Lloyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Sep 12, 1949

85 N.L.R.B. 1222 (N.L.R.B. 1949)

In the Matter of LLOYD A. FRY ROOFING COMPANY and OIL WORKERS
INTERNATIONAL UNION, CIO
Case No. 16-CA-79.-Decided September 12, 1949
DECISION
AND
ORDER
On June 28, 1949, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner 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 case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, insofar as they are consistent with this
Decision and Order.2
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act. However, in adopting this finding
of the Trial Examiner, we rely only upon the following conduct of
the Respondent :
(a) Manager Plummer's interrogation on January 26, 1948, of em-
ployee Cornett as to "what's all this union talk was about."
(b) Manager Plummer's statement in a conversation with Cornett
in February 1948, that the Respondent was "partial to the plant" and
1 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 [ Chairman Herzog and
Members Reynolds and Gray].
S The Trial Examiner inadvertently stated that the hearing in the representation case
was held on January 12, 1948. The record shows, and we find, that the hearing was held
on January 23, 1948.
In footnote 4 the Trial Examiner stated that the Respondent ' s applicable position was
merely that a complaint should be dismissed where it shows on its face that the conduct
involved occurred within the six-month period ." The record shows , and we find , that the
Respondent referred to conduct occurring before the 6-month period and not within that
period.
85 N. L. R. B., No. 208.
1222
LLOYD A. FRY ROOFING COMPANY 1223
that "if these union rumors got 'started around," the Respondent
"would send it elsewheres."
(c) Superintendent Baker's statement to Cornett in February 1948,
that' "you know that Lloyd A. Fry won't stand for a union out
here, that they will shut down first."
(d) Superintendent Baker's statement to employee Heitt on May
20, 1948, that "if you hadn't fooled with this union like you have,
probably you would have gotten more work."
(e) Superintendent Baker's interrogation of employee Chambers
on January 20, 1948, concerning the Union and his statement to
Chambers that "he was going to try to get rid of the main [Union]
leaders, especially those two boys."
The Respondent contends that the aforesaid conduct is privileged
under Section 8 (c) of the Act: We do not agree, because this conduct
involved interrogation of employees concerning their union activities
and threats of reprisal for such activities, which are clearly coercive
,and, therefore, outside the protection afforded by Section 8 (c).3
2. The Trial Examiner found that the Respondent discriminatorily
discharged Cornett because of his union activity and that its asserted
cause for discharge was merely a pretext. We disagree. The facts
are substantially undisputed. According to Cornett, upon his return
from the hospital following treatment for an infection, he experienced
some difficulty in his job as "take-off mail." He then asked Superin-
tendent Baker for an easier job. Baker offered him two labeling jobs.
When Cornett expressed some doubt about handling the shingle board
labeling work, Baker replied in a loud tone of voice, "Why in hell
don't you go home." Cornett then threatened to "punch the hell out
of" Baker and when Baker requested Cornett to come with him, Cor-
nett refused, saying "to hell with you." 4 Shortly thereafter, Manager
Plummer, after hearing both sides of the incident, discharged Cornett.
We are unable to agree with the Trial Examiner that Cornett's con-
duct toward Baker was only a pretext and not the real reason for
Cornett's discharge. Cornett had been grossly insubordinate and
threatening to his supervisor, Baker. This conduct was of the kind
that would be made the subject of disciplinary action by most em-
ployers. There is not the slightest evidence that the Respondent
tolerated such conduct by its employees, whether pro-union or anti-
union. Under such circumstances, we are unable to say with the
3 Matter of B & Z Hosiery Products Company, 85 N. L. R. B. 633 ; Hatter of Jacques
Power Saw Company, 85 N. L. R. B. 440.
4 Baker testified that after Cornett expressed some doubt about the labeling job, Cornett
asked for a, job which he could "sit down and do ." Baker replied "by God, Charlie, I
don't have a job like that, I don 't even get to sit down myself to work. Do you want to
go home?" Cornett replied , according to Baker, "that is what you God-damned son-of-a-
bitches wants us to do is go home. If you say any more I will knock the hell out of you."
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner that the reason assigned for Cornett's discharge-
his behavior toward Baker immediately preceding his discharge-was
only a pretext. Cornett was a union leader, and the Respondent
may well have welcomed the opportunity of getting rid of him,-but
neither his activities nor the Respondent's attitude, gave him privi-
leges greater than those of other employees .5 Accordingly, we find,
contrary to the Trial Examiner, that the Respondent did not discharge
Charles B. Cornett in violation of Section 8 (a) (3) of the Act.
3. We also agree with the Trial Examiner that, from on and after
May 4, 1948, the Respondent did not bargain in good faith with the
Union and thereby violated Section 8 (a) (5) of the Act.'
ADDITIONAL FINDINGS OF FACT
We find that all production and maintenance employees at the Re-
spondent's plant in Stroud, Oklahoma, excluding office and clerical
employees and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.'
We further find that on April 17, 1948, and at all times thereafter,
the Union was, and now is, the duly designated representative of the
employees in the aforesaid appropriate unit, and that by virtue of
Section 9 (a) of the Act, the Union was at all such times, and now is,
the representative of all the Respondent's employees in such unit for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
ADDITIONAL CONCLUSIONS OF LAW
The Respondent did not violate Section 8 (a) (3) of the Act by
discharging Charles B. Cornett.
THE REMEDY
Although we have reversed the Trial Examiner's finding that the
Respondent violated Section 8 (a) (3) of the Act, we are still con-
vinced, and find, that the Respondent's illegal activities reveal an atti-
tude of opposition to the purposes of the Act and that danger of the
commission of other unfair labor practices in the future is to be antici-
pated from the Respondent's conduct in the past. Accordingly, in
5 Matter of Chance Vought Aircraft Division of United Aircraft Corporation , 85 N. L.
R. B. 183 ; Matter of McKinney Lumber Company, Inc., S" N. L. R. B. 38.
0Matter of The Red Rock Company and The Red Rock Cola Company, 84 N. L. R. B.
521 ; Matter of Tower Hosiery Mills, Inc., 81 N. L. R. B. 658.
7 Matter of Lloyd A. Fry Roofing Company, 76 N. L . R. B. 1052.
LLOYD A. FRY ROOFING COMPANY 122a
order to effectuate the policies of the Act, we shall adopt the broad
cease and desist order recommended by the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c),
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lloyd A. Fry
Roofing Company, Stroud, Oklahoma, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees in any manner as to their union
activities, membership, or leadership.
(b) Threatening to shut down its plant or to send it elsewhere if
its employees form or join a union.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Oil Workers International Union,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all of such activities, except
to the extent that such right may. be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
(d) Refusing to bargain collectively with Oil Workers International
Union, CIO, as the exclusive representative of all the Respondent's
production and maintenance employees at its Stroud, Oklahoma, plant,
excluding office and clerical employees and supervisors as defined in
the Act.
2. Take the following affirmative action which the Board finds. will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Oil Workers Interna-
tional Union, CIO, as the exclusive representative of the employees in
the appropriate unit described above, with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Stroud, Oklahoma, copies of the notice
attached hereto marked "Appendix A." 8 Copies of said notice, to be
'In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER," the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Sixteenth Region, shall,
after being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent discriminatorily
discharged Charles B. Cornett.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees in any manner as to
their union activities, membership, or leadership.
WE WILL NOT threaten to close down our plant or send it else-
where if our employees form or join a union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ=
organi=zation, to form labor organizations, to join or assist OIL WORKERS
INTERNATIONAL UNION, CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL BARGAIN collectively upon request With OIL WORKERS
INTERNATIONAL UNION, CIO, as the exclusive representative of
all employees in the bargaining unit described herein, with respect
to rates of pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
LLOYD A. FRY ROOFING COMPANY 1227
All production and maintenance employees at our plant in
Stroud, Oklahoma, excluding office and clerical employees and
supervisors as defined in the Act.
LLOYD A. FRY ROOFING COMPANY,
Employer.
By -----=------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Afr. Evert P. Rhea, for the General Counsel.
Mr. Coleman Hayes, of Oklahoma City, Okla., for the Respondent.
STATEMENT OF THE CASE
On June 11, 1948, Oil Workers International Union, CIO, filed a charge with
the Regional Director for the Sixteenth Region of the National Labor Relations
Board! On February 4, 1949, the General Counsel 2 of the Board issued a com-
plaint alleging that the Respondent, Lloyd A. Fry Roofing Company, had en-
gaged, and was engaging, in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), 8 (a) (3) and 8 (a) (5) of the National Labor
Relations Act (49 Stat. 449-457, as amended by 61 Stat. 136-163) herein re-
ferred to as the Act.
With respect to the alleged unlawful conduct, the substance of the complaint
is that on specified occasions between August 15, 1947, and the date of the
complaint, the Respondent engaged in conduct constituting interference with,
and restraint and coercion of, its employees at its plant in Stroud, Oklahoma,
in the exercise of rights guaranteed to them by Section 7 of the Act; that on
March 19, 1948, it discriminatorily discharged an employee, Charles B. Cornett,
because he had engaged in activities protected by the Act ; that on April 17, 1948,
a majority of the employees in an appropriate unit at the Stroud plant designated
the Union as their collective bargaining representative ; that at all times since
such designation, the Union has been the duly authorized representative of the
bargaining unit; and that on May 4, 1948, the Union requested the Respondent
to bargain collectively with respect to the rates of pay, wages, hours, and other
conditions of employment of the said employees, but that the Respondent on
or about May 4, 1948, and on specified dates thereafter, failed and refused so to
bargain.
The Respondent filed an answer admitting the jurisdictional allegations of
the complaint, including the description of the Respondent's business at Stroud,
the status of the Union as a labor organization within the meaning of the Act,
and the designation on April 17, 1948, of the Union as their bargaining repre-
sentative by a majority of the employees in the unit, but, in substance, denying
the other material averments of the complaint, including the allegations of unfair
labor practices. The answer also affirmatively alleges that "no copy of any
3 The National Labor Relations Board will be referred to herein as the Board. Oil
Workers International Union, CIO, will be designated as the Union.
2 The designation General Counsel includes the attorneys who appeared for him at the
hearing.
6
:1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge" relating to the complaint 's allegations of interference , restraint, and
coercion and the refusal to bargain "was ever served" upon the Respondent.
Pursuant to notice duly served upon the Respondent and the Union, a hearing
was held at Stroud, Oklahoma, on February 23 and 24, 1949, before the under-
signed, Herman Marx, duly designated as Trial Examiner by the Chief Trial
-Examiner.
At the hearing, the Respondent moved, both orally and in writing, to dismiss
the complaint' upon the grounds : (1)• that the alleged violations of Section 8 (a)
(1) occurred more than 6 months prior to the filing of the complaint; ' (2) that
the face of the complaint shows "that the general allegations of unfair labor prac-
tices contained in Paragraph 6" occurred more than 6 months prior to the service of
the charge;' (3) that the specific allegations of interference, restraint, and coer-
cion "refer to acts and conduct specifically protected by and privileged under"
Section 8 (c) ; and (4) that the facts in this proceeding show that the Union's
request for bargaining and the filing of the charge occurred before the Respondent
was officially notified by the Board of the Union's certification, and the Respond-
ent was under no obligation to bargain until it received such official notice.' The
0 The Respondent also filed it written motion to strike the allegations of Paragraphs
1, 2, 6, and 10 of the complaint. Paragraphs 1 and 2, which describe the Respondent's
business , refer to plants operated by the Respondent elsewhere than at Stroud. The
motion seeks to strike the references to the other plants as " surplusage ." At the hearing,
the Respondent did not bring up its motion to strike Paragraphs 1 and 2 and presumably
has abandoned that portion of its motion . In any event , if not abandoned , that part of
the motion is denied . The motion directed to Paragraphs 6 and 10 covers substantially
• -the same ground as the motion to dismiss . At the hearing, both motions were in effect
treated by the Respondent as a single motion to dismiss, were so presented in argument,
and were disposed of as such by the Examiner.
'Tile written motion to dismiss also contains an assertion that the complaint does
not affirmatively allege that the claimed violations of Section 8 (a) (1) occurred within
'6 months prior to the service of the charge . The motion does not clearly indicate whether
the statement was designed as a ground for dismissal . However, it was unnecessary to
pass on the question because the Respondent conceded during oral argument that a
complaint need not allege affirmatively that the conduct in question occurred within 6
months preceding the filing and service of a charge , and that the Respondent ' s applicable
position was merely that a complaint should be dismissed where it shows on its face
.that the conduct involved occurred within the 6-month period.
