Frost-Whited Co., Inc.

National Labor Relations Board - Board DecisionsSep 9, 1963

144 N.L.R.B. 433 (N.L.R.B. 1963)

AMERICAN COMPRESS WAREHOUSE, ETC. 433 American Compress Warehouse, Division of Frost -Whited Com- pany, Inc. and United Packinghouse , Food and Allied Work- ers, AFL-CIO. Cases Nos. 15-CA-2168 and 15-CA-2183. Sep- tember 9, 1963 DECISION AND ORDER On May 2, 1963, Trial Examiner Reeves R. Hilton issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. He also found that the Respondent had not engaged in other unfair labor practices and recommended dismissal of the com- plaint as to them. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Fanning.] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 1 We agree with the Trial Examiner that the Respondent violated Section 8(a) (5) by insisting to an impasse upon the inclusion of a performance bond in its proposed contract with the Union , since such a bond is a nonmandatory subject of bargaining . We also agree with the Trial Examiner ' s conclusion that the Respondent violated Section 8(a) (5) by insisting on a no-strike no-lockout clause and a nonobservance of picket line clause, which were included as part of a single package containing also the performance bond provision and provisions imposing responsibility upon the Union for unauthorized strike or picket line observance activities of employees . Cf. Floyd A . Fry Roofing Co, 123 NLRB 647, 649. Because of the other conditions with which they were entwined, we do not, as applied to this case, adopt the Trial Examiner's assertion that "the no -strike no-lockout and nonobservance of picket line [were] mandatory subjects of bargaining." INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by United Packinghouse , Food and Allied Workers, AFL-CIO, herein called the Union , the General Counsel of the National Labor Relations Board , through the Regional Director for the Fifteenth Region, issued a consolidated complaint dated December 7, 1962, against American Compress Ware- house, Division of Frost-Whited Company, Inc., herein called the Respondent or 144 NLRB No. 43. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company, alleging violations of Section 8(a) (1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. The answer of the Respondent admits certain allegations of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton at Shreveport, Louisiana, on February 11 and 12, 1963. All parties were present and represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. About April 8, I received briefs from counsel for the General Counsel and the Respondent. Upon consideration of the entire record, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE COMPANY'S BUSINESS The Company, a Louisiana corporation, has its principal office in Shreveport, Louisiana, and maintains places of business in Shreveport, Natchitoches, Alexandria, and Opelousas, all in Louisiana, where it is engaged in the warehousing and com- pressing of cotton. During the 12-month period ending November 30, 1962, the Company received more than $50,000 for services rendered in connection with the warehousing and processing of cotton shipped to it from points outside the State of Louisiana and foreign countries. In the same period the Company received more than $50,000 for services performed for various employers outside the State of Louisiana and/or employers engaged in shipment of goods valued at more than $50,000 annually in interstate and foreign commerce. The Company admits the facts concerning its operations but denies they are sufficient to warrant the legal conclusion that it is engaged in commerce within the meaning of the Act. In a previous case involving the same parties, American Compress Warehouse, etc., 137 NLRB 980, the Board asserted jurisdiction, so I find the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The complaint alleges that the Company discriminatorily refused to reemploy three seasonal employees during September and October 1962, and on various dates on and after April 30, 1962, refused to bargain in good faith with the Union by demanding that the Union agree to provisions providing for a performance bond, nonobservance of picket lines, and a no-strike no-lockout clause as a condition precedent to a collective-bargaining agreement. The answer generally denies these allegations and affirmatively, as amended at the hearing, asserts the demand for the foregoing provisions was not violative of the Act. B. The bargaining unit, the Union's certification About April 30, 1962, the Board, following an election conducted on November 16 and 17, 1961, certified the Union as the exclusive bargaining representative for all employees in a unit comprising: All production and maintenance employees, laborers, and seasonal and casual employees at the Employer's four compresses in Louisiana, namely, Shreveport, Natchitoches, Alexandria, and Opelousas, excluding all other employees, in- cluding office employees, clerical employees, supervisors, foremen, guards, and watchmen, as defined in the Act. I find the unit to be appropriate for the purposes of collective bargaining and that at all times material herein the Union was and is the exclusive bargaining repre- sentative of all the employees in the unit.' The answer admits the appropriateness of the unit but challenges the validity of the certification for the reasons asserted In the representation cases leading to the certifica- tion. The Company offered no evidence on this point and makes no mention of the matter in its brief. AMERICAN COMPRESS WAREHOUSE, ETC. 435 C. The refusal to bargain At all times material herein: J. K. Boone was vice president of Frost-Whited and general manager of American Compress, R. E. Dupuy and Eddie Stahl held the positions of plant superintendent and foreman, respectively, at the Shreveport plant, and Edward D. Shankhn and Alvin A. Vicknair held the positions of field repre- sentatives for the International Union. In the period June 4 to October 10, 1962, the parties held six bargaining meetings with Vicknair and Shanklin, plus two employees, representing the Union and Boone and Dupuy appearing on behalf of the Company. Many of the