Lock Joint Pipe Co.

National Labor Relations Board - Board Decisions

Mar 28, 1963

141 N.L.R.B. 943 (N.L.R.B. 1963)

LOCK JOINT PIPE COMPANY 943
Lock Joint Pipe Company and United Cement, Lime and Gypsum
Workers International Union, AFL-CIO, Local 410. Cases
Nos. 16-CA-1533, 16-CA.-1616, and 16-CA-1633. March 28,1963
DECISION AND ORDER
On September 5, 1962, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the amended consolidated complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent with
its Decision and Order herein.
This case arises out of an amended consolidated complaint. The
complaint alleges that Respondent violated a settlement agreement by
unfair labor practices committed after the approval of such settlement
in Case No. 16-CA-1533 by the Regional Director for the Sixteenth
Region ; and that certain presettlement conduct and certain post-
settlement conduct constitute unremedied violations of the Act.
Postsettlement Unfair Labor Practices Section 8(a) (1)
1. The Trial Examiner found, and the record shows, that about
January 1, 1962, Supervisor Stuart Boldry interrogated employee
Rekie about when the Union was going to hold its next union member-
ship meeting; that on January 26, 1962, and some 2 weeks earlier,
Supervisor Higgins interrogated employee Steele concerning the
progress of the Union and whether the Union was going to call a strike ;
that a few days after January 26, 1962, Supervisor Caldwell asked
Steele about the number of union adherents; and that on January 29,
Supervisor Boldry, commenting that Steele did not get to bed early on
January 26, questioned Steele about his asserted sickness on the evening
of January 26 when a union meeting was held at which Steele was
present, signed a union card, and ran for a union office. The Trial
Examiner concluded, however, that these acts were trivial and isolated,
141 NLRB No. 82.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wholly unrelated to the principal issues of the case, and insufficient
to support a finding of a violation of Section 8(a) (1) of the Act.
In addition to the facts found above, it appears that on the same
occasion, when Supervisor Caldwell interrogated Steele about the
number of union adherents, Caldwell told Steele that it would be bad
for the workers to strike because, if they struck, they would be dis-
charged. Also, when employee Byrd was soliciting union memberships
on his own time, just before his layoff, which we find hereinafter to
have been discriminatory, he was observed by Supervisor Kinnard,
who asked Byrd if he was engaged in solicitation of union member-
ships. The foregoing statement by Caldwell to Steele was a threat of
reprisal for engaging in protected activity, and the interrogation of
Byrd by Kinnard culminated in Byrd's unlawful layoff.
We do not agree with the Trial Examiner that these acts by Respond=
ent were isolated, trivial in nature, and wholly unrelated to other
unfair labor practices in this case. On the contrary, it is clear, and
we find, that all such conduct was committed in a context of the other
unfair labor practices found herein and that such conduct interfered
with, restrained, and coerced employees in the exercise of their rights.
guaranteed by Section 7 of the Act, in violation of Section 8(a) (1)
of the Act.
Section 8(a),(3)
2. The Trial Examiner concluded that the General Counsel failed to
prove that employees Donald May Steele was discharged because of his
union activity. Although the Trial Examiner found that the assigned
reason for Steele's discharge was suspicious, he found that Respondent
was not aware that Steele had joined the Union on January 26. Thus
the Trial Examiner found that Steele's discharge, 2 weeks after
January 26, was not unlawful. We disagree and find that Steele's
discharge was discriminatory and violated Section 8(a) (3) and (1)
of the Act.
The evidence shows that Steele was the target of interrogation and,
threats about union activities by Supervisors Biggins, Caldwell, and
Baldry. We are finding, herein, that such interrogation and threats,
together with other conduct by Respondent, were violative of Sec-
tion 8(a) (1) of the Act. The evidence also shows that Steele was
nominated for the office of secretary-treasurer of the Union at the
meeting held on January 28, 1962, at which time Steele signed a union
card. The record further supports an inference, based upon Boldry's.
comments to Steele about that meeting, supra, that Boldry was aware of
Steele's participation therein. Also relevant is the fact that at the
time of his discharge, Steele was told by Boldry that his union activity
possibly had something to do with his discharge and, as found by the
Trial Examiner, the reason advanced for Steele's discharge is plainly
LOCK JOINT PIPE COMPANY 945
unconvincing. Upon the entire record, we conclude that Respondent
had knowledge of Steele's union activity prior to the discharge and fur-
ther that Respondent's asserted reason for Steele's discharge was a
pretext to cloak the discriminatory reason for such discharge, i.e.,
Steele's union activity.
3. The Trial Examiner found that Respondent laid off employee
Floyd Byrd on March 16, 1962, because Byrd punched in late for work,
and not because of Byrd's solicitation on behalf of the Union. We
disagree.
As found above, Supervisor Kinnard interrogated Byrd on March 15,
1962, just prior to Byrd's starting time for work, as to whether Byrd
was soliciting union memberships then and received an answer in the
affirmative. Kinnard followed Byrd as he punched in and observed
that he had punched in 3 minutes late. That afternoon Kinnard called
the employees together and announced he was enforcing plant rules
and the employees should be at their place of work on time. The next