5 Paragraph 6 contains allegations that the Respondent "from on or about the 15th
-day of August 1947, to date" engaged in variously described violations of Section 8 (a)
(1). The broadly inclusive period clearly includes at least a period of time not barred
by the statute of limitations , thus necessitating a denial of the motion.
e The Examiner received evidence from the Respondent in support of the fourth ground
of its motion as described above. The record establishes that an election was held by the
Board on April 17, 1948 ; that on that date a majority of the employees in the unit duly
selected the Union as their exclusive bargaining agent ; that on the sane date the
Respondent had knowledge of the results of the election ; that the Respondent has never
challenged either the regularity or the results of the election ; that on May 3 and 19,
1948 (respectively by mail and wire ) and on June 4, 1948 ( by mail ), the Union forwarded
to the Respondent requests for collective bargaining negotiations (which requests the
Company received in one course ) ; that the Union mailed a copy of the Board ' s certifica-
tion to the Respondent on June 4, 1948 ; that the charge was filed on June 11, 1948. and
a copy thereof mailed by the Regional Office to the Respondent on June 14 , 1948 (and
received by it in due course ) ; and that a copy of the certification was mailed by the
Board to the Respondent on June 15, 1948, and received by the latter on June 19, 1948.
The view that the Respondent was under no obligation to bargain until after it received
official notice of the certification is without merit . The decisive facts are that the
employees selected the Union as their bargaining representative on April 17, 1948, and
that the Respondent knew of the selection immediately after the election was held. The
Act requires no specific form of selection of a bargaining agent . N. L. R. B . v. Consolidated
Food Corp ., 163 P. 2d 404 (C. A. D. C.), certiorari denied 317 U. S. 659. 'Moreover if
D
LLOYD A. FRY ROOFING COMPANY 1229
Examiner denied the motion. The Respondent also moved for a bill of particu-
lars. The motion was granted in part and denied as to the balance, and the
General Counsel furnished a bill in accordance with the ruling. The General
Counsel moved to amend the complaint to set forth, as subdivisions (g), (b), and
(i), respectively, of Paragraph 6, three additional alleged instances of violation
-of Section 8 (a) (1). The Respondent stated it had no objection to the amend-
ments, and the motion was granted. The undersigned granted the Respondent's
.motion to make its motions to dismiss and to strike, the Examiner's rulings
thereon, and the Respondent's answer, applicable to the indicated amendments to
-the complaint. At the close of the evidence, the General Counsel moved to amend
the complaint to conform to the evidence so that the complaint, as amended,
would include violations of the Act not previously alleged but purportedly estab-
lished by the evidence. That motion was denied. The Examiner then granted
:a motion by the General Counsel to amend the complaint to conform to the evi-
dence, with respect to such matters as dates, places, spelling of names, and
.insubstantial variances between the evidence and the allegations of the complaint,
-to the extent that such amendments do not incorporate new causes of action in
the complaint.
The General Counsel and the Respondent were represented by counsel at the
hearing, participated therein, and were afforded a full opportunity to be heard,
examine and cross-examine witnesses, adduce evidence, submit oral argument,
and file briefs. The General Counsel and the Respondent waived oral argument
and the submission of briefs.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Lloyd A. Fry Roofing Company is a Delaware corporation. Its principal
office and place of business is located in Chicago, Illinois. The Company owns
and operates manufacturing plants in various States. Among them is a plant
at Stroud, Oklahoma, where the Respondent is engaged in the manufacture of
.asphalt rolled roofing, shingles, and brick siding. In the course of its business,
the Respondent, during the period set forth in the complaint, has, from its
plant at Stroud, Oklahoma, caused, and causes, to be sold, delivered, and trans-
ported in interstate commerce to points outside the State of Oklahoma a sub-
stantial volume of the commodities manufactured at the Stroud plant.7 The
Examiner finds that, during the periods set forth in the complaint, the Respond-
ent was engaged at its Stroud plant in commerce and that its operations therein
affected commerce, within the meaning of the Act.
more were necessary , the certification was issued by the Board on May 4 , 1948, and a
,copy was mailed to the Respondent by the Union on June 4, 1948, with the bargaining
request of that date, so that the Respondent was aware of the existence of the certification
at the time it received the June 4 request to bargain.
7 The jurisdictional findings above are based on a synthesis of undenied or admitted
allegations of the complaint and upon specific admissions contained in the answer. The
-complaint does not, in terms , specifically spell out sale, delivery, and transportation in
interstate commerce of the commodities manufactured at Stroud , although such interstate
transactions may probably be inferred from the undenied relevant allegations of the com-
plaint. However , the answer admits, in effect , that the Stroud plant is engaged in inter-
state commerce and that the Respondent " is subject to the jurisdiction of the National
Labor Relations Board in that it operates a business affecting commerce within the mean-
ing of the National Labor Relations Act."
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, CIO is a labor organization which admits
to its membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement 8
The Respondent's home office is located in Chicago. The Stroud plant is one
of a number of factories operated by the Respondent in its business of manu-
facturing and selling roofing materials. The plant commenced operations in
August 1946. During the spring of 1948 (the period primarily in question),.
the Stroud factory employed approximately 60 persons, exclusive of supervisory
and office personnel. The establishment is under the general supervision of
William H. Barthel, the Respondent's vice president in charge of production..
Barthel's office is in Chicago. He comes to the Stroud plant infrequently,
exercising general supervision primarily by telephone and mail. Immediate
supervision over the plant's operations and personnel is vested in Roy Plummer,.
the resident manager of the Stroud establishment. The plant also employs a
superintendent, James Baker, who, subject to Plummer's supervision, directs the
operation of the day shift. Both Plummer and Baker have the power to hire
and fire and, within their respective spheres, direct the work of the plant's
employees.
In August of 1947, eight or nine of the employees at the Stroud plant, deeming
themselves dissatisfied with their conditions of employment, went to Bristow, a
neighboring community, in an effort to secure information about union organiza-
tion. They were unable to locate a labor organization there. Among the em-
ployees was one named Charles B. Cornett. Some weeks after the Bristow trip,.
learning about the inquiry, C. M. Massengale, a representative of the Union
visited Cornett at the latter's home in Stroud and inquired whether Cornett was
one of the group interested in union organization. As a result of the conversa-
tion, Cornett undertook to have eight or nine employees present at his house
for a meeting to be held the next day. The meeting was held as agreed and was
addressed by Massengale and another representative of the Union. Massengale
distributed membership cards to the participants, including Cornett, for the pur-
pose of soliciting the signatures of the other employees. Cornett was appointed
a committee for the purpose of collecting the signed cards and to report to the
Union any difficulty encountered from the management as a result of the union-
ization campaign. Thereafter, Cornett was one of the most active in the organ-
izational work among the employees, speaking to all but a few of them "about
joining the Union" and securing the signature to membership cards of approxi-
mately 32 employees.
On March 19, 1948, Plummer discharged Cornett at Baker's request. (The
circumstances surrounding the discharge and the claim that it was discrimina-
tory will be discussed at another point.)
On December 4, 1947, the Union filed a petition with the Board seeking desig-
nation as the exclusive bargaining representative of the employees in an ap-
propriate unit. After a representation hearing held on January 12, 1948, the
8 The prefatory statement is based upon undisputed evidence adduced at the hearing.
However, it is not designed to set forth all the undisputed facts in the case, but is pri-
marily intended as a preliminary basis for the discussion of the evidence . Reference will
be made at other appropriate points in this report to undisputed facts not set forth in,
this section.
LLOYD A. FRY ROOFING COMPANY 1231
Board entered an order designating the appropriate unit and directing an elec-
tion to determine the question of representation a The Board's order found
that the appropriate unit consisted of all production and maintenance employees
.at the Respondent's Stroud plant, excluding office and clerical employees and all
supervisors. In accordance with the terms of the order, an election was held
on April 17, 1948, with the result that a majority of the employees in the unit
voted to select the Union as the unit's bargaining representative. After the
election was held, and on the same day, the Respondent received a copy of the
tally sheet showing the outcome of the election. Plummer knew of the result
and informed Barthel by telephone that evening of the Union's designation.
The Union was duly certified by the Board on May 4, 1948, as the exclusive bar-
gaining representative of all the employees in the unit.
After the election, and beginning on July 12, 1948, representatives of the
Union and the Respondent held a series of meetings in Tulsa, Oklahoma. The
meetings were devoted almost entirely to a discussion of contractual proposals
made by the Union. (Evidence relating to the meeting will be discussed at
another point in conjunction with the claim that the Respondent failed to bargain
-collectively as required by the Act.)
B. The allegations of in terference, restrain t, and coercion
The General Counsel adduced evidence that Plummer and Baker made re-
marks on various occasions to employees constituting interference with, re-
straint and coercion of the employees in the exercise by them of their statu-
tory guarantees. The employees to whom it is alleged the statements were
variously made were Cornett, Claten Heitt, and Ben Chambers. The General
Counsel also contends that Plummer and Baker intentionally arranged for delay
in the delivery of a carload of felt (used in the manufacture of roofing mate-
rials ) in order to curtail work in the plant, thus demonstrating to employees that
pro-union activity would be punished by such curtailment.
1. The Cornett incidents io
According to Cornett, on January 26, 1948 (several months after the organiza-
tional work began ) Plummer summoned him from his work to the scale office
(normally used by Baker as an office) and inquired "what all this union talk
was about," to which Cornett responded that he "didn't know anything about it."
Then, Cornett testified, Plummer proceeded to tell him "a story" about a union
in Missouri which "had taken over a job where (Plummer had) worked," and
that "the union drove those men down there like slaves." According to Cornett's
testimony,' Plummer recounted the "advantages" of a "company union" and
stated, "If you boys wanted a union in here, why didn't you say something and
we would have had a company union." Although Plummer was called as a
witness by the Respondent, he made no reference to this conversation with Cor-
nett and entered no denial that it occurred in purport and effect as related by
Cornett." The Examiner credits Cornett's testimony and finds that Plummer, in
substance, made the statements attributed to him by Cornett.
0 See Case No. 16-RC-40; also 76 N. L. R. B. 1052.
10 This section does not include an analysis of the circumstances surrounding Cornett's
discharge. These will be separately considered at another point in this report.
"Plummer did testify to a conversation with Cornett which the manager "believe(s)"
occurred in January. However, that conversation appears to be the one that Cornett
places in the early part of February. From Plummer's version of his conversation (placed
by him in January) it is clearly not the January conversation testified to by Cornett.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cornett testified to another conversation with Plummer, in which reference-
was made to union activity, placing the incident in the early part of February
1948 and stating that it occurred in Plummer's office. According to Cornett,.
Plummer "wanted to know" why he and Baker "couldn't get along," adding
that Cornett "would have to change or they would have to get rid" of him."
During the course of Plummer's remarks, Cornett testified, the manager stated
that the Respondent was "partial to the plant" and that "if these union rumors
got started around," the Respondent "would send it elsewhere."
Plummer gave the following testimony with respect to the conversation with.
Cornett :
A: Well, it seemed like he and Mr. Baker had some difficulty out at the
front end of the shingle machine relative to Mr'. Cornett's picking of the.
shingles and throwing some Oil the floor, and Ali-. Baker talked to inc about
it, and from the conversation, why, I called Mr. Cornett into my office ant!
we talked.
Q. Did you talk anything about the union at that time?
A. Not in the way of threatening or intimidating.
Q. Do you recall any conversation about the union at that time?
A. The fact that I as plant manager would undoubtedly go on being re-
sponsible for the proper operation of the plant as outlined by my superiors in
the Chicago office.
Q. What did you say to him about the incident which resulted in your
calling him?
* * * * * * *
A. I asked him what was wrong with him and why he acted like that. He
took exception to it in a way, due to the fact that lie thought that Baker
had jumped on him unfairly, and, after all, he had been picking shingles
for a long time and had been a good employee, and then to pull something
like that, why, I could see that possibly there were two sides to the case,
and so I at that time told him that we couldn't have an attitude like that
in evidence in the mill, and that he should change his attitude.