events occurring at these meetings are undisputed. At the June 4 meeting the Union presented the Company with a brief 1-page summary of its demands containing some 27 items. Boone complained the summary was too vague and that the Union should submit a complete contract proposal. The Union agreed to do so and the meeting then ended. About June 7, the Union mailed a proposed contract to the Company and a meeting was held on June 13. Boone said the meeting was a brief one for he requested time to prepare a counterproposal, which was satisfactory to the Union, and that he mailed the Company's proposed contract to the Union on June 18. The next meeting was held on June 27-28. Shanklin believed the Company's proposed contract was dis- cussed at the June 13 meeting, without any agreement being reached, but he was certain the proposal was the subject of discussion at the June 27-28 meeting. Both Shanklin and Boone testified they discussed each provision in the Company's proposed contract at the June 27-28 meeting, and while some of the provisions pre- sented no serious problem or were tentatively agreed upon,2 the parties were unable to reach accord on many substantive provisions such as wages, overtime, performance bond, nonobservance of picket lines, and no-strike no-lockout clause. The Com- pany's proposal maintained the present wage rate and wage practices and contained no provision with respect to overtime. Shanklin stated the Union wanted its own proposal on these provisions, which provided for a 10-cent-an-hour increase and, overtime, generally, at one and one-half times the hourly rate. According to Shank- lin, the Company offered a 2-cent wage increase at this, or some other, meeting. Boone considered wages and overtime as the "same thing" and related he offered. a 2-cent increase, which was, obviously, rejected by the Union. Apparently, some- time later the Union indicated its willingness to accept 8 cents if the Company would agree to a union-security or checkoff clause. The three provisions upon which the refusal to bargain is bottomed are as follows: (General Counsel's Exhibit No. 6) Both the Company and the Union agree to obtain and deliver to each other a performance bond written by a corporate surety company, payable to the other party in a penalty amount of ---------- dollars in order to insure and guarantee the faithful performance of this contract by both parties. The Union agrees that the employees of the Company will cross any picket line put up around or near any of the Company's plants by any other union and will work in a normal way; the Union further agrees that the employees of the Company will not refuse to handle or work on any goods which may be claimed as unfair or hot by any union, including the union which is a party to this contract. The Union agrees to be responsible for the actions of the Company's employees, regardless of whether such actions are authorized by the Union. The failure of the Company's employees to abide by the provisions of this article shall constitute a violation by the Union of this contract. There shall be no strike, slow-down, work stoppage, interruption of work or any other activity on the part of the employees which causes a reduction in the normal amount of work or business of the Company. The Union shall be responsible for any such activities on the part of the employees, regardless of whether the Union has authorized the employees to engage in any such activities; it being intended that any such activities on the part of employees shall con- stitute a violation by the Union of this contract. There shall be no lock-out by the Company or any other activity on the part of the Company which produces the effect of a lock-out. The Company shall be responsible for any such activity on the part of any of its management or supervisory personnel, regardless of whether the Company has authorized such personnel to engage in such activities. Any such activities on the part of These clauses included recognition, management rights, nondiscrimination, reporting pay, working conditions, and use of bulletin boards. 727-083-64-vol. 144-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management personnel or supervisory personnel shall constitute a violation by the Company of this contract. Shanklin testified the Union made it clear the performance bond clause was not acceptable and Boone took the position the provision had to be included in any contract, indicating the Union was irresponsible, in order to assure the Union's compliance with the terms of the contract. Boone stated the Company was merely asking for some type of protection in the contract as they knew nothing of the union people, and it was not uncommon for the Company, in order to protect its invest- ment, to require an unknown contractor performing repair work for it to post a bond. Shanklin said the Union was opposed to the no-strike no-lockout clause which the Company stated had to be in any agreement. In the discussion that followed Boone asked the Union's position regarding the clause if it applied only to members of the Union and Shanklin questioned the legality of eliminating nonmembers since the Union was the exclusive representative of all employees in the unit. In short, Boone asserted the Company could not afford to have its business shut down by a strike called by a few irresponsible employees and Shanklin replied the Union was a responsible organization which honored its agreements and had no history of ir- responsible or wildcat strikes. Boone testified he told the Union the Company had the right to request this provision. As an additional reason, he pointed out that while the Union may not actually tell the employees to strike, it could, by devious methods, cause the employees to engage in a work slowdown or fail to report for work. The Union declined to accept this clause because it could not be responsible for all employees on the job, unless the union representatives were on the job with them With respect to the nonobservance of picket lines, Shanklin said the Union could not accept this clause because it was, and is, contrary to union principles for a union man to cross a union picket