to hold. All Biringer stated, Sester credibly related, was "according to [Landreth's] seniority, he should be working." More- over, it should be emphasized that even though, arguendo, Landreth had the right to bump between job classifications or departments, nevertheless, he must have "competency and ability" in the words of the contract's seniority provi- sion to perform the job being performed by the worker whose job he seeks. On the state of the record here, it is not possible to determine this as neither Landreth nor the Union specified the job or the less-senior individual whom he sought to replace. Past practices of the parties are controlling in interpret- ing the ^ seniority provisions of the collective-bargaining agreement in issue here. "Where past practice has estab- lished a meaning for language that is used by the parties [in their agreement], the language will be presumed to have the meaning given it by past practice. The contract must be construed to give effect to the intent of the parties when it was made and the circumstances existing at the time it was made should be looked to, to ascertain the intent:127 As discussed, supra, such past practice shows that, in the case at bar, layoffs were effectuated on a departmental basis and employee seniority was determined on a departmental rather than plantwide basis. Accordingly, employees of one department could not bump employees for job preference in another department with the consequence that, in trans- ferring from one department to another in either direction, an employee does not carry his seniority to his transferred status on a plantwide basis. Therefore, Landreth's seniority rights were limited in a reduction-in-force to the two-men carpentry department of which sash and door was a constituent part. The other man, Wooley, had 26 years' seniority to 8 years for Lan- dreth. Seniority clauses in collective-bargaining agree- ments, moreover, must expressly specify that bumping be- tween departments or job classifications is permitted.2S It is found therefore that there is not a preponderance of sub- stantial evidence on the record as a whole to sustain the General Counsel's contention that Landreth's layoff was a violation of Section 8(a)(3) of the Act. The Wage Increases and Subsequent Rescission The ' General Counsel's complaint dated January 31, 1975, was amended the first day of the hearing to allege that Respondent unilaterally granted on March 7, 1975, a wage increase to some of its employees and 2 weeks later it rescinded these wage increases, without on either occasion giving prior notice to or bargaining first with the Union. Sester testified that merit increases were given to approxi- mately eight of the employees. It is uncontraverted that merit increases had been granted in prior years without first bargaining with the Union with respect to these pay raises. Several years before, Landreth himself had received such an increase apart from the periodic wage increases he had received as provided for in the union contract. Over the years, neither the Union nor the employees had object- ed to these discretionary pay increases. The merit raises were given whenever the quality of work of specific em- ployees justified additional compensation but these were not plantwide periodic increases granted to all employees. See above. None of these wage increases in the instant case were granted in the context of a union organizational campaign which is the usual situation in which these infractions of the Act arise. Nor was any evidence produced by the Gen- eral Counsel that either the granting or the subsequent withdrawal of these merit increases was reasonably calcu- lated to invidiously interfere with the relationship of its employees with their Union. Moreover, the record is de- void that such action tended to interfere with the free exer- cise of the employees' rights under the Act. After an exem- plary bargaining relationship of 20 years with the Union, any finding that the Respondent could not _ continue to make normal business decisions (such as discretionary merit pay increases), in keeping with its established compa- ny policy of many years, without first notifiying the Union, clearly is contrary not only to the realities of industrial life but to the actualities of industrial relations and the law, especially in view of the cogent fact that discretionary mer- it pay increases had been granted in past years without any objection by the Union. Conduct such as granting discre- tionary merit pay increases which serves legitimate busi- ness ends dispels a claim of illegitimate motives. The same rationale applies to the rescission of these increases on March 20, 1975, the first day of the hearing when Sester immediately withdrew them upon advice of his attorney. The record is clear that Sester had no intent to knowing- ly invade these employees' statutory rights but merely to accomplish business objectives otherwise acceptable under the Act. It would appear therefore that this isolated de min- imus incident of obviously limited impact and significance which does not attain the stature of an unfair labor prac- tice should not be considered a violation of the Act. The evidence does not warrant an inference that these incidents were casually connected or motivated for the purpose-of invidiously influencing the employees in a proscribed man- ner. It is recommended that this allegation of the com- plaint be dismissed as the circumstances under which it occurred neither constitutes a substantial basis for an un- fair labor practice nor warrants the issuance of a cease- and-desist order inasmuch as the increases were rescinded so that the matter is now moot. Temporary Employees Allegedly Paid Less Than Union Scale Paragraph 8(a) of the amended complaint alleges that five men who were hired between November 20 and 26, for a period of less than 2 weeks to perform menial labor con- 27 Pekar v. Local 181, Brewery Workers, 311 F.2d 628, 636 (C A 6), cert sisting of stacking togs and cleaning up the plant premises, denied 373 U S. 912 were paid $3.50 an hour even though the collective-bar- 28 Norwalk Co., 3 Labor