On the critical question of Plummer's remarks about the Union, both the de-
meanor of the witness and the content of his testimony impressed the Examiner
as evasive. It will be observed that the initial question whether he spoke about
the Union drew the somewhat unresponsive and conclusionary answer that noth-
12 Sometime prior to this incident , Baker had criticized Cornett for throwing hot shingles.
on the floor and had reported the occurrence to Plummer. Cornett estimated that it
occurred in October 1947 but would not "say for sure." Plummer "believe ( d)" that it
happened in January 1948. Baker , in testifying about the incident , gave no estimate of
the date. Cornett testified that at the time of his conversation with Plummer he was not
engaged in any controversy with Baker . At about the time of this conversation, both
Plummer and Baker had , on different occasions , interrogated Cornett about the "union
talk," thus indicating their awareness , at least to some extent of his union activity.
Coupling the evidence of the interrogation with Cornett 's estimate that his difficulty with
Baker occurred in October 1947 and that , at the time of his conversation with Plummer, he
was not engaged in any controversy with Baker , Cornett's testimony suggests the possi-
bility that Plummer undertook to revive a closed incident several months after it occurred
as an excuse to reprimand Cornett and threaten him with discharge for his union activity.
However , the Examiner deems it unnecessary to make a finding as to whether the "hot
shingle" incident occurred in October 1947 or in January 1948 , nor is it necessary to draw
any inference that Plummer was reviving a closed incident in order to threaten Cornett
with discharge.
LLOYD A. FRY ROOFING COMPANY 1233
ing was said "in the way of threatening or intimidating." A repetition of the
question also drew the statement that Plummer had referred in the conversation,
to his responsibility "for the proper operation of the plant." Quite plainly, both,
answers leave untouched the central question of what Plummer had, in fact, said.
about union activity. His statement about his responsibility has the appearance
of a non-sequitur if unrelated by the witness to some conversation about the
Union in relation to managerial responsibility. The fact that Plummer made
the indicated response as his version of a "conversation about the union," while.
the answer does not refer in any way to a union, suggests that Plummer's testi-
mony omitted some significant details of his conversation with Cornett. The pe-
culiar nature of Plummer's response, taken with his demeanor and other undis-
puted evidence (discussed at other places in this report) that both he and Baker
had interrogated employees about union activity, persuaded the Examiner that
Plummer had discussed the "union rumors" with Cornett, and that Plummer's
testimony was lacking in candor. The Examiner regards this portion of Plum-
mer's testimony as unreliable. Cornett impressed the undersigned as a candid
witness. The Examiner credits Cornett's testimony and finds that Plummer
made the remarks, in substance, as related by Cornett.
Cornett also testified that early in February 1948 ("around the second"),.
Baker called him "off to one side and asked (him) about this union" and told
him, "You don't want it (the union) out here. You will have to pay two and
three dollars every couple of months because of someone dying. You never do
see anyone dead around here. You know that Lloyd A. Fry won't stand for a
union out here, that they will shut down first." Cornett testified that "there was
a lot said" by Baker on this occasion, but that that was all that he could recall.
Baker, testifying for the Respondent, was asked on direct examination whether
he recalled "having a conversation with Charlie (Cornett) . . . with respect
to the union activities or Fry's attitude toward the union." Baker responded
that he could not remember the date, but that "one night" a "fellow uptown" told
him "that the boys (were) trying to organize a union." Baker stated that he
then "went out and ... talked to Charlie about it," that Cornett "denied it,
and that (that) was all." Asked whether he had "on that occasion" or "on or
about that date" (February 2) told Cornett that the Respondent "would shut
down the plant before they would have a union in it," Baker responded, "I don't
recall making that statement, no." He also denied knowing anything about the
Company's attitude toward shutting down the plant or that he had "any means
of knowing" about any likelihood that it would do so. At a later point in his
testimony, under interrogation of the Examiner, Baker enlarged somewhat on
his previous version of his conversation with Cornett. He stated that he had
summoned Cornett to a place in the warehouse and had inquired, "Do you know
any of it ("union talk") going on at all," and that Cornett had denied any knowl-
edge of the "union talk." According to Baker, Cornett asked him who had told
him about the union activity, but Baker declined to identify his informant.
Baker also asserted at the hearing that he could not remember the identity of
the "fellow uptown" who had told him about the union activity. Baker stated
that he reported his conversation with Cornett to Plummer.
Baker impressed the Examiner as being something less than candid in his
testimony. The undersigned does not believe that Baker did not remember the
name of his "uptown" informant. The evidence as a whole indicates that Baker
was much concerned with the progress of the Union's activity, and he thought
his conversation with Cornett of sufficient importance to warrant a report on it
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Plummer. Stroud is a very small community, and it appears unlikely that
in such a setting Baker would not remember the name of a person who gave him
information which he manifestly regarded as of some importance. Significantly,
he declined to tell Cornett the name of his informant, and it appeared to the
Examiner that his claim of a faulty recollection at the hearing was but another
means of declining to state the source of his information. Moreover, both Baker's
demeanor and his assertion that he did not "recall making" a statement to
Cornett that the plant would shut down before the Respondent "would have a
union in it" impressed the Examiner as evasive. The undersigned regards Baker
as an unreliable witness. The Examiner credits Cornett's version of his conver-
sation with Baker and finds that it occurred, in substance, as related by Cornett.13
The credited evidence of the statements made by Plummer and Baker to
Cornett, as outlined above, included remarks which constitute interference,
restraint and coercion within the meaning of Section S (a) (1). Plummer's un-
denied references to a "company union" can only be construed as the expression
of a preference for such a "union" and as a thinly veiled proposal that the em-
ployees join an organization which would be in derogation of their right of self-
organization.14 The impropriety of Plummer's remarks is heightened by the fact
that they were made in the midst of an organizing campaign and while the Union's
petition for certification was pending before the Board. The statements that the
plant would "shut down" (Baker) or "send it elsewheres" (Plummer) are equally
improper.15 Similarly, Baker's interrogation of Cornett about the "union talk"
offends the Act. Within the context of the credited evidence, it was not merely
a general inquiry about "union talk." It was no accident that Cornett was singled
out for questioning. According to Cornett's credited testimony, Baker told him
that his (Baker's) attention had been directed to Cornett by a man from another
plant as a person who "knew about" the "union talk." The record as a whole
reflects a developing interest by Plummer and Baker in Cornett's union activities
(evidence of which will be discussed at other points), and Baker's interrogation
of Cornett must be viewed as an overt expression of that interest. Manifestly,
in such a setting, the singling out of one so active in union organization as Cornett
cannot be considered as a mere expression of casual interest in union activity,
but constitutes a restraining or coercive interference with the employees' right
of self-organization.
n Under cross -examination Cornett testified that about 3 weeks after organization
of the employees began , Baker interrogated him about the "union talk ," telling Cornett
that lie ( Baker ) had heard about it from an employee of a neighboring plant who told
him that Cornett "knew about it." This appears to be the conversation to which Baker
referred in his testimony . Cornett ' s testimony places it in October or November 1947 ;
Baker could fix no approximate date for the conversation . It is likely that Baker's testi-
mony referred to a wholly different incident from the one which Cornett's evidence places
in February 1948 . Baker 's version of his conversation with Cornett , whenever it oc-
curred, does not, in terms , deny that he made the remarks in February attributed to him
by Cornett . The absence of such a specific denial, the vagueness manifested by Baker's
demeanor and testimony, and the probability that he was referring to a different con-
versation from the one placed by Cornett in February lend added support to the Examiner's
conclusion crediting Cornett's version of Baker's remarks.
14N. L. R. B. v. American Furnace Co., 158 F. 2d 376 (C. A. 7) ; N. L. R. B. v. Reeves
Rubber Co., 153 F. 2d 340 (C. A. 9) ; Matter of Cati.ng Rope Works, 4 N. L. It. B. 1100;
Matter of Triplett Electrical Instrument Co., 5 N. L. R. B. 835 ; Matter of Acme Air Ap-
pliance Co ., Inc., 10 N . L. It. B. 1385, enforced as modified on other grounds , 117 F. 2d
417 (C. A. 2) ; Matter of West Kentucky Coal Co., 24 N. L. R. B. 863.
15 See , among other cases , N. L. R. B. v. Reeves Rubber Co., 153 F. 2d 340 (C. A. 9) ;
N. L. R. B. v. iVinona Textile Co., 160 F. 2d 201 (C. A. 8) ; N. L. R. B. v. Litchfield Mfg.
Co., 154 F. 2d 739 (C. A. 8) ; N. L. R. B. v. American Furnace Co., 158 F. 2d 376 (C. A. 7).
LLOYD A. FRY ROOFING COMPANY
2. The Heitt incident
1235
An employee, Claten Heitt, testified that on May 20, 1048, Baker came through
the plant with the employees' pay checks. According to Heitt, who had worked
only 3 days that week, as Baker handed him his check, the superintendent
said: "If you hadn't have fooled with this union like you have, probably you
would have gotten more work. Now take this damn check and pay some of the
debts that you owe." Although Baker testified as a witness for the Respondent,
he made no reference to the incident. Heitt's testimony stands uncontradicted.
The Examiner credits it and finds that Baker made the remarks attributed to
him by Heitt.
The General Counsel adduced evidence designed to show that Plummer and
Baker followed a policy of reducing the working time of union members, thus cur-
tailing their earnings, while permitting nonunion employees to work full time's
The Respondent presented evidence denying the existence of such a policy of
discrimination. To pass on the legal effect to be given to Baker's remarks, it is
unnecessary to resolve the conflict. Whether such a policy was in effect or not,
the implication of Baker's statement is either that Heitt would have been rewarded
with more work if he had not been a union member, or that because of his
membership he had been punished with a curtailment of work. The tendency of
either implication is to discourage the exercise of Heitt's statutory guarantees.
Within the framework of the evidence as a whole, establishing as it does an
attitude of antagonism by Plummer and Baker toward union organization and a
policy of interfering with it, the Examiner finds that Baker's remarks constitute
a violation of Section 8 (a) (1).
3. The Chambers incidents
Ben Chambers , called as a witness by the General Counsel , was employed by
the Respondent from April 1947 to May 1948 as a "trucker " ( apparently loading
trucks and related work). He terminated his employment voluntarily. His
testimony has some unusual facets . As the Examiner has credited some portions
of his testimony , while discrediting other parts , some prefatory comments about
the witness may be appropriate as an aid to the evaluation of his evidence.
Chambers entertains certain religious beliefs ( not elaborated in the record)
which apparently prohibit his membership in a Union . He did not become a
member , nor did he vote in the election , although eligible to do so. He became
aware of the union organization in the fall of 1947 because of "talk" among the
employees . Apparently as a result of some concern over the possible eff.ct of
unionization of the plant upon his job , some time in December 1947 Chambers
caused his wife to write Plummer an anonymous letter. The record does not
reveal the contents of the letter , but from the context of the evidence, it may
reasonably be assumed that it contained some information pertaining to union
activity.
Chambers has somewhat less than average powers of perception and articula-
tion. The undersigned formed the impression that the witness is predisposed to
suspect the motives of others . The Examiner believes that Chambers ' testimony
was honestly given , but because of the witness ' limitations, appropriate caution
has been exercised in evaluating his testimony . Where his evidence has been
credited , that has been clone because the demeanor of the witness and the context
of his testimony convinced the Examiner that Chambers had appraised the subject
16 See testimony of Ben Chambers.
857829-50-vol. 85-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his testimony, and was articulating it, particularly in his quotation of others,
with substantial accuracy. Moreover, his credited testimony finds support either
in other corroborating evidence, such as proof that Baker and Plummer interro-
gated Cornett about union activity and that both supervisors formed a design to
discharge Cornett for such activity, or in Baker's demeanor and the quality of
his testimony in testifying to incidents described by Chambers.
Chambers asserted that about January 20, 1948, he discussed the Union with
Baker on the main street in Stroud. According to Chambers, Baker "wanted
to know what I thought about the union, and I told him I didn't believe in it."
Then, Chambers testified, Baker asked him "who some of the boys was" (from
the context of the evidence "boys" meant union "leaders") and mentioned Charles
B. Cornett and Paul Hulsey as "two of the leaders," stating that "he was going to
try to get rid of the main leaders, especially those two boys." Chambers also
testified that Baker asked him "if the boys had threatened" him "if (he) didn't
vote for the union"; that he (Chambers) stated that he knew of no threats;
and that Baker "advised" him to "work with them" (the management) "against
the union." According to Chambers, he also gave Baker the names of employees
he regarded as active in the Union.