line, and, therefore, the clause has no place in a collective- bargaining agreement. However, the Company insisted upon this provision in any contract. Boone told the Union that he wanted the provision so that employees would re- main on the job in the event employees of a contractor performing work at the plant went on strike, or railway employees or employees of an employer with whom the Company was doing business engaged in a strike. Boone said he was not asking the employees to refuse to cross their own picket line. The union representatives replied they never included a provision of this type in their agreements, but if any of the situations described should arise, they would sit down and work out the problem with the Company. Vicknair stated the parties were in tentative agreement on some provisions but were unable to reach any accord on the performance bond and no-strike no lockout and nonobservance clauses because "The Company insisted they would not bargain and not trade on these three articles. We did try to trade . . But, the Company kept insisting on these three articles into that particular contract, that they would sign." 3 The meeting concluded with Boone telling Shanklin and Vicknair the next move was up to the Union and they agreed to submit a counterproposal to the Company. Thereafter, the Union mailed its counterproposal to the Company and the next meeting was held on July 12. This meeting, as related by Vicknair, followed the same pattern as the previous session, there was some discussion on contract terms but the parties reiterated their respective positions with respect to the three clauses in dispute. Boone testified to the same effect as Vicknair. The next meeting was held on July 31, with a Mr. Mapp of the Federal Mediation and Conciliation Service. Mapp held separate conferences with the parties and the meeting ended inconclusively. The last meeting took place on October 10. At this meeting Vicknair and George Thompson, district director, appeared on behalf of the Union. Mapp also attended the meeting. Thompson, according to Vicknair, opened the meeting by stating there were seven or eight provisions upon which the parties could not reach agreement, namely, wages, holiday pay, overtime, dues' checkoff, union security, and the three provisions in question. Vicknair said there was some discussion, but no agreement, on wages and related provisions. He further stated the parties maintained the same positions regarding the three clauses, except that the Company rejected the Union's offer to drop its request for a union shop if the Company would withdraw its performance bond clause. 3 Vicknair's testimony as a witness called by the Company under Rule 43(b) of the Federal Rules of Civil Procedure. AMERICAN COMPRESS WAREHOUSE, ETC. 437 Boone likewise testified Thompson outlined seven or eight provisions in dispute and that they briefly discussed wages and related subjects, without reaching any agree- ment. Boone also restated his position with respect to the three provisions in question. In outlining his position on these three provisions, on and after June 27, Boone ex- plained he did not insist or demand that these clauses be included in any final agree- ment, but he "wanted some assurance" the employees would work and "wanted some protection in this contract." Further, along the same line, he testified, "I wanted a written contract on those [provisions] and the entire proposal," that he wanted a contract "with those clauses in it," and that he did not change his position throughout the five or six negotiating meetings. Concluding Findings Here the issues presented for determination are: (1) whether the Company de- manded or insisted upon inclusion of the three disputed provisions in any agreement it might reach with the Union, and (2) whether the Company, assuming it made such demand, thereby failed to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. The Company, in its brief, argues that it was merely proposing to have the three questioned clauses in any contract, rather than insisting that they be included therein. Both Shanklin and Vicknair testified that during the entire negotiating period the Company, through Boone, insisted that these provisions must be included in any agreement between the parties. Indeed, it is clear from Boone's testimony that he insisted upon the inclusion of these provisions for he repeatedly used the word "wanted," instead of "insisted," to describe his position regarding these clauses. I am convinced the testimony fully supports the finding that the Company predicated any final agreement upon the Union's acceptance of the three questioned provisions. The remaining issue to be resolved is whether the Company by thus insisting upon these provisions failed to bargain in good faith with the Union. In N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, the Supreme Court sustained the Board's finding that an employer violated Section 8(a) (5) by insisting upon the inclusion of a provision in the contract (prestrike vote by the employees) covering a matter which was not a mandatory subject of bargain- ing under Section (d) of the Act. Of course, the parties are free to bargain or not to bargain, and to agree or not to agree, on nonmandatory subjects. However, in- sistence by one party that the other accept a proposal involving a nonmandatory subject as a condition of bargaining on mandatory subjects is inconsistent with the good-faith performance of the statutory duty to bargain. Here the Company insisted that the Union agree to its performance bond provi- sion throughout the period of bargaining negotiations. It is well established, under Board and court decisions, that a performance bond of the type here involved is not within the compass of the obligation to bargain with respect to "wages, hours, and other terms and conditions of employment" and that an employer's insistence upon such a provision as a condition to signing an agreement violates Section 8(a)(5) of the Act.4 Likewise, a union violates Section 8(b) (3) by insisting that an employer post a performance bond as a condition to executing a collective-bargaining agree- ment, the intent of the bond being to afford the union security against possible de- faults by the employer.5 Having found the Company insisted upon inclusion of the performance bond clause in any collective-bargaining agreement, I find and conclude that the Company thereby violated Section 8(a) (5) of the Act.6 4 F. McKenzie Division, et at ., d/b/a Arlington Asphalt Company, 136 NLRB 742, 745 See also N L R.B v. Tower Hosiery Mills , Inc., 180 F. 2d 701 (CA 4), cert denied 340 U S. 811, Standard Generator Service Co. of Mo. v. N.L R B , 186 F. 2d 606 (CA. 8) ; NLRB v Dalton Telephone Company, 187 F. 2d 811 (C.A. 5) ; N L R.B. v F. M. Reeves & Sons, order adjudging in contempt 47 LRRM 2480 (C.A. 10), cert denied 366 U S. 914. 