Arbitration Reports 535 at 538 gaining agreement establishes a wage rate of $4.32 per 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hour. It is not clear in reading the allegations in the com- plaint, as amended, which sections of the Act the General Counsel's representative claims were violated , due to catch- all paragraphs in later sections of the complaint which do not specify which paragraphs are being referred to as well as which section of the Act is alleged to have been violated. It would appear for the reasons hereinafter explicated that the General Counsel's representative is in error in re- ferring to these five temporary manual laborers as "unit employees." Included in the parties' collective-bargaining agreement is a union-security provision requiring all newly hired employees to become members of the Union by the 31st day of their employment. Inasmuch as the temporary work they performed for only 14 days was menial and not the skilled production work of the unit employees, and since they were not employed the required 31 days called for in the union-security clause, it follows they were neither unit employees nor eligible for the union wage scale pro- vided for in the collective-bargaining agreement. Thus, Re- spondent was not required to pay the union pay scale to these five temporary laborers. Moreover, in the past, this, type of work was performed by temporary employees at the rate of $3.50 per hour. It is recommended, therefore, that this allegation of the complaint be dismissed. The December 3 Layoffs Paragraph 9 of the complaint which was amended at the hearing alleges that on December 3, 1974, Respondent laid off employees Monteith, Stevens, and Demery who had greater seniority than other unit employees because they were members of the Union, and that "Respondent has failed and refused to recall or reinstate said employees." These three laid-off employees were recalled to work on February 19, 1975, along with the other production unit employees. It is uncontradicted that all production at the plant ceased on December 3 and that all temporary em- ployees were terminated by December 6. The two men em- ployed in the shipping department were the last employees laid off. They had sent all completed orders to the purchas- ers by December 19 and were then laid off on that date. Moreover, the three unit production employees named above, who were laid off on December 3, at no,time there- after requested that they displace the temporary laborers who were stacking logs and cleaning up the' premises on December 3 and who continued to work until December 6, when they were discharged. Just as there has been a failure of proof with respect to Landreth's layoff, and for the same reasons enunciated above, which are likewise applicable to.alleged discrimina- tees Monteith, Stevens, and Demery who were laid off on December 3, by Respondent, it is recommended that this allegation of the complaint also be dismissed . Moreover, none of these three employees (all of whom were recalled on February 19, 1975), asserted any such right to displace an incumbent assigned to another job classification in a different department. The uncontradicted testimony with respect to Monteith, Stevens, and Demery is found, there- fore, not to attain the stature of an unfair labor practice so as to warrant the issuance of a cease-and-desist order. Ac- complaint be dismissed. Alleged Violation of Section 8(a)(4) Paragraph 10 of the complaint alleges that on February 19 and 20, and on one occasion between February 25 and March 1 , 1975, Respondent President Jensen "threatened, intimidated and coerced" Landreth because of his union activities and "because Landreth's had cooperated with and given testimony to the National Labor Relations Board." By such acts, states paragraph 16, Respondent "engaged in unfair labor practices . . . within the meaning of Section 8(a)(4) . . . of the Act. There is not a scintilla of evidence to substantiate this allegation. Moreover, Section 8 (a)(4) makes it an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the Act." The General Counsel's representative has not elicited any testimony that Landreth "was threatened, intimidated and coerced" by Respondent because he had "cooperated with and given testimony" to the Board. Furthermore, no evidence was adduced showing that Landreth was not completely free from coercion or threats when he gave an affidavit to the Board investigator or testified at the hearing. See Nash v. Florida Industrial Commission, 389 U.S. 235, 238 ; Ogle Pro- tective Service, 149 NLRB 545, 566. Accordingly, it is rec- ommended , that the 8(a)(4) allegation of the complaint be dismissed. The Alleged Violation of Section 8(a)(5) The complaint avers that since October 25, 1974, Re- spondent "failed and refused to meet and confer for the purpose of discussing the layoff of Landreth." Section 8(a)(5) provides that: "It shall be an unfair labor practice to refuse to bargain collectively with the representatives of his employees ...." The facts set out above in extenso belie this allegation. The plant manager, Sester, met with Biringer, the union official, on October 25, with respect to the layoff of Lan- dreth which had occurred the day before. The matter was also discussed by them on November 1, 1974. Again, on November 6, Biringer telephoned Sester and notified him that he "would have to take legal actions then in order to bring it to a head." The testimony reveals that up to this point the company officials never refused to meet with the Union. The record is clear that after Landreth's layoff Jen- sen was negotiating for the sale of the plant and also was ill in December and January and that also he had lost key personnel at both the Windsor and Renton plants which compelled his and Sester's repeated presence at Windsor during October and November . The Union was aware of all this during the time in issue here. Moreover , the letters sent by Biringer to Jensen have not been shown by the General Counsel to have been read by Jensen before the Union filed its charge on December 13. The credible evi- dence is to the contrary 29 cordingly, it is recommended