After testifying to a conversation with Chambers on April 17, 1948, the day
of the election, Baker gave the following testimony :
Q. Did you ever have any conversation with him about the union any
more specific than you stated?
A. I had the-the rumors had reached me that he had been threatened
by the union boys, and I asked him about it and he said he had. That
was it.
Q. Did you try to give him any assurance or anything when he told you
that he had been?
A. No, sir.
Q. Did you ever tell him that you were going to get rid of Cornett and
Hulsey or Cornett or Hulsey?
A. I don't ever remember that statement.
Q. You heard the testimony here yesterday?
A. Yes, sir ; I heard it yesterday.
Q. Did you ever recall any such conversation with Ben Chambers?
A. I do not recall it.
Q. If you had had a conversation with him in which you had made any
such statement as that do you think you would recall it?
A. I think I would.
Baker's demeanor on the stand bespoke vagueness and evasiveness, and this
impression is supported by the text of his testimony as well. While asserting
that he does "not recall any such conversation with Ben Chambers," it is ap-
parent from Baker's own testimony that he had a conversation with Chambers
in which alleged threats to Chambers were discussed, thus providing some con-
firmation, if slight, that Chambers and Baker had a discussion about union ac-
tivities. Yet, Baker's testimony is lacking in circumstantial details of the
Conversation. It seems unlikely that the conversation had the abrupt and limited
character which Baker's testimony appears to give it. It is also curious that
Baker's response to a question whether he had told Chambers of an intention
"to get rid of Cornett and Hulsey" should be that he does not "remember that
statement." As did other parts of Baker's testimony, this portion of his evi-
dence, in the light of the witness' demeanor as he gave it, impressed the Examiner
LLOYD A. FRY ROOFING COMPANY 1237
as lacking in candor. On the other hand, Chambers' version of the conversation
impressed the Examiner as credible. Corroborative support is given to it by
Baker's admitted interrogation of Cornett concerning "union talk" and by the
credited testimony of Cornett and Heitt concerning Baker's anti-union activities
(to which reference has been made above). The Examiner credits Chambers'
version of his conversation with Baker and finds that it occurred, in substance,
as related by Chambers. It is also found that Baker's interrogation of Chambers
concerning the Union's leadership, the expression of his intention "to get rid of
the main leaders," and his invitation to Chambers "to work with" the manage-
ment "against the union" offended Section 8 (a) (1) of the Act. That Cbam-
bers had religious scruples against unionization does not affect the result set out
above ; it was the obligation of the management to leave him free to indulge
them or not as he saw fit without intervention from supervisory personnel.
Chambers also testified that Baker spoke to him about the Union on the day
of the election (April 17). According to Chambers, Baker came to the .place
where the former was working and asked him what he "thought about voting
for the union," and Chambers responded that "the union might be okay" but
that he "just didn't believe in it." Chambers testified, that Baker then inquired
whether "it was on account of my religious beliefs" and that the former replied
in the affirmative ; that Baker then stated, "it wouldn't hurt you a damn bit to
vote against the union" ; that Chambers responded that he understood Baker's
meaning ; and that the foreman said, "All right, think about it," and walked away.
Testifying to the incident, Baker supplied a very brief version of the conver-
sation. He asserted that Chambers came to him "and asked me about it (the
Union) and I said that was up to him." Baker denied that he suggested to
Chambers how the latter should vote or that he threatened or offered any induce-
ment to Chambers in connection with the election.
Baker's testimony concerning his several conversations with employees about
the Union lacked candor. Initially, he stated that he did not "remember" having
"any talk with Ben about the union." The quality and context of his testimony
and his demeanor led the Examiner to conclude that he was an unreliable witness.
Here, too, Chambers' testimony impressed the undersigned as a substantially
accurate version of the conversation. The Examiner credits Chambers' testimony
concerning the incident. From other undisputed evidence in the case, it is clear
that Chambers was greatly concerned about the security of his job and that his
concern was known to Baker. In that setting, the construction to be placed upon
Baker's remarks is that they were intended either as a veiled threat of reprisal
or as a promise of favor if Chambers "voted against the union." Certainly they
conveyed the meaning to Chambers that he would benefit in some way by fol-
lowing Baker's suggestion. Within the framework of all the evidence, it is
found that Baker's remarks to Chambers constituted a violation of Section
8 (a) (1).
Chambers also testified that some time in the middle of March 1948, he had a
conversation with Plummer and Baker. At the plant one day, Chambers told
Plummer that he wished to speak to him in private. Plummer agreed to Cham-
bers' suggestion that the latter come to the manager's house. That evening
Baker and Chambers drove out to Plummer's house in Baker's car. The car was
parked in front of the house, and the three engaged in conversation in the car,
Plummer seating himself in the rear and Baker and Chambers in the front.
It is evident from undisputed portions of the conversation which followed
that at least one of the objects of Chambers' visit was to find out from Plummer
how the Union would affect his job. Chambers told Plummer that he was
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible for the anonymous letter sent to the manager the previous De-
cember.i4 According to Chambers, he inquired of Plummer whether "if the
union went in it would have any effect on my job," and Plummer explained that
if a closed shop resulted, Chambers would have to join the Union in order to
retain his job. Chambers also testified that Plummer stated that "he didn't
want the union in the place" and "mentioned to me that work with them like
I was working, just go ahead and work again the other ("union") boys, that
I had no need of worrying about my jobs 1B
During the course of the conversation, Chambers referred to the fact that
there had been some delay in the. delivery to the plant of a carload of felt
(used in the manufacture of the Respondent's products). Chambers testified
that he "mentioned to Mr. Plummer about the boys being scared, especially the
ones for the union," because of the delayed shipment ; that Plummer said that
he "knew where the load of felt was"; that at that point, Baker "made a mo-
tion . . ., so to speak, for Mr. Plummer not to talk, that he was saying too
much" ; and that Plummer told Baker that he "knew what he was doing." At
another point in his testimony, Chambers described Baker's alleged motion
as the "eye motion" and "as a signal that he (Plummer) was saying too much."
Under cross-examination, Chambers enlarged on this phase of his testimony.
He expressed the view that the felt was deliberately delayed by Plummer as
an excuse to curtail the working time and consequent earnings of pro-union
employees. Asked whether the statement was made (presumably by either Plum-
mer or Baker) "that the reason the car of felt was held up was to cut some-
body's time," Chambers asserted that "to cut the time" was not "mentioned in
(those) words," but that Plummer said "they was going to hold up things and
scare the boys to where they will all quit what would." Under cross-examina-
tion, also, Chambers testified that Plummer's statement that he "knew where
the load of felt was" was preceded by the remark (by Plummer), "I knew it
would work." At this point in his testimony, Chambers also described Baker's
"eye motion" as "not exactly a wink," but as consisting of a nod by Baker in
Chambers' direction while Baker was looking at Plummer. Chambers asserted
that he construed that as a signal to Plummer to discontinue that phase of the
conversation, basing his conclusion on Plummer's alleged response, "I know
what I am doing."
With respect to Plummer's alleged suggestion that he continue to "work
again the other boys," Chambers admitted under cross-examination he had
previously done "not a thing" to work against the Union at the instance of
either Plummer or Baker, and that Plummer, in substance, had said to him
that he need not worry about his job if he proceeded with his work as he had
in the past.
17 Chambers gave no testimony regarding the anonymous letter. Plummer testified to it.
The Examiner credits his testimony concerning the letter.
11 Toward the close of his direct examination concerning the March 15 conversation, and
.after several questions whether "anything else" was said and a response by Chambers that
he could not "remember ," he was asked whether "anything was said by either Baker or
Plummer with reference to conferences or meetings between the Company and the union."
Chambers , possibly unresponsively , quoted Plummer as stating that "they were going to do
all in their power to go again the union boys to keep out all they could do." This part of
the testimony does not reveal what the management was "going to do" nor from what it was
going "to keep out" the "union boys." The vagueness and possibly unresponsive nature of
the Chambers ' answer does not warrant any finding either as to its meaning or the credibility
of the witness in quoting Plummer.
LLOYD A. FRY ROOFING COMPANY 1239
Plummer's testimony made no reference to Chambers' contention that the
manager told him to continue, as in the past, to "work again the other boys," and
not to worry about his job. However, Plummer did enter a general denial that he
had either "threatened" or "held out any inducement or promise of benefit or
reward" to Chambers. Plummer confirmed the fact that Chambers expressed his
concern about the effect of unionization upon his job, testifying that he told the
employee that it would be compulsory for him to join the Union if a union shop
were authorized in the plant. Plummer also agreed that the delayed felt
shipment was discussed, stating that Chambers informed him that there was
"talk . . . around the plant" that Plummer had deliberately delayed the ship-
ment "in order to make it tough on the boys." Plummer testified, also, that he
had, as stated by Chambers, remarked that he knew where the carload "was all
the time."
To the extent of Plummer's testimony set out above, his version of the conversa-
tion relating to the delayed felt shipment does not differ significantly from that
of Chambers. However, his testimony diverges from that of Chambers in other
material respects. Plummer denied making the remark, "I knew it would work,"
asserting, in effect, that Chambers had misinterpreted a statement Plummer made
to Baker in the car that "that was the exact interpretation that would be taken by
the men in the mills, that the failure of the carload of felt to arrive would be
because the company was purposely withholding it." Plummer testified that he
told Chambers and Baker that the carload was then "in the Fort Worth switch-
yard of the Frisco Railroad waiting for the Frisco train leaving for Tulsa." The
manager denied that Baker had signalled him that he "was talking too much,"
although the witness asserted that "at that time Mr. Baker was nervous and
maybe he did jerk his head."
Plummer also gave undisputed testimony that the carload of felt had been
shipped five days earlier from the Respondent's Houston plant ; that such ship-
ments usually took 5 days and came via Fort Worth ; that when he had ascer-
tained on the day of his meeting with Chambers that the carload was not listed
with the Frisco Railroad as scheduled for arrival that day, he had taken the
question up with the Frisco's Tulsa office and had been informed that the ear had
been delayed in Fort Worth and was then "waiting for the Frisco train leaving for
Tulsa"; and that the carload. actually arrived the next day, March 16. Plummer
also denied that there had been any plant shut-down or curtailment of work as a
result of the delay.
The credible evidence does not preponderantly establish that Plummer requested
Chambers to engage in anti-union activity, that the carload of felt was deliberately
delayed, or that Plummer told Chambers that the delay was intentional.
As noted above, Chambers appears to have limited powers of understanding and
articulation, as well as a suspicions nature. The conclusion that he was asked
to engage in anti-union activity rests primarily upon a paraphrasing of remarks
he attributes to Plummer, namely, to "work with them like I was working just
go ahead and work again the other boys, that I had no need of worrying about
my job." The imputed statement suggests that he had previously worked "again
the other boys," but at another point, he denied that he had done so. Under
cross-examination, he agreed that Plummer, in substance, had said to him: "If
you go right along with your work like you have been, you needn't worry about
your job." His agreement that Plummer had phrased his assurance in that vein
does not, of course, exclude the possibility that he was also asked to work "again
the other boys." However, screened against the background of Chambers' ap-
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently suspicious nature and his limited power to paraphrase, it suggests to
the Examiner the strong possibility that the alleged request to "work again the
other boys" is part of Chambers' interpretation of Plummer's suggestion that he
continue his work as in the past ; and that Chambers' translation of Plummer's
remarks is primarily a projection of the former's assumption that both he and
Plummer shared a hostility toward the Union and that what the manager was
asking him to do was to continue his anti-union attitude as consideration for
continued job security. In the absence of corroborative evidence ^ the Examiner
regards Chambers' powers of perception and paraphrasing as too limited to war-
rant a finding that Plummer asked him to engage in anti-union activity and in
return for it promised Chambers that he need not worry about his job. The
Examiner finds that Plummer did not request Chambers to engage in such activity.