8 Local 164, et al, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, et al. v. N.L.R.B. (A. D. Cheatham Painting Co. of Jacksonville, Fla ), 293 F 2d 133 (C A.D.C ), cert. denied 368 U S. 824. 6 Counsel for the Company contends there are no court decisions to support the proposi- tion that mere insistence upon a performance bond constitutes a iefusal to bargain The Dalton and Cheatham cases, supra, plainly refute this contention. Counsel also cites NLRB. v Cosco Products Company, 280 F. 2d 905 (C.A. 5), as authority for his con- tention that a performance bond is a mandatory subject of bargaining In this case the court stated the employer merely suggested a bond on one or two occasions in the short period of bargaining and there was "no evidence whatever in support of the view that the respondent insisted, as a condition of bargaining, upon any specific request . . . " 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unquestionably, the no-strike no-lockout and nonobservance of picket lines clauses are mandatory subjects of bargaining. Consequently, both the Company and the Union were under statutory obligation to bargain in good faith regarding these pro- visions, although neither of them were required to agree to the proposals or to make any concessions in that respect. However, the record, including the Company's brief, plainly shows the Company entwined these proposals with the performance bond clause and that all three provisions were considered and discussed by the parties as a one-package proposition. Certainly, it cannot be said this course of action indicated any desire on the part of the Company to engage in good-faith negotiations with the reasonable expectation of arriving at some agreement with the Union on these two proposals, unless the Union acceded to its demand for the performance bond clause. As stated in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134 (C.A. 1): It is true as stated in N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404, that the Board may not "sit in judgment on the substantive terms of collective bargaining agreements." But at the same time it seems clear that if the Board is not to be blinded by empty talk and by mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations. Under the circumstances herein, I find the Company failed to bargain in good faith concerning the no-strike no-lockout and nonobservance of picket lines clauses in violation of Section 8(a) (5) of the Act. D. The refusal to reemploy employees The complaint alleges that in September and October 1962, the Company dis- criminatorily refused to recall or reemploy three employees. This phase of the case involves only the Shreveport plant which employed about 30 or 35 employees (in- cluded in the bargaining unit) during the 1962-63 season. The work performed by these employees was, and is, of a seasonal nature, the season running from approxi- mately September to January or February. Boone said when he assumed his duties as general manager in July 1961, he changed the existing employment practices of the Company by having all employees then working fill out the Company's employment application form and by following the same procedure with respect to applicants for employment. According to Boone, the new practice was well known to the employees who were working at the time as well as applicants for employment for the 1961-62 season. At the same time the authority to hire employees at the Shreveport plant was vested in R. E. Dupuy, who had been plant superintendent since about 1956. Prior to that time Foreman Eddie Stahl did all the hiring at the Shreveport plant. Boone testified that in September and October 1962, the commencement of the 1962-63 season, the Company hired about 16 new employees, that is employees who had never previously worked for the Company. All of these employees were hired as truckers or general laborers, except one who was hired as a checker. No educa- tion whatever was necessary for truckers or general laborers and the only requirement for the checker's job was the ability to read and write. Analysis and Concluding Findings 1. Andrew Baylock, Jr. Baylock worked off and on for about 17 years and was last employed, trucking cotton or flat banding, during the 1961-62 season. Baylock stated he applied for work around Labor Day 1961, and Dupuy told him to fill out an employment appli- cation form. As Baylock is illiterate the application was filled out by someone else, obviously Dupuy, on the basis of information furnished by Baylock and was signed by Baylock. This was the first time Baylock had ever submitted a written application for employment. He was then hired sometime in the fall of 1961. Baylock said he worked 5 or 6 months in 1961, but it is not clear whether his total employment covers the 1961-62 season, or the 1960-61 season, or part of each season. Baylock identified his signature on the employment application form which is dated Janu- ary 25, 1962, and, admittedly, he submitted only one such form to the Company. Just prior to Labor Day 1962, when the season was starting, Baylock went to the plant and asked Stahl for a job. Stahl said he had no work for Baylock and remarked, "Homer Ford was able enough to hire you all boys . . . " Baylock left the plant and did not thereafter return, nor did he submit an application for employment. AMERICAN COMPRESS WAREHOUSE, ETC. 439 Baylock, on undisclosed dates, signed a union card and attended one union meeting at Ford's home. Ford