that this allegation of the Markets, Inc, a Missouri Corporation v N L R B, 416 F 2d 601 , 606 (C.A. 7, 29 See Quick Shop Markets, Inc., an Illinois Corporation and Quick Shop PAN-ABODE, INC. 327 Under the facts here, it would not be reasonable to hold that the Respondent's conduct between October 25 and December 13, detailed above, constitutes substantial evi- dence upon which to base a finding of a refusal to bargain. The premature and hasty action on the part of the Union in filing a charge against the Company nullified any possi- bility of good-faith bargaining by the parties thereafter, as hereinafter explained. The employer here was entitled to a reasonable time, varying according to the circumstances of the case, in-which to consider not only Landreth's griev- ance but also to study and determine its merit or lack thereof in the context of preparing to discuss Landreth's layoff with the Union,30 The length of time accorded Re- spondent was not a sufficiently reasonable length of time under the circumstances here revealed to determine the va- lidity of Landreth's claim that he should not have been laid off. When the Union filed a charge on December 13, in the face of the arbitration provision cited in footnote 30, above, and at a time when Jensen was experiencing numer- ous difficulties, both personal and business, of which the Union was aware, as well as the cogent fact that there is no evidence that Respondent's request for a short delay was a pretext to evade collective bargaining, and in the absence of any reasonable opportunity to negotiate, it would seem there was no refusal to bargain within the meaning of Sec- tion 8(a)(5). To hold there was such a refusal would be inherently inequitable in that it would penalize the Re- spondent for conduct induced by the Union's precipitate action in filing a charge with the Regional Director. More- over, there is an implied understanding that neither party to collective-bargaining negotiations will affirmatively pre- vent performance by the other and thus prevent effective negotiations 3i Moreover, Respondent was not accorded sufficient time in the context of the unforeseen and dis- quieting circumstances which then confronted Respon- dent. Based on these extenuating facts, it follows that there could be no refusal to bargain as of December 13.32 The filing of an unfair labor practice charge at that time in the circumstances presented here does not appear to foster the good-faith indicia defined in Section 8(d) of the Act. It would seem that the bona fides of the Respondent could best have been tested at that juncture by further affirma- 1969), holding that an unopened registered letter did not constitute a clear, unequivocal demand to bargain. Cf. Filler Products Inc v N L R B, 376 F 2d 369 (C.A. 4, 1967), Scott Gross Company Inc, 197 NLRB 420 (1972). 30 The collective-bargaining agreement provides that "all disputes or grievances that cannot be speedily adjusted or settled or the job shall be referred to the accredited parties-of this Agreement for settlement" G.C Exh. 2, p 3 31 See Mastro Plastics Corp, at al v N L R B, 359 U S. 270, 279-281 (1956). 32 See N L.R.B. v The Jackson Press Inc., 201 F 2d 541, 544-545 (C A 7, 1953); Texarkana Bus Company Inc v, N L.R B, 119 F.2d 480, 484 (C A 8, 1941), The Bailey Grocery Company, 100 NLRB 576 (1952) tive steps on the part of the Union or perhaps according consideration to Respondent's request for a short delay be- cause of the dilemma he was then undergoing, before the Union filed its charge. It is concluded, therefore, that the evidence presented by the General Counsel falls short of establishing such bad faith on the part of the Respondent in its dealings with the Union as constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act 33 Nor am I persuaded that the evidence is substantial enough, in view of Respondent's exemplary record of 20 years in dealings with the Union, as well as its overall con- duct in the instant case, that would justify a finding that Respondent refused the Union's request to bargain3 The obligation to bargain collectively encompasses a correlative and affirmative duty of equitable dealing. Col- lective bargaining is stifled at the source if the party upon whom the demand is being made is not accorded a reason- able opportunity to determine the validity of the claim being made upon him. Assuming arguendo, that Landreth's grievance might have had merit, which is contrary to the finding made herein, when the charge was hastily filed, it follows there could be no refusal to bargain if there was no obligation to bargain at that time.35 Moreover, the record fails to disclose that Respondent refused the Union's request to discuss Landreth's layoff. The date of filing of the charge on December 13 does not appear to foster the good-faith indicia defined in Section 8(d) of the Act. Furthermore, the facts here present an a fortiori situation in that Landreth was recalled to work from his layoff at the same time that all the other fur- loughed employees were recalled. In view of the precipitate manner in which the charge was filed, less than a month after Sester and Biringer last disucssed the matter, and the posture in which the matter was left at that time, it is found there was no refusal to bargain. It is recommended, there- fore, that the 8(a)(5) allegation of the complaint be dis- missed. CONCLUSIONS OF LAw 1. By threatening an employee, Respondent has inter- fered with, restrained, and coerced the employee in the exercise of his rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. Respondent did not violate the statute by any other conduct alleged in the complaint, as amended, except as found above. [Recommended Order omitted from publication.] 33 See Green Colonial Furnace Company, 52 NLRB 161, 163 (1943), Ameri- can Rubber Products Corporation v N.L R B, 214 F 2d 47, 54 (C A. 7, 1954) 34 See Louis Natt d/b/a Mrs. Natt's Bakery, 44 NLRB 1099 (1942) 35 See N L.R B v The Jackson Press Inc, 201 F.2d 541, 544-545 (C.A. 7, 1953); Texarkana Bus Company Inc v N L.R B, 119 F 2d 480, 484 (C A 8, 1941); The C L Bailey Grocery Company, 100 NLRB 576 1952