With respect to the allegation that Plummer intentionally delayed the felt
shipment to discourage union activity, the evidence is insufficient to support that
thesis. The primary (if not the only) support to be found in Chambers' direct
testimony for the General Counsel's view is Plummer's admitted remark that he
knew the location of the carload, Baker's alleged "eye motion," and Plummer's
purported response to the signal that "he knew what he was doing." Standing
alone, these circumstances are plainly insufficient as a basis for the conclusion
that Plummer had deliberately arranged to delay a shipment in order to " scare"
pro-union employees. Plummer's assertion that he knew the location of the
felt is consistent with innocence of motive, particularly in the light of his ex-
planation of the occasion for the remark. It was not until his cross-examination
that Chambers for the first time testified that Plummer made the remark, "I
knew it (the delayed shipment) would work" and expressly attributed to the
latter statements, in effect, that he had deliberately delayed the carload to
"scare" pro-union employees. This belated, enlarged version of what Plummer
had said to him is intermingled in Chambers' testimony with speculative and
nonprobative statements that at a later date (after the election) his working
time was deliberately cut, because he did not vote in the election, together with
that of employees.who voted for the Union. From the context of Chambers'
testimony as a whole, the Examiner concluded that the remarks in question
attributed to Plummer reflected Chambers' conclusions concerning the manager's
motives and were not an accurate summary of what the latter had said. The
undersigned does not regard this phase of Chambers' testimony as reliable and
does not credit it. This conclusion is supported by the fact that there is no
evidence that production or working time was actually curtailed as a result of
the delayed delivery and by the undisputed evidence that the car actually arrived
the next day, having been delayed only about 24 hours. The Examiner credits
Plummer's denial that he made the remark, "I knew it would work," that he told
Chambers, in effect, that he had deliberately delayed the carload "to scare the
boys," and that the delivery had been intentionally delayed. Based on the credited
evidence of the conversation, it is found that neither Plummer's remarks to
Chambers nor the delayed shipment constituted a violation of Section 8 (a) (1).
16 The Examiner has previously credited Chambers' version of two conversations with
Baker. The evaluation of Chambers ' testimony with respect to his conversation with
Plummer does not detract from the conclusion reached regarding the Baker conversations.
Chambers ' version of Baker 's statements impressed the Examiner as forthright and direct
and not a mere projection of his own assumptions as to Baker 's meaning , whereas the
latter's testimony and demeanor were evasive and thus gave support to the conclusion
reached with respect to those portions of Chambers ' testimony . Moreover , Chambers'
imputation to Baker of an intention "to get rid of the main leaders " finds general corrobo-
rative support in the testimony of Cornett and Heitt.
LLOYD A. FRY ROOFING COMPANY 1241
C. The discharge of Charles B. Cornett
.Cornett was employed by the Respondent from March 6, 1947, until his dis-
charge by Plummer on March 19, 1948. He worked as a "shingle picker" at the
shingling machine R0 and as a "take-off man" on roll roofing. The roofing rolls
vary in weight from 60 to 105 pounds. Newly manufactured roll roofing is
carried upon completion along a conveyor system to a "label man," who places
a number of labels on the product which then is carried by conveyor to the
"take-off man" whose function it is to lift the roofing into a wagon, loading
it with a prescribed number of rolls, call for a "loader" who trundles the wagon
away, and to keep on repeating the process. According to Cornett's undisputed
and credited testimony the rolls come along the conveyor system at a rapid rate
of speed so that employees handling them "have to keep moving."
Cornett accidently scratched his wrist on March 12, 1948. Initially the injury
was apparently slight, but an infection set in during the next few days. On
March 15, Cornett reported his injury to Baker, apparently 21 asking him for
time off to secure medical treatment. Baker sent Cornett to Plummer.22
According to Cornett, he asked Plummer for time off to see a doctor, and the
manager manifested some anger about his "taking off," but gave him permission
to leave his work to secure medical attention. Cornett testified that he and
Plummer discussed not only the question of medical treatment, but other matters
as well. The following is an excerpt from Cornett's direct examination :
Q. What else did Mr. Plummer say at that time? .
A. Well, lie-he was wanting to know what was wrong with me, he said,
"there hasn't been no one able to get along with you for the last few weeks,
Charlie, what is wrong with you?" And I told him there wasn't nothing
wrong and lie told me that I would either have to straighten up or that
they'd have to get rid of me.
Q. Did he say anything else during conversation?
A. Well, yes, said that he was running the plant union or no union, said
if he got ready to'run the machinery fast that he would run it fast and
if he got ready to run it slow he would run it slow, the union didn't have
nothing to say about it, and said that "if these men out here can't do it
that we damn sure can find men uptown that will.
a * * a * *
Q. Was Slim Massengale mentioned during that conversation?
*
A. Yes, sir. He asked me, or he said while we was talking there about
my wrist, he said, "you are the smart guy that contacted Massengale in
Tulsa."
Plummer testified that he "can't recall Charlie's coming to me," and his testi-
mony makes no other reference either to the fact or the details of this conver-
sation. Cornett's testimony impressed the undersigned as reliable, and his
20 The speed of the machines, whether excessive or not, was regarded as a grievance by
Cornett and other employees and was the precipitating cause of the initial efforts by
Cornett and several others to organize the plant.
21 The record does not disclose precisely what Cornett told Baker in reporting his injury,
but from what followed, it is inferable that Cornett asked for time off to see a doctor.
® The finding that Baker referred Cornett to Plummer and that Cornett went to see the
manager is based on Cornett's undisputed testimony. Plummer testified that he does not
remember whether Cornett came to see him or whether the latter or Baker told him about
the injury. Baker testified that he made out a report of the injury, but that he does not
remember whether he sent Cornett to Plummer or to a doctor.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
version also fits the pattern of other evidence of hostility (some of it undenied)
by Plummer toward the union activity in the plant. The Examiner credits
Cornett's testimony with respect to his conversation with Plummer.
Claten Heitt testified that on March 15, while he was taking a drink from a
fountain adjacent to Plummer's office, the door of which was open, he overheard
the latter tell Baker, in substance, that if they could "get rid of Charles Barnett"
(Cornett)," it would "stop our union troubles." Plummer testified that he could
not "remember any such conversation," and Baker gave no testimony concerning
the incident. The Examiner gained the impression that Heitt was a reliable
witness. Moreover, it is significant, that Plummer's remarks were made at a
time when, according to Cornett's credited testimony, Plummer had Cornett's
discharge under consideration. Because of the indicated factors and the quality
of Plummer's and Baker's testimony about the incident, the Examiner credits
Heitt's testimony.
Cornett went to see a doctor who placed him in a hospital where he remained
for several days taking treatment for the infection, including injections of peni-
cillin. According to Cornett's credited testimony his back felt weak upon his
discharge from the hospital and the doctor promised to call the plant and request
that the employee be given less strenuous work for a time. However, the doctor
"forgot" to do so.
Cornett returned to work on March 19 as a "take-off man." According to his
testimony, because of his weakened back, he experienced some difficulty in lifting
the rolls which weighed 'either 60 or 80 pounds, and when Baker came by his
work place, he told the superintendent that his back had been weakened by the
injections and requested "an easier job." Cornett's version of his conversation
with Baker, after requesting "an easier job" follows:
Baker said, "Well, how about labeling here?" There isn't over four men
in the plant that can keep tip labeling here, and I told Baker, and he said,
"Well, how about labeling boards then?" I said, "I don't know ; I'll try it."
Then he screams out then, "Why in hell don't you go home" in a loud tone
of voice, of which I was pretty nervous, I hadn't been back from overseas
long. I told him then "Don't say it again or I'll punch the hell out of you."
I said, "Baker, I am out here to make a living the same as you are." Baker
said, "Come with me," and I said, "To hell with you" and stayed there and
kept working. Baker left.
In some material particulars, Baker's version of the conversation is substan-
tially the same as Cornett's ; in others divergences appear. Baker asserts that
when he asked Cornett whether he "could label shingle boards" (a less strenuous
task than labeling "on the line"), the latter, instead of stating that he would
"try it," as he claims, asserted that he did not "think" he could "do that" and
that he needed "a job I can sit down and do," to which Baker responded, "By
23 Heitt referred at several points in his testimony to Cornett as Barnett. Upon redirect
examination , he explained he knew Cornett and his correct name because he had worked
with him, but that he had been unable to think of Cornett's correct name. Cornett's full
name is Charles B. Cornett. Heitt knows the other employee's middle initial and testified
that fellow employees sometimes referred to Cornett as B. (see also testimony of Jewell
Morris ) and that he usually called him Charles or B. It is not improbable that Heitt con-
fused the name because of the practice of referring to Cornett as B. In any event, the
Examiner attaches no significance to Heitt's confusion of the names, since it is clear that
he knew Cornett ( Heitt worked in the plant throughout the year of Cornett's employment),
and it is apparent that the mistake was an innocent one.
LLOYD A. FRY ROOFING COMPANY 1243
God, Charlie, I don't have a job like that, I don't even get to sit down myself to
work. Do you want to go home,-Charlie?" According to Baker, Cornett then
told him, "that is what you God-damned son-of-a-bitches wants us to do is go
home. If you say any more I will knock the hell out of you." Baker made
no reference in his direct examination to the tone of voice in which he suggested
that Cornett go home, but on cross-examination he agreed with a suggestion that
he spoke to Cornett in "a normal tone of voice."
An ex-employee, Jewell Morris, whose place of work was from 8 to 10 feet
from Cornett's and overheard at least part of the Cornett-Baker conversation,
was produced as a witness by the General Counsel. His version of the conversa-
tion was fragmentary. According to him, after Cornett asked Baker "for an
easier job," the superintendent said, "If you can't do your job punch out and
go home," whereupon Cornett "got mad" and said, "I will punch the damn hell
out of you" or "something like that." Morris asserted that he heard no reference
to "labeling" or "sitting down."
A few minutes after the Cornett-Baker colloquy, the superintendent secured
Cornett's time card and summoned Cornett to Plummer's office. Baker gave
Plummer an account of Cornett's behavior. Plummer requested an explanation
from Cornett, and the latter stated that he had behaved as he had because
Baker "thought I should go home," whereupon Plummer discharged Cornett
upon Baker's recommendation.`
The General Counsel adduced undisputed evidence" that other employees
(Masquit and Carter) who had been injured previously had received light duty
assignments, requiring little exertion, for a few days after their return to work.
There is also no dispute that Cornett was a "good worker." 2U
It is fundamental that the motive underlying a discharge controls the applica-
tion of Section 8 (a) (3). The mere existence of cause for an employee's dis-
charge is not decisive ; if in fact the employer's real motive is a discriminatory
reprisal for union activity, the asserted cause becomes only a pretext, and the
discharge offends the statute.
To ascertain the motive for Cornett's discharge, therefore, requires considera-
tion, not merely of the precipitating circumstances, but of the antecedent history
of the Respondent's attitude, as manifested by Plummer and Baker, toward the
organization of its employees, as well as toward Cornett. The evidence is
undisputed that Cornett was a leading factor, perhaps the principal one, in the
unionization of the plant. The credited evidence demonstrates that the manage-
ment suspected Cornett's role from the early days of organization. Suspicion
developed into certainty, as manifested by the undenied proof that Plummer
interrogated Cornett about the "union talk" in January and expressed his pref-
erence for a "company union" ; by Baker's admitted interrogation of Cornett
"about this union" ; and by the credited evidence that both Baker and Plummer
told Cornett that unionization would result in the closing of the plant. This
interest in Cornett was attended by a developing design to "get rid" of him, as
established by the credited testimony of Chambers, Heitt, and Cornett. That
attitude was crystallized only a few days before Cornett's discharge by the
24 The facts relating to Cornett's discharge in Plummer's office are based on a synthesis
of testimony of Plummer, Baker, and Cornett.
u See Cornett's testimony.
21 See testimony of both Plummer and Baker. Cornett testified, without contradiction
from Plummer, that the latter had told him on the day of his discharge (presumably during
the conversation in Plummer's office) that he "was the best hand that he (Plummer) had
out there."
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation in Plummer's office when Cornett sought leave to secure medical
attention. From the context of that conversation (the occurrence of which
Plummer does not deny, saying only that he "can't recall Charlie's coming to me"),
it is a legitimate inference the meaning Plummer intended to convey to Cornett
was that unless the latter discontinued his union activity, the manager would
"get rid" of him. Plummer's admonition and warning to Cornett on that occasion
and the former's expression of his intention to run the plant and the machines r`
as he saw fit "union or no union" were irrelevant to the object for which Cornett
came to Plummer's office and reflect a developing determination to find a pretext
for Cornett's discharge. Significantly, this conversation occurred on the same
day that Heitt overheard Plummer express the view that the Respondent' s "union
troubles" would be solved if it could "get rid" of Cornett.