was formerly employed by the Company.? Boone said Baylock was employed for a few years and last worked for the Com- pany for 4 weeks in 1962, the period covering the last week in January and the first 3 weeks in February.8 Boone had no personal knowledge of Baylock's visit to Stahl and stated as far as he knew Baylock was not employed in September or October 1962, because he failed to submit an application for employment. Dupuy, like Boone, stated Baylock did not file an application for employment in September or October 1962. Dupuy further stated that under the new hiring pro- cedure foreman Stahl, his assistant, "was supposed to send them [applicants for employment] to me and get an application filled out. He wasn't supposed to put on anyone without an application." Stahl did not testify at the hearing. Baylock's undenied testimony shows that Stahl made it plain there was no job available for Baylock because of his association with Ford, a well-known union adherent. As might be expected, Baylock thereupon left the plant and made no further efforts to secure employment. It is true, of course, Baylock did not submit an application for employment. However, in view of Stahl's unequivocal position regarding his employment the filing of an application would have been meaningless and Baylock was fully justified in accepting Stahl's decision in the matter as final. Nor can it be said that Baylock failed to follow the Company's hiring practices by seeking employment through Stahl rather than Dupuy. Manifestly, Dupuy expected old employees to contact Stahl regarding employment, as they had in the past, for he issued instructions that Stahl should send all applicants for jobs to him in order that they might submit employment application forms. Here, Stahl not only failed to send Baylock to Dupuy in violation of his instructions, but also took it upon himself to summarily reject Baylock for reemployment in the manner stated above. Cer- tainly, under these circumstances, it cannot be said that Baylock forfeited his right to employment merely because he did not file an employment application. Accordingly, I find Baylock was discriminatorily refused reemployment shortly before Labor Day 1962. 2. Albert Morris Albert Morris was employed as a trucker or common laborer and worked for five consecutive seasons commencing with the 1956 season. On August 24, 1961, Morris sent a letter to the Company, by registered mail, wherein he applied for employment. The letter was a form one, which was prepared by the Union, on its own stationery, and was dated August 7, 1961. Morris heard nothing from the Company, so some- time after Labor Day he went to the plant and talked to Dupuy who stated he had to fill out the Company's employment application form before he could go to work. As Morris has but little knowledge of reading and writing, Dupuy filled out the application on the basis of information furnished by Morris, and Morris signed the same. During the course of their conversation, Dupuy remarked he had heard Morris and others had sent letters to the Company and concluded their talk by stating he had no jobs at that time, but if he needed Morris he would call him. Morris was not employed during the 1961-62 season. In September 1962, about a week after Labor Day, Morris went to the plant and asked Dupuy for a job. Dupuy, as related by Morris. said he would have to submit an employment application and instructed a young man in the office "to write me up," adding that Morris was "one of the old hands." The application was completed in the same manner as the previous application and was signed by Morris Dupuy then told Morris he had no work for him at that time but would call him when needed. A week or so later, Morris went to the plant and spoke to Dupuy, who sent him to see Stahl. Stahl said he had no work for him and if he needed Morris he would call him. Morris heard nothing further from Dupuy or Stahl and was not employed during the 1962-63 season. Boone stated when he became general manager he decided to upgrade the em- ployees and the first step in that direction was to eliminate from employment workers who were "habitual drunkards on the job or perhaps if they drank to the extremes 7In the prior proceeding cited above, the Board adopted the Trial Examiner's finding that Ford was the employee organization leader at the Shreveport plant in late 1960 and that the Company was fully aware of his union activities. s Boone, on the basis of company records going back to 1950, stated Baylock was em- ployed from about November 6 to December 25, 1952, and 2 weeks in January 1953 He was next employed about October 2, 1959, and worked until the latter part of February 1960. He was later employed from about October 12 to December 31, 1960, and from about February 6 to March 19, 1961. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off the job ." Dupuy was aware of this decision or policy. Boone said Morris was not employed in 1962, because on many occasions he had been drunk on the job and had to be sent home , that many times he had been at the plant drunk during his off-duty hours, and several times he came into the plant office in a drunken condi- tion Boone did not issue any specific instructions to Dupuy regarding the employ- ment of Morris, nor did he discuss Morris' application for employment with Dupuy. In fact the decision to employ or not to employ Morris was left entirely to Dupuy. Boone said he had received a large number of union application forms from em- ployees in 1961 , similar to the letter sent by Morris, and some of these applicants were hired by the Company. Dupuy, who had been employed by the Company for almost 40 years, stated that he refused to reemploy Morris in September and October 1962, for the reason: Well in the first place he wasn't dependable from his past record and when he came there he was I would say in a very, well I would say he was pretty well drunk. I talked to him and he even came so far as to come to my office in talking to me and in what I would consider drunk . That is what I told him. On cross-examination , Dupuy said Morris had worked in his crew for quite a few years and during this period he