Moreover, in a moral sense, at least, it is not clear that Cornett's remarks
furnished good cause for his discharge. Baker knew that Cornett had been in
the hospital and did not "disbelieve" the former's assertion that his back hurt
him. The Examiner does not credit Baker's assertion that Cornett stated he did
not "think" he could label shingle boards, which the latter frankly admitted
under cross-examination is not "a fast operation." Nor does the Examiner credit
Baker's assertion that he used a "normal tone" of voice in proposing that Cornett
go home. The very fact that Baker asserts that he used the phrase, "By God,
Charlie, . . ." suggests something more than a mild or "normal" reaction to
Cornett. While Morris' paraphrase of Baker's remarks differs in content from
the account given by both Baker and Cornett, its substance (which the Examiner
believes represents Morris' best recollection) suggests that Baker's statement
was provocative. The undersigned believes that when Cornett expressed some
doubt that he could handle the shingle board labeling work, Baker took offense
and spoke to Cornett in a loud tone of voice carrying with it a reproving or
admonitory connotation, reflecting a pre-existing hostility toward Cornett.
Cornett was undoubtedly aware, at least to some degree, of Plummer's and Baker's
attitude toward his union activity, having been interrogated by both concerning
it and having been warned in veiled terms by Plummer only a few days before.
In that setting, an aggressively voiced proposal that he go home , thus suggesting
that he lose earnings and perhaps conveying the impression to him that his
services were not required, must be regarded as somewhat provocative, and it is
not surprising that Cornett reacted aggressively to Baker's proposal and his
manner. Inasmuch as it is conceded that Cornett had been a "good worker,"
from which it may be assumed that he was not given to shirking his duties, it
would not have been unreasonable for Baker to indulge Cornett' s passing necessity
for light work, as had been done with other employees, even though it was the
plant's policy, as Baker testified, to give an injured employee lighter duties only
upon a doctor's recommendation. Instead, the Examiner finds, Baker made a
provocative proposal and expressed it in an unnecessarily aggressive manner.
Based upon the evidence as a whole, the undersigned finds that the real motive
for Cornett's discharge was not his behavior toward Baker, but that he was
discriminatorily discharged because he had exercised the guarantees set forth
in Section 7 and in order to discourage membership in a labor organization, and
that the Respondent thus contravened Section 8 (a) (1) and (3).
24 Significantly, it was the speed of the machines , claimed to be excessive by Cornett and
others , which led toward the first organizing steps in the plant. The fact that Plummer
harked back to the speed of the machines on this occasion at least strongly suggests that he
had Cornett 's union activity in mind in complaining about the employee ' s attitude.
LLOYD A. FRY ROOFING COMPANY 1245
D. The alleged refusal to bargain 28
The principal proof bearing on the Respondent's alleged refusal to bargain was
adduced by the General Counsel through the testimony of H. L. Campbell and
W. F. Noell, international representatives of the Union, and by the Respondent
through the evidence of its vice president, William H. Barthel. The material
facts are not in dispute; there appears to be conflict only in the interpretation
of, and legal effect to be given to, the evidence. In fact, Barthel agreed that the
testimony of Campbell and Noell "with respect to times and places and general
matters that transpired conforms substantially with (his) own record" (with the
exception of one matter neither relevant nor important here).
Shortly after the election, the plant membership of the Union designated a
bargaining committee to draft a proposed agreement and engage in bargaining
negotiations with the Respondent. Campbell was assigned by the Union to work
with the committee and to assist it in drafting a proposed contract. The proposal
was drafted and submitted to, and approved by, the membership. The proposed
contract contained 25 separate articles dealing, among other things, in substantial
elaboration with rates of pay, hours of work, premium and overtime pay, grievance
procedure, vacations, holidays, union security, check-off, and seniority.
On May 3, 1.948, Campbell, on behalf of the Union, wrote a letter to the
Respondent, addressed to its Chicago office, enclosing two copies of the proposed
contract and requesting a date for a bargaining conference "for the purpose of
negotiating this agreement." The Respondent received the letter and the contract
proposal in due course. It did not answer the letter. On May 19, 1948, Campbell
wired Lloyd A. Fry, the Respondent's president, "urging him to set a date for
conferences" but received no response to the wire. On June 3, 1948, Campbell
put in a long distance telephone call for Fry at the Chicago office but was in-
formed that the president was out of the office and that Fry's son, a vice president
of the Company, was available if Campbell desired to speak to him. Campbell
spoke to the son who told him he had no knowledge of the matter and that there
was then "no one in the office available and qualified to discuss" the subject. The
next day, June 4, Barthel called Campbell from Chicago and told him the firm
had not as yet "received an official notice from the Board as to the result of the
election,"" but did not state that that was the reason for the firm's failure to
respond to the Union's previous communications. Campbell volunteered to send
Barthel a copy of the certification, and the latter accepted the offer. On June 4,
Campbell mailed Barthel a copy of the certification, requesting again that a date
be set for bargaining negotiations. The letter and the copy of the certification
were received in due course. On June 5, a Federal conciliator called Barthel
from Oklahoma City and informed him that he had heard "that the boys at the
plant had taken a strike vote." On June 11, Barthel wrote to Campbell, explain-
ing that his response had been delayed because of his absence from the city and
28 The General Counsel's position, as expressed in his evidence, is that, while there were
many negotiating meetings between the Union and the Respondent, the latter did not
negotiate or bargain in good faith with respect to the Union's contractual proposals. For
some reason not made clear by the record, the complaint specifically charges a failure to
bargain in good faith only with respect to union security. The complaint, however, also
alleges in general terms a refusal to bargain. As the absence of good faith in negotiations
is tantamount to a refusal to bargain, the general allegation is sufficient to sustain findings
of bad faith in negotiations on other issues besides union security.
28 Plummer had called Barthel in the evening of the day the election was held and had
informed him of the outcome. Moreover, the Respondent was represented at the election by
an observer who certified the tally of ballots.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that he had written to the Board that the Respondent had not been
"advised officially" as to the election results and that the firm would communicate
with the Union "regarding a date for an early meeting" upon "receipt of (the)
official certification." S0 About June 29, Barthel called the Union's district director
on the telephone, and the two made arrangements for representatives of the
Respondent and the Union to meet on July 12 in Tulsa.
The representatives of the parties met in Tulsa on July 12, August 10, 11, and
24, September 9 and 10, October 19, and November 19. Barthel, attended
by Plummer, represented the Respondent at all the meetings. Plummer did not
participate in the negotiations . Barthel was the Respondent 's sole bargaining
representative. Campbell represented the Union at some of the meetings, while
Noell represented it on other occasions when Campbell was otherwise engaged.
Both Campbell and Noell were attended by the Union's committee, but apparently
acted as spokesmen for it.
The central question posed by the issues and the evidence is whether the Re-
spondent bargained in good faith or whether it engaged in the meetings as a
gesture of compliance with the statutory mandate without a serious design of
searching out the areas of agreement, and if they could be found, to embody
them in a written contract. It would fulfill no purpose to make a detailed
canvass of all the evidence bearing on the meetings . Several significant facts
emerge from the record as illuminating guides to the Respondent's intentions
and point the way to a conclusion.
All of the conference dates were set to suit the convenience of Barthel who
has general supervision over the Respondent's production and distributive
operations and spends most of his time "in the field" away from the Chicago
office. During the negotiations it was "frequently necessary" for Barthel to
terminate the meetings in order to return to Chicago or to travel "to other
plants in order to carry on (his) duties." Some of the meetings lasted sub-
stantially less than the working hours of a day. It is apparent from the con-
text of the evidence as a whole that the Union regarded the shortness of the
meetings and the interruptions occasioned by Barthel's departures as an im-
pediment to the negotiations . On a number of occasions , the Union 's representa-
tives suggested to Barthel that he arrange to have another person represent
the Respondent at the conference, but Barthel declined to do so, stating that
the Company's president had delegated him to represent it at the meetings.
The initial meeting was devoted primarily to a reading and explanation by
Campbell of the proposed agreement and to a discussion of the different articles.
Campbell and Barthel agreed informally that agreements reached on any articles
would be regarded as "tentative." 81 Agreement of that type was reached at that
meeting on the "recognition clause" and the term of the contract.
"Barthel wrote to the Board on June 11 requesting , in effect, that the Respondent be
officially advised of the results of the election . In response the Board mailed a certified
copy of the certification to the Respondent on June 15 , and it was received by the Company
on June 19 . On June 23 , the Respondent also received from the Board an original
certification.
31 At the hearing Campbell and Barthel expressed their informal agreement in some-
what different terms. Campbell stated that the articles agreed upon "would be considered
as a tentative agreement until the complete agreement had been reached on all of the
articles of agreement" and that his " impression" was that agreement upon such agreed
articles was to be considered "final " and that the parties "would not have to discuss them
further." Barthel ' s version of the understanding was that "anything we agreed to would
be tentative , contingent upon the arrival of a complete agreement ." Barthel's statement
suggests an understanding that no "tentative " agreements were to be regarded as binding
LLOYD A. FRY ROOFING COMPANY 1247
Barthel terminated the meeting in the afternoon, after 4 or 5 hours of dis-
cussion, stating that he had to return to Chicago. The Union's representatives
expressed disappointment that the conference could not be continued until the
end of negotiations. Barthel stated that he was unable to specify another meet-
ing date, but that he would communicate with Campbell concerning a date for
the next meeting. He did so in a week or 10 days, and August 10 was fixed
as the date for the next conference.
With respect to the more important articles, termed by Noell "the heart" of
the Union's proposed agreement, no accord was ever reached, tentative or
otherwise, the Respondent adhering to its position substantially from the outset
that it would not agree either to the substance or the terms of such articles.
These included provisions for an increase in wages, payment for holidays, shift
differentials, paid sick leave, daily overtime (for work over 8 hours), premium-
pay for the sixth and seventh consecutive day of work, union-shop security,
and check-off. Tentative agreements were reached on many items during the
course of the negotiations, a few of some relative importance such as provisions
for paid vacations, seniority, and a grievance procedure, but in the main of
substantially less importance than those to which the Company refused to agree,
and in some instances involving obligations imposed upon the Respondent by law
(recognition of the Union, after proper designation, and payment of time and
one-half for weekly hours over 40).
Throughout the negotiations, the Respondent made no counterproposals of
any substance to the Union. This was a policy adopted by Barthel upon the
advice of the firm's president and its counsel." According to Barthel, he "thought.
the best way" to conduct the negotiations "would be to talk it (each item 'as it
came up') out with the Union." In the main, where tentative agreement was
reached on various articles, that result was achieved only after recession by the
Union from its original position, and the accord was based upon modifications
offered by the Union's representatives themselves after Barthel had registered
objection to the given article in question. Barthel's contribution to such changes
usually consisted of objections to the substance or language of the Union's pro-
posal and of suggested changes in language, usually the addition or deletion of
some words. When such modifications were made, both Barthel and the Union's
representatives (either Campbell or Noell) would make the necessary changes
on their respective copies of the Union's proposed contract, so that both sides
had identical copies of the items tentatively agreed upon. There were occasions
when Barthel was asked specifically to make counterproposals and either declined
or failed to do so.
until complete agreement was reached . Actually, there is no fundamental difference in
interpretation . Campbell 's does not suggest that the tentative agreements were to have
legal finality , but merely that they were not to be regarded as open to further discussion.
Barthel 's interpretation is not inconsistent . The question is not whether the tentative
agreements reached were binding in a legal sense, but whether the use by the Respondent
of the tentative understandings and its action or inaction with respect to them reflects
an absence of good faith.
"Barthel agreed, under cross -examination , that he had not "at any time submitted any
proposals in writing ." However, it is fair inference that the policy lie adopted extended
to all counterproposals , oral or written . The closest he came to making a counterproposal
of substance occurred at the August 10-11 meeting . The Union' s proposed agreement
called for time and one-half for the sixth consecutive day of work and double time for
the seventh . Barthel declined to "consider double time for the seventh day" but "thought
personally Sunday work should be compensated for on double time" ( Noell ' s testimony).
However , at the August 24 meeting , he "retreated from that position" and declined to
"go along with that idea " ( Noell).
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the meeting of August 24, which did not begin until 11 a. m. because Barthel's
train was late, Noell proposed to Barthel that the Union would withdraw its
request for paid holidays and vacations if he would agree to payment of over-
time for hours exceeding eight per day. Barthel studied the matter for almost
a half hour and said he wished to consult his lawyer about it. He spent some
time in trying several times to reach the Respondent's Chicago counsel, finally
did so, and then rejected the Union's proposal. Noell then expressed dissatis-
faction with the slow rate of progress on the vital issues of the agreement and
proposed that the negotiators call in a Federal conciliator who had previously
informed Noell that he would be available on the following day. Barthel "seemed
to be quite distressed" at the suggestion and said he would have to call his attor-
ney. He did so, and then without telling Noell what position the attorney had
taken, he informed the Union's representatives that he could not continue with
the conference the next day as he had to leave to attend to some business.