never saw Morris drunk or drinking on the job, nor did he ever relieve Morris from his job, or send him home, because of his drinking. Further, Dupuy stated he did not tolerate drinking on the job and any employee who did so was laid off . Dupuy admitted Morris was sober when he submitted his application for work in 1962. However, when he came to his office the second time regarding employment he was drunk or had been drinking. Dupuy conceded many other employees drank , but not as much as Morris , and they did not "have the guts to come out to my office and blow in my face." Morris admitted taking a drink when he was not working but denied he ever drank on the job. On several occasions Morris was asked if he had ever reported for work after he had been drinking and his answer was that he was never drunk, or took a drink , while on the job.9 The General Counsel contends Morris was not reemployed in September 1962 for the reasons he was "engaging in union activities " and the Company was attempting to dissipate the Union's majority status , not because he was an "habitual drunkard," as claimed by the Company . The record does not support any of these contentions. Morris engaged in no union activities whatever , other than sign and mail the Union's job form application on August 24, 1961 . In the previous case , the Board adopted the Trial Examiner 's findings and conclusions that the mere sending of an identical application by an employee, and nothing more , was insufficient to establish a discriminatory refusal to hire the applicant , since the Company had hired some other seasonal workers for the 1961-62 season who had submitted similar applica- tions. As Morris was not hired for the 1961 -62 season , it seems to me that if there was merit in his case he would have been included among the alleged discriminatees in the previous case. Be that as it may, I find Morris' application of August 24, 1961, is wholly inadequate to sustain a finding that he was discriminatorily refused re- employment in September or October 1962. Of course , there is no evidence , or even an allegation in the complaint , that the Company engaged in any acts designed to dissipate the Union 's majority status. Likewise , the record does not support the General Counsel 's contention that the Company denied employment to Morris because he was an "habitual drunkard." Dupuy, who had exclusive authority to hire or reject Morris , credibly testified that he decided not to reemploy Morris because he was not dependable and because he came to his office on at least one occasion in an intoxicated condition. I find the Company did not unlawfully refuse to reemploy Morris as alleged in the complaint. 3. Lloyd Brown, Jr. Brown worked for the Company for three seasons, 1958 , 1959, and 1960 , first as a trucker and then cutting samples. Apparently around August 23 , 1961, Brown went to the plant and applied for work to Stahl , who sent him to Dupuy to fill out an application for employment. Brown saw Dupuy and , being illiterate, Dupuy filled out the application form on the basis of Brown's answers to questions read to him, which Brown signed. Brown identified his signature on his application form, e Morris ' application for employment dated July 18, 1961 , shows he was arrested for intoxication about 5 years prior to 1961 . His second application dated September 12, 1962, indicates he had never been arrested . I attach no importance to this discrepancy for, obviously , it was an unintentional oversight on his part. AMERICAN COMPRESS WAREHOUSE, ETC. 441 which bears the date of August 9, 1961. Brown said that during the course of their talk, Dupuy asked what he thought of the Union and he replied he "didn't know." The next day, Brown signed the Union's application for employment form, which he mailed to the Company, the same as Morris. Subsequent to the time he signed the Company's employment application form, Brown went to the plant the next Monday and four consecutive Mondays and spoke to Stahl regarding employment. On these occasions Stahl said he had nothing for him, that he did not know when he would have a job for him and Brown replied he would check back with him. Admittedly, Brown was not hired for the 1961-62 season. Brown further stated that he went to the plant shortly after Labor Day 1962 and asked Stahl for a job. Stahl said he was not hiring and when Brown said he would like to go to work, Stahl replied he was sorry but he could not help him. Brown did not thereafter apply for work. On cross-examination Brown testified that he had not applied for work at the plant since the last of his five consecutive trips to the plant in 1961. Concededly, Brown filed but one company employment application, the one he identified bearing the date of August 9, 1961. On redirect examination, Brown was asked if he went to the plant "at all in '62, this season that is over or is on now?" and he answered, "No, sir." Brown was then interrogated concerning an interview by the General Counsel at Ford's home, in Ford's presence, at which time he signed a statement or affidavit after it had been read to him. Brown remembered the interview but had no idea when it occurred, and identified his signature on a two-page handwritten statement, which bears the date of October 2, 1962.10 The General Counsel then inquired if Brown had applied for work at the plant shortly before he signed the statement and he answered, "Yes, sir . . . . About three or four days I believe it was." The General Counsel's re- direct examination then proceeded as follows: Q. You didn't work two season, '61 and '62, you did not work out at the Ameri- can Compress? A. Last year and the year before last. Q. How many times did you go out last year and apply for employment? A. I believe we are right back where we started, where that error was made awhile ago. I got the impression that I didn't go out there last year or either I done forgot it one. Q. Did you or didn't you? A. I thought that was in '61 when I went out there, the last five times that I went out there. Q. After those last five times, you never went out there again? A. No, sir. Later, when further pressed by the General Counsel as to the last time he had applied for work in relation to the date of his statement, Brown responded, ". . . I believe I would say, once at the time I gave that statement was the last time that I was out there to American Compress." On re-cross-examination, Brown concluded his testimony stating he did not return to the plant and apply for work anytime subsequent to his five trips to the plant in 1961. Boone testified Brown was first employed about October 1, 1959, and worked through the first 2 weeks in February 1960. He was next employed from about September 3 to December 31, 1960, and worked 1 day in 1961. Boone stated he did not apply for work in September or October 1962. Dupuy also testified Brown did not apply for work in September or October 1962. Brown's testimony concerning his attempt to obtain employment in 1962 can only be appraised as hopelessly confusing. However, the General Counsel glosses over Brown's inconsistent and garbled statements with the assertion that while he did be- come confused on cross-examination, due to his illiteracy, all his self-contradictions and faulty recollections were cleared up on redirect examination. In my opinion Brown was just as confused on redirect as he was on cross-examination, despite the fact I granted the General Counsel much leeway in his interrogation by allowing leading and direct questions to be propounded to Brown. Nevertheless, Brown, who was a truthful witness, was unable to state with any degree of certainty that he applied for employment in September 1962. As to be expected, the General Counsel argues that Brown's testimony on this point was consistent with the statement appearing in 10 The statement was received in evidence as General Counsel's Exhibit No 4 However, it is erroneously stamped as General Counsel's Exhibit No 6a 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his pretrial affidavit mentioned above. Of course, the pretrial affidavit or statement has no independent evidentiary value and can be considered only as a measure of the credibility of Brown as a witness." Unquestionably, Brown's pretrial affidavit, dated October 2, 1962, contains the statement, "On Monday, September 10, 1962, I went to American Compress and applied for work this season Since Brown had no recollection whatever of dates, I find it incredible and unbelievable that he would have remembered the specific day and date on which he applied for work. Certainly, this is in sharp contrast to his inability to remember even the approximate date he was interviewed and signed the statement for the General Counsel. Thus, the General Counsel, in an attempt to place some time on these occurrences, asked Brown: Q. Since I took the statement from you? Has it been two years ago, a year ago, 6 months ago or what? A. That is what I am trying to figure out. Now how long has it been I don't know definite how long its been. Although at one point Brown said he applied for work 3 or 4 days before he signed the statement, he repudiated his testimony (as set forth above) a few minutes later, and wound up saying he did not apply for work in 1962. In my opinion the pretrial affidavit serves no purpose, either as a factor in evaluating Brown's credibility or as having the effect of a record of past recollection. On the evidence I find Brown did not apply for reemployment in September or October 1962, consequently, the Company did not unlawfully refuse to reemploy him as alleged in the complaint. But assuming the contrary, I would reach the same conclusion for the only evidence of Brown's union activity is the fact he sent a union job application form to the Company on August 24, 1961. Therefore, for the reasons stated in the Morris case, I find this evidence insufficient to support a finding that he was discriminatorily refused reemployment in September or October 1962. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section IH, above, occurring in con- nection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. I have found that on and after June 27, 1962, by insisting as a condition to the Respondent's entering into an agreement with the Union that the performance bond provision, quoted above, be included in the contract, the Respondent has refused to bargain collectively with the Union as required by the Act. I shall therefore recom- mend that the Respondent, upon request, bargain collectively with the Union and, if an understanding is reached, embody such understanding in a signed agreement. I shall further recommend that the Respondent cease and desist from insisting, as a condition to its entering into a contract, upon the above-mentioned performance bond, or upon any other proposal not involving terms and conditions of employment. I have found the Respondent discriminatorily refused to reemploy Andrew Bay- lock, Jr., shortly before Labor Day 1962. I shall recommend that, if the Respondent is still conducting its operations for the 1962-63 season, the Respondent offer him immediate and full reinstatement, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to the amount he would normally have earned from the date of the Respondent's refusal to reemploy him to the date of the offer of reinstatement, or if no such offer is made, to the termination date of the 1962-63 season, less his net earnings during said period.12 On the other hand, if 11 Sealtest Southern Dairies Division, National Dairy Products Corporation, 126 NLRB 1228, 1225, enfd 287 F 2d 559 ('C.A. 6). 