Noell "insisted" that they remain "in session and try to resolve these issues with
every assistance we might be able to get" from the conciliator. He also requested
Barthel on several occasions to summon his attorney to the conferences, but
Barthel declined, stating that the attorney was not available.33 The meeting
adjourned at 4: 30 p. in. in accordance with Barthel's wishes.
Subsequently, the Union again requested the assistance of a Federal conciliator,
Ethen A. Walker, asking him "to arrange the earliest possible conference."
Walker communicated with Barthel and arranged a meeting for September 9.
The parties met on September 9, with Walker in attendance, and on this occasion
Barthel remained for another meeting on the following day. The Union again
voiced dissatisfaction with Barthel's practice of confining the meetings to short
periods and requested him to arrange to have other representatives of the firm
attend the negotiations. Barthel declined to do so, stating that he was authorized
"to sign any agreement that we worked out."
No progress of any substance was made at the September 9-10 meetings. Late
in the afternoon of September 10, Barthel stated that "it would be impossible for
him to remain away from the Company's business longer, and that the conferences
would have to be recessed until some later date." The meeting was thereupon
adjourned.
During the adjournment discussion on September 10, Walker asked Barthel
whether he would be willing, upon his return to Chicago, to reduce to writing
the articles upon which tentative agreement had been reached, and if he would
submit written counterproposals on the matters to which he had declined to
agree. Barthel stated that he would make "every effort to comply with his
request and bring back such a document at the next conference." Upon his
return to Chicago, Barthel discussed Walker's proposal with the Respondent's
counsel and its president in Chicago, and they advised him not to comply.
Barthel did not submit at the next meeting or at any other time a draft of the
articles tentatively agreed to or of any counterproposals.
Tentative arrangements were made at the September 10 conference for a
meeting during the week of September 21, Barthel stating that he would tele-
phone later and fix a definite date. However, Barthel later called Walker and
stated that he would be unable to attend during the week of September 21, and
suggested October 19. The parties met with Walker on October 19. The con-
ciliator asked Barthel if he had brought the draft which the latter had stated at
the September 10 meeting, he would make "every effort" to prepare for the next
33 There is undisputed evidence that Barthel called his attorney "even . . . when ques-
tions would arise on negotiating procedure" (Noell).
LLOYD A. FRY ROOFING COMPANY 1249
conference . Barthel stated that he had not , and that "he had not found time to
give it any attention," although it is clear from testimony Barthel gave, under
cross-examination , that the Respondent had resolved not to submit such a draft.
The October 19 meeting was continued into October 20. No progress of any
substance was made on the articles still in dispute. The Union withdrew its
request for premium and overtime pay, except for overtime for weekly hours
over 40. Barthel agreed to the weekly overtime provision. (The Respondent is
required to pay such overtime under the Fair Labor Standards Act.) Barthel
was requested to submit counterproposals but declined to do so. After the dis-
puted articles had been discussed at length, the Union's committee informed
Barthel, Walker, and the committee went through each of the articles upon which
tentative agreement had been reached to the form of a contract and to submit
such a proposed agreement to its membership. Before the close of the meeting,
Barthel, Walker and the committee went through each of the articles upon which
tentative agreement had been reached in order to assure conformity. The
parties found that their copies of the agreed articles were worded identically.
Barthel "indicated" that he would "be agreeable" to the signing of a contract
consisting of the tentatively agreed articles "after his attorney had looked at it
from a legal standpoint." According to Campbell, Walker told the Union's com-
mittee that Barthel had told the conciliator that he would agree to sign a
contract embodying those provisions, provided the Union would agree to include
a so-called management clause 3` The negotiators discussed the proposed clause
"to some extent and later agreed to include it" in the revised contract. Barthel
requested the committee to inform him promptly of the membership's action, and
the meeting was then adjourned without date.
Subsequently, the Union reduced the agreed articles in the identical language
of the tentative agreements to contract form, including the management clause,
and deleting all the items upon which no agreement had been reached, and sub-
mitted the proposed agreement to its local membership which, by ballot, rejected
the proposal and directed the committee to resume negotiations "in an effort to
negotiate a wage increase and some form of union security" and check-off."
The membership also voted to strike on November 22, or some future date to be
fixed by the committee, if the resumed negotiations failed to result in a "working
agreement" before November 22.
Campbell advised Walker of the membership's action and requested him to
arrange with Barthel for additional conferences. Walker was called out of
town on other matters and was replaced by another conciliator, C. T. Emory.
Emory arranged a meeting with Barthel for November 19. A copy of the pro-
posed agreement, as rejected by the membership, was given to Barthel at the
November 19 meeting. Both he and Emory were informed that the Union's
proposal consisted of the agreed articles as set forth in the rejected agreement,
plus provisions for a wage increase, union security, and a check-off. It was indi-
cated to Barthel that all the other articles which the Respondent had found unac-
ceptable had been dropped by the Union. Barthel declined to agree to the
Union's proposals for an increase, a union shop, and a check-off and made no
84 Campbell ' s testimony as to what Walker told him is hearsay , but the Respondent's
counsel offered no objection to this part of Campbell 's narrative . Moreover, Barthel
entered no denial of his alleged statement to Walker , conceding , in fact , that Campbell's
and Noell ' s testimony as to "general matters" was substantially correct ( with one minor
exception not relevant here).
"At an election duly conducted by the Board , a majority of the employees voted to
authorize the Union to enter into a union shop agreement with the Respondent. The
Board , certified the results of the election on August 12, 1948. See Case No . 16-UA-219.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counterproposals. The Union's committee decided to resubmit the matter to
the local membership and to inform it of the lack of progress on the three matters
to which the Company refused to agree. Campbell requested Barthel to make
a comparison of the proposed form of contract with his notes in order to verify
the fact that it accurately set forth the tentative agreements previously reached.
Barthel stated that "time would not permit him to go through this document,
that it appeared to be what we had reached an agreement (on) and that he
would take it back to his attorney and get his O. K. on him signing this contract
with the union." The meeting thereupon adjourned without date.
Shortly thereafter, the committee reported to the local membership its "inabil-
ity to obtain further concessions from the Company" and asked for instructions.
The members discussed the matter and, by ballot, voted to withdraw their previous
resolution to strike and to accept the proposed contract, which it had previously
rejected, "as a working agreement between the parties."
.Campbell informed Barthel by wire, dated November 23, of the employees' ac-
tion, stating that they had "voted to withdraw strike action and accept the
agreement as agreed upon between Company and Union," and requesting that he
forward "the necessary copies (of the revised proposed agreement) for execu-
tion." - Barthel responded by return mail. The material portion of his letter
follows :
I don't understand what you mean by "the agreement as agreed upon
between the Company and the Union."
When I left Tulsa last week, I understood that the Union had rejected
the Company's offers and that there would be a strike. Now you say there
won't be a strike and you talk about an agreement agreed upon between
Company and Union, but what agreement are you talking about? I don't
remember an agreement ever having been agreed upon between Company and
Union.
Just what do you mean, and what is it all about? Please let me know.
There was a further exchange of correspondence between Campbell and Barthel,
summarizing their respective positions. A detailed review of the correspondence
is unnecessary here. It is sufficient to note that in Barthel's last letter, dated
December 10, 1948, he states, referring to a letter Campbell sent him on Novem-
ber 29:
Now you go on to say in your letter that you and I agreed that anything
we agreed upon tentatively during our conferences would be considered as
tentatively agreed to contingent upon our reaching a complete agreement.
But where I still fail to follow you is that all we ever did was discuss these
matters tentatively and never did come to a full agreement. So I still don't
understand what you meant when. you said agreement agreed to between
Company and Union.
Please let me hear from you.
The Union did not respond to Barthel's letter, and the negotiations have not
been resumed.
Upon a consideration of the whole record, the Examiner has concluded that the
Respondent did not bargain in good faith. The Respondent's evidence suggests
that its good faith is demonstrated by the fact that it met with the Union, engaged
in extended discussions concerning the Union's proposals, and reached tentative
agreements on many articles (Barthel's letter of December 10 inconsistently ap-
LLOYD A. FRY ROOFING COMPANY 1251
pears to-deny such tentative agreements). However, discussions are'without
meaning if the mind of one of the parties is "hermetically sealed" 3° to the view-
point of the other on the vital issues in dispute, and the fact that meetings are
held and extensive discussions are undertaken is not a conclusive measure of
motive which should be appraised in the light of the whole "congeries of facts" 37
revealed by the record. That the Respondent's mind was "hermetically sealed"
is manifested by the whole course of the negotiations from the Company's initial
reaction to the Union's request for a conference to Barthel's letter of December 10.
First, the evidence demonstrates an initial reluctance to enter into negotiations
altogether. The Union's first two communications were ignored (the letter of
May 3 and the wire of May 19), despite the plain urgency suggested by the tele-
gram. It was not until after Campbell's telephone call of June 3 that the Re-
spondent manifested some reaction to Campbell's persistence. While the Re-
spondent's proof suggests that the delay was prompted by the fact that the Com-
pany had received no "official notification" of the election results, and there is
evidence that the Company on June 11 mailed to the Board an inquiry concern-
ing the "of vial notification," the suggested justification has a specious character
in the light of the evidence as a whole. It does not explain the Respondent's
failure to send even an acknowledgment to the Union of the latter's first letter
and its telegram. Moreover, the Company was fully aware of the Union's repre-
sentative status immediately after the election. The Respondent did not chal-
lenge the election results, and no good reason appears why it attached such im-
portance to the "official notification." Significantly, it made no effort to secure
a copy of the certification until after Campbell communicated with it for the third
time, plainly demonstrating that he intended to pursue the matter. In the face
of the other evidence of delay and circumlocution by the Company, the tendered
justification for not acting responsively to the Union's initial requests for bar-
gaining bespeaks a greater regard by the Respondent for surface punctilio than
for the statutory mandate to bargain collectively with its employees' duly chosen
representative. Although it is true that arrangements for a bargaining date
were made soon after he Respondent received an "official" copy of the certification,
it is not without significance that it requested the Board to send it a copy of the
certification and agreed to meet the Union's representatives only after the Com-
pany received word that its Stroud employees contemplated going on strike.
Second, the Respondent obviously took a somewhat casual approach toward its
obligation. Meetings were usually short and were subordinated to other de-
mands upon the time of Barthel who is obviously a busy man with manifold
business operations. There is no evidence that the Respondent, despite the rep-
resentations made by the Union, did anything to facilitate an early and success-
ful completion of the negotiations ; in fact, the proof is that the Respondent's
casual approach to them delayed and impeded the collective bargaining process.
The Union's urgent requests that Barthel arrange for other representation to
speed the negotiations went unheeded, as did its suggestion that the Company's
counsel attend the conferences in order to meet Barthel's asserted need to con-
sult him from time to time. In the light of the whole setting, Barthel's refusal
31 Great Southern Trucking Company v. N. L. R. B., 127 F. 2d 180, 186 (C. A. 4),
certiorari denied 317 U. S. 652. See also N. L. R. B. v. Montgomery Ward and Co.,
133 F. 2d 676 (C. A. 9) ; N. L. R. B. v. George P. Pilling and Son Co., 119 F. 2d 32 (C. A.
3) ; N. L. R. B. v. American Creosoting Co., 139 F. 2d 193 (C. A. 6), certiorari denied.
321 U. S. 797.
37 Great Southern Trucking Company v. N. L. R. B., supra.
857829-50-vol. 85-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to correct conditions which were manifestly hampering the negotiations suggests
a policy of circumlocution to deflect the Union's requests for agreement.
Third, the deliberately adopted policy of not making counterproposals pro-
vides additional evidence of an intention not to reach an agreement. It is true
that there is nothing in the Act requiring that counterproposals be made, and
it is fundamental that the statute does not require that an agreement be reached.