12 Backpay shall be computed In accordance with the formula in F. W Woolworth Com- pany, 90 NLRB 289, and shall Include the payment of Interest at the rate of 6 percent per annum as provided In Isis Plumbing A Heating Co., 138 NLRB 716 AMERICAN COMPRESS WAREHOUSE, ETC. 443 the 1962-63 season has ended, I shall recommend that the Respondent place Bay- lock's name on a preferential hiring list to be considered when operations for which he is qualified are resumed for the 1963-64 season and be offered employment prior to that of any other person.13 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Compress Warehouse, Division of Frost-Whited Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor or- ganization as defined in Section 2(5) of the Act. 3. All production and maintenance employees, laborers, and seasonal and casual employees at the Employer's four compresses in Louisiana, namely, Shreveport, Natchitoches, Alexandria, and Opelousas, excluding all other employees, including office employees, clerical employees, supervisors, foremen, guards, and watchmen, as defined in the Act, constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. The Union at all times material herein has been, and now is, the exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on and after June 27, 1962, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By unlawfully refusing to reemploy Andrew Baylock, Jr., the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 7. By engaging in such acts the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) thereof. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondent did not unlawfully refuse to recall or reemploy Albert Morris and Lloyd Brown as alleged in paragraphs 9 and 10 of the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend that the Respondent , American Compress Warehouse , Division of Frost-Whited Company, Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Packinghouse, Food and Allied Workers , AFL-CIO. as the exclusive representative of all the employees in the appropriate unit , by insisting, as a condition to leaching an agreement, the Union agree to post a performance bond, or any other proposal not involving terms and conditions of employment. (b) Discouraging membership in the above Union, or any other labor organiza- tion, by refusing to reemploy , or in any other manner discriminating in regard to hire or tenure of employment , or any term or condition of employment. (c) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization , to form, join , or assist the above- named Union , or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request , bargain collectively with United Packinghouse, Food and Allied Workers , AFL-CIO, as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached , embody such understanding in a signed agreement . The appropriate bargaining unit is: 13 Stockbridge Vegetable Prodaacer8, Inc., 131 NLRB 1395, 1397 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees , laborers, and seasonal and casual employees at the Employer 's four compresses in Louisiana, namely, Shreveport , Natchitoches , Alexandria , and Opelousas , excluding all other em- ployees, including office employees , clerical employees , supervisors , foremen, guards, and watchmen , as defined in the Act. (b) Offer to reinstate Andrew Baylock, Jr., to his former or substantially equiva- lent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the dis- crimination against him , all in the manner set forth herein in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant or necessary to the determination of backpay due and to the reinstatement and related rights pro- vided under the terms of this Recommended Order. (d) Post at all four of its Louisiana plants, copies of the attached notice marked "Appendix ." 14 Copies of said notices , to be furnished by the Regional Director for Fifteenth Region, shall , after being signed by an authorized representative of the Respondent , be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered , defaced, or covered by any other material. (e) Notify the said Regional Director , in writing , within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.15 It is further recommended that unless on or before 20 days from the date of the receipt of this Intermediate Report and Recommended Order, the Respondent notifies said Regional Director , in writing , that it will comply with the above Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily refused to reemploy Albert Morris and Lloyd Brown. "If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" 11 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act , as amended , we hereby notify our employees that: WE WILL, upon request, bargain with United Packinghouse , Food and Allied Workers, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay , wages, hours of employment , and other terms and conditions of employment , and, if an under- standing is reached , embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, laborers, and seasonal and casual employees at the Employer 's four compresses in Louisiana , namely, Shreveport, Natchitoches , Alexandria , and Opelousas , excluding all other employees , including office employees, clerical employees , supervisors, fore- men, guards , and watchmen , as defined in the Act. WE WILL NOT refuse to bargain collectively with the above-named Union, if requested , by insisting , as a condition to reaching an agreement , the Union THE R. J. TOWER IRON WORKS, INC. 445 agree to post a performance bond , or any other proposal not involving terms and conditions of employment. WE WILL NOT discourage membership in the above-named Union , or any other labor organization , by refusing to reemploy, or otherwise discriminating in regard to hire or tenure of employment , or any term or condition of employment. WE WILL offer to reinstate Andrew Baylock to his former or substantially equivalent position, without prejudice to his seniority and other rights and privi- leges, and make him whole for any loss of pay suffered as a result of the dis- crimination against him. WE WILL NOT in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of their right 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 engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion , or to refrain from any or all such activities. AMERICAN COMPRESS WAREHOUSE , DIVISION OF FROST-WHITED COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above -named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office, T6024 Fed- eral Building ( Loyola), 701 Loyola Avenue, New Orleans 12, Louisiana , Telephone No. 529-2411 , if they have any question concerning this notice or compliance with its provisions. The R. J. Tower Iron Works, Inc. and Shurley Brown . Case No. 7-CA-4039. September 9, 1963 DECISION AND ORDER On June 19, 1963, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the 144 NLRB No. 53.