However, at least in particular situations, where a counterproposal "is asked
for it ought to be made" (N. L. R. B. v. Montgomery Ward & Company, 133 F. 2d
676 (C. A. 9) ). And the fact that none was made here as a matter of deliberate
policy reflects a design not to negotiate with an open mind, particularly in the
light of the evidence that at the September 10 meeting, Barthel promised the
conciliator that he would make "every effort" to prepare a draft of the articles
agreed upon and of a counterproposal before the next meeting and returned on
October 19, over a month later, without such it draft, offering the excuse "that
he had not found time to give it any attention," although it is clear from Barthel's
cross-examination that the real reason was not a lack of time, but that he, the
Respondent's president and its counsel had decided between September 10 and
October 19 not to submit such a draft.
Fourth, perhaps the most significant evidence of the Respondent's bad faith
is to be found in the proof relating to the tentative agreements. The evidence
is undisputed that both at the October 20 and November 19 meetings Barthel had
stated in effect that he would be willing to sign an agreement consisting of the
articles upon which a tentative accord had been reached, "after his attorney had
looked at it from a legal aspect." It is also undisputed that at the meeting of
November 19, Campbell told Barthel that the revised proposal (containing the
tentative agreements and the management clause) would be resubmitted to the
membership and that Barthel stated that he would take the agreement "back to
his attorney and get his O. K. on him signing this contract," thus indicating that
the Respondent would sign the agreement, upon its approval by counsel, if the
Union's membership voted to accept the agreement. Yet, when confronted in
Campbell's wire of November 23 with the actual request that the Respondent
sign the revised contract, Barthel's response on November 23 was to question
the fact that an agreement had been reached, asking "what agreement are you
talking about?" and injecting an irrelevant note to the effect that when he had
left Tulsa he "understood that the Union had rejected the Company's offers" "
(the Company had never made an offer unless Barthel's previously expressed will-
ingness to sign can be considered such) and that there would be a strike. Now,
it is quite plain "what agreement (Campbell was) talking about." He was not
referring to a completed agreement in the legal sense (although it is clear that
an agreement had been reached contingent upon approval by the membership
and the Respondent's counsel, assuming the sincerity of Barthel's commitments).
He was referring to the revised agreement which Barthel had expressed a will-
ingness to sign after clearance with counsel. That should have been evident
to Barthel, but he undertook instead to reassert a punctilious scrutiny of Camp-
bell's language, manifesting a contrived innocence of any commitment to sign
an agreement after its clearance by him with his counsel and by the Union with
its local membership. His reference to his understanding that there was to be
a strike reflects an intention to dodge the issue presented by Campbell's wire, for
11 Barthel ' s reference to the "Company ' s offers" furnishes additional confirmation of the
-fact that he had agreed (at least contingent upon legal approval ) to sign the revised
agreement.
LLOYD A. FRY ROOFING COMPANY 1253
the evidence plainly establishes that the November 19 meeting broke up with the
understanding that the Union's committee would resubmit the revised agreement
to its membership (thus necessitating a reconsideration of the question of a
strike) and that if both the membership and Respondent's Chicago counsel ap-
proved the proposed agreement, it would be signed and there would be no strike.39
Barthel's letter of December 10 is equally evasive of the actual issue confronting
him-whether to sign or refuse to do so. There, by strong implication, if not
expressly, be takes exception to Campbell's statement that it had been agreed at
the conferences that agreement upon various articles would be "considered as
tentatively agreed to contingent upon our reaching a complete agreement." The
fact is that Barthel himself testified at the hearing that he had had such an
understanding with the Union's committee.
Barthel's letters of November 23 and December 10 profess an innocence of his
previous commitments which is at variance with the facts. Together with the
Respondent's antecedent course of conduct, they demonstrate a design to avoid
reaching an agreement. After the Union had stripped its original proposal of its
"marrow," '0 reducing its demands to those to which Barthel would agree and,
in fact, tentatively agreed to, and confronted the Respondent with the circum-
stance that the parties stood on the threshold of agreement, the Company de-
liberately chose not to agree, ignoring what were at least moral commitments by
Barthel,' and chose, instead, to fence with the Union and to evade the issue of
signing the agreement, thus manifesting to the undersigned that it never intended
to reach an agreement with the Union and that it did not bargain in good faith.
The Examiner finds that, although requested to do so by the Union, the Re-
spondent on or about May 4, 1948, and at all times thereafter, including July 12,
August 10, August 11, August 24, September 9, September 10, October 19, October
20, November 19, November 23, and December 10, all in 1948, failed and refused
to bargain in good faith with the Union, the duly designated representative of the
Respondent's employees in an appropriate unit at its Stroud plant, concerning
rates of pay, wages, hours of employment, and other conditions of employment of
the said employees. It is also found that the Respondent thus violated Section
8 (a) (1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM MERCE
The activities of the Respondent set forth in Section III above, occurring in
connection with the operations of the Respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
39 Barthel testified that he was told on November 19 that a strike vote had been taken.
However, he also stated that he had been informed at the October 19 conference that there
was to be a strike. The implication of his testimony, as well as the express statement of
his letter of November 23, is that he left the meeting of November 19 with the under-
standing "that there was to be a strike." However, the fact that it is undenied that
Campbell informed Barthel that the revised proposal would be resubmitted to the mem-
bership and that Barthel stated that he would seek counsel's approval of the proposed.
contract, and the circumstance that Barthel at the last meeting admittedly was given a
copy of the revised agreement for his study and took it hack to Chicago with him, all
militate against the conclusion that he left Tulsa with the certain understanding that
there was to be a strike. If anything, the evidence demonstrates that lie left the last
meeting with the understanding that the question of a strike was to be reconsidered, and
that he would be expected by the Union to sign the agreement and that there would be no
strike if the membership and his counsel approved the agreement.
4° Matter of Twin City Milk Producers Association , 61 N. L. R. B. 69.
41 There is no evidence that Barthel ever submitted the revised agreement to counsel,
nor that the Respondent 's attorney took any exception to its terms.
I
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. TIIE REMEDY
In the opinion of the Examiner, the evidence reveals an underlying opposi-
tion by the Respondent to the policies and objectives of the Act. The undersigned
finds that the unfair labor practices disclosed by the record are closely related
to other unfair labor practices. proscribed by the statute, and that a danger of
their commission in the future is to be anticipated from the conduct of the
Respondent in the past. In order to make effective the interdependent guarantees
of Section 7, it is necessary, therefore, that the undersigned recommend to the
Board that its order be made coextensive with the threat of future disregard
by the Respondent of its statutory obligations.
Having found that the Respondent has engaged in unfair labor practices vio-
lative of Section 8 (a) (1), (3), and (5) of the Act, the Examiner will recom-
mend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent has discriminatorily discharged Charles
B. Cornett, the Examiner will recommend that the Respondent offer the said
Charles B. Cornett immediate and full reinstatement to his former or sub-
stantially equivalent position 42 without prejudice to his seniority and other rights
and privileges and to make him whole for any loss of pay he may have suffered,
by reason of the Respondent's discrimination against him, by payment to him
of a suin of money equal to the amount which he would normally have earned
as wages from March 19, 1948, to the date of the offer of reinstatement, less
his net earnings during such period 43
Having found that the Respondent has failed and refused to bargain in good
faith collectively with the Union, as the exclusive representative of its employees
in an appropriate unit, and, since such failure and refusal constitute a refusal
to bargain collectively within the meaning of the Act, the Examiner will recom-
mend that the Respondent, upon request, bargain collectively with the Union as
the representative of such employees, with respect to their rates of pay, wages,
hours of employment, and other conditions of employment, and, if an agreement
is reached, to embody its terms in a signed agreement.
Having found that the Respondent has interfered with, restrained, and coerced
its employees, as described above in Section III of this report, the Examiner
will recommend that the Respondent be directed to cease and desist from inter-
fering with, restraining, or coercing its employees, in any manner, in the exercise
of their right to self-organization, to form, join, or assist labor organizations, to
join or assist the Oil Workers International Union, CIO, to bargain collectively
through representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8 (a) (3) of the Act, as guaranteed by
Section 7 thereof.
42 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827, 17 L. L. R. M. 255.
43 Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 2 L. L. R. M. 483.
LLOYD A. FRY ROOFING COMPANY 1255
Upon the basis of the foregoing findings of fact and of the entire record in this
proceeding, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All of the Respondent's production and maintenance employees at its plant
in Stroud, Oklahoma, excluding office and clerical employees and all supervisors,
as heretofore determined by the Board, constitute a unit appropriate for the
purpose of collective bargaining, within the meaning of Section 9 (b) of
the Act.
3. Oil Workers International Union, CIO, was, on April 17, 1948, and at all
times thereafter has been, the exclusive representative of all the employees in
the aforesaid appropriate unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By failing and refusing on various occasions during the period from and
after May 4, 1948, to bargain collectively with Oil Workers International Union,
CIO, as the exclusive representative of its employees in the appropriate unit,
the Respondent has engaged in, and is engaging in, unfair labor practices, within
the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the tenure of employment of Charles B.
Cornett, the Respondent discouraged membership in Oil Workers International
Union, CIO, a labor organization within the meaning of the Act, in violation of
Section 8 (a) (3) of the said Act.
6. By interfering with, restraining, and coercing its said employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Respondent has
engaged in, and is en ;aging in, unfair labor practices, within the meaning of
Section 8 (a) (1).
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the Examiner recommends that Lloyd A. Fry
Roofing Company of Stroud, Oklahoma, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging membership of its employees in Oil Workers International
Union, CIO, or any other labor organization, by discriminatorily discharging its
employees or in any other manner discriminating against them in regard to their
tenure or any other term or condition of employment.
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right of self-organization, to form, join, or assist labor organi-
zations, to join or assist Oil Workers International Union, CIO, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the Act,
as guaranteed in Section 7 thereof.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Refusing to bargain collectively with Oil Workers International Union,
CIO, as the exclusive bargaining representative of all of the Respondent's pro-
duction and maintenance employees at its Stroud, Oklahoma, plant, exclusive
of office and clerical employees and all supervisors.
2. Take the following affirmative action which the Examiner finds will effectuate
the policies of the Act:
(a) Offer to Charles B. Cornett immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay he may have
suffered, by reason of the Respondent's discrimination against him, by payment
to him of a sum of money equal to that which he normally would have earned as
wages from March 19, 1948, the date of the Respondent's discrimination against
him, to the date of the offer of reinstatement, less his net earnings, if any, earned
by him during such period.
(b) Upon request, bargain collectively with Oil Workers International Union,
CIO, as the exclusive representative of the employees in the appropriate unit
described above, with respect to their rates of pay, wages, hours of employment,
and other conditions of employment, and, if an agreement is reached, to embody
it in a signed agreement.
(c) Post at its plant in Stroud, Oklahoma, copies of the notice attached to this
Intermediate Report marked "Appendix A." Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after being signed
by the Respondent's representative, be posted by the Respondent, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations- Board issue an order requiring the Respondent to
take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party filing the same shall serve a copy
thereof upon each of the other parties. Statements of exceptions and briefs
shall designate by precise citation the portions of the record relied upon and
shall be legibly printed or mimeographed, and if mimeographed shall be double-
spaced. Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.85. As further provided in
LLOYD A. FRY ROOFING COMPANY 1257
said Section 203.46 , should any party desire permission to argue orally before
the Board , request therefor must be made in writing to the Board within ten
(10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations and recom-
mended order herein contained shall , as provided in Section 203.48 of said
Rules and Regulations be adopted by the Board and become its findings, con-
clusions , and order , and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington , D. C., this 28th day of June 1949.
HERMAN MARX,
Trial Examiner.
APPENDIX "A"
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership by our employees in OIL WORKERS
INTERNATIONAL UNION, CIO, or in any other labor organization , by dis-
criminatorily discharging or in any other manner discriminating against
them in regard to their tenure or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form, join, or
assist labor organizations , to join or assist OIL WORKERS INTERNATIONAL
UNION, CIO , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any or
all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as condition
of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed
in Section 7 thereof.
WE WILL BARGAIN collectively with OIL WORKERS INTERNATIONAL UNION,
CIO, as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay , wages, hours of employment,
or other conditions of employment , and if an agreement is reached , embody
it in a signed agreement. The bargaining unit is:
All our production and maintenance employees at our plant in Stroud,
Oklahoma , exclusive of office and clerical employees and all supervisors,
as heretofore determined by the Board.
WE WILL OFFER to Charles B. Cornett immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of discrimination.
LLOYD A. FRY ROOFING COMPANY,
Employer.
By ------------------------------------
Dated-------------------- ( Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
0