morning, Kinnard gave Byrd a 6-day layoff for being late the previous
morning and for "continuous verbal warnings."
The evidence shows that the only verbal warnings to Byrd were two
Or three admonitions that he wear his safety glasses. Further, it is
undisputed that it was the practice of Respondent at the time Byrd
punched in late not to discipline employees until they were at least
6 minutes late: Under the circumstances, it is clear, and we find, as
in the case of Steele, that Byrd's asserted derelictions were used by
Respondent as a pretext to cloak Respondent's real motivation in lay-
ing off Byrd, namely, Byrd's union activities, and that by such lay-
off Respondent violated Section 8(a) (3) and (1) of the Act.
Section 8(a) (5)
4. We disagree with the Trial Examiner's finding-that Respondent
did not violate Section 8 (a) (5) of the Act when it refused the Union's
request to furnish the Union with data on job classifications and pay
rates.
The evidence is uncontradicted that, at the first negotiating meet-
ing on November 16, 1961, the Union asked Respondent to "prepare
[for the Union] a list of classifications and the present wage rates
being paid. . . ." Respondent refused. The request was reiterated
at the two following meetings. At the fourth meeting, on January 15,
1962, Respondent supplied the Union with a list of job classifications,
wage rates, and the numbers of employees in each classification. A
dispute ensued as to whether the wage rates and job classifications
were accurate and complete. Respondent refused to furnish any fur-
ther information, including a requested further breakdown of the
laborer classification. The stated reason for such refusal was that
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had provided the Union with all requested information.
From the evidence, as a whole, it is clear, and we find, that the list
supplied the Union was a list of minimum rather than actual rates
paid for each job. Thus, Johnson, one of Respondent's negotia-
tors, admitted that the rates contained in Respondent's contract pro-
posals to the Union were minimum, and not actual, rates; and it ap-
pears that the rates in Respondent's proposals were identical to the
rates contained in the list furnished the Union. Furthermore, Brock,
one of the Union's negotiators, attributed to another company negotia-
tor, Miller, the statement that the rates on the list were only minimum
rates. Miller was not called to testify and no explanation was given
for the failure of Respondent to call him. Respondent thus refused
and failed to furnish the Union with the actual rate paid for each job.
Such refusal was clearly unlawful.
It is also clear, and we find, that the failure of Respondent to honor
the request of the Union for a further breakdown of the laborer classi-
fication was not because of an honest belief that the Union was not re-
questing any further information pertaining to this classification, but
was rather because of Respondent's adamant position that it had given
the Union the information originally requested and it was not legally
obligated to break down such information any further. It is undis-
puted that the Union questioned Johnson about the job duties of em-
ployees in the classification entitled "Laborers (After probationary
period)." This classification comprised 78 out of a total of 173 em-
ployees in all jobs listed. It is also undisputed that the Union "sug-
gested a further breakrown of the laborers" into either their actual
job duties or into classifications of "Labor first class, second class,
etc."; that Respondent never furnished any further breakdown, say-
ing "who could say what's labor first class, second class, etc." Consid-
ering the large number of employees in this classification and the
Union's questioning the completeness of the information about the
classification, it must have been clear to Respondent that the Union
wanted a more meaningful breakdown of job duties and rates. As the
classification bore only a minimum rate, actual rates could have varied
with different job duties in the classification. The Union was entitled
to this information which was pertinent to bargaining on a contract.
We reject the Trial Examiner's conclusion that Respondent was not
obligated to furnish such further information because of a lack of
sufficient justification for this demand.' We find that Respondent's
failure to furnish, upon request, such further information concerning
the laborer classification was unlawful?
' Peyton Packing Company, Inc., 129 NLRB 1358, 1362.
Upon the present record, we find it unnecessary to pass upon the nature of the strike
which commenced on March 19, 1962.
LOCK JOINT PIPE COMPANY
Presettlement Unfair Labor Practices
947
5. The charge in Case No. 16-CA-1533, which was settled by agree-
ment of the parties, charged violations of Section 8(a) (1), including
a specific charge of unlawful interrogation, threats, and promises of
benefit. In view of our findings, supra, that, subsequent to the execu-
tion of the settlement agreement in Case No. 16-CA-1533, Respondent
violated Section 8(a) (1) and (3), engaging, among other things, in
unlawful interrogation and threats, we disagere with the Trial Ex-
aminer and, instead, approve and adopt the action of the Regional
Director in vacating and setting aside the provisions of the settlement
agreement in Case No. 16-CA-1533.3
The record shows the following presettlement violations by
Respondent
Safety Director Mose Arnette, on August 1, 1961, interrogated em-
ployee William T. Hart, Jr., concerning his opinions about the Union
and threatened Hart that, if the employees voted for the Union, it
would be a good way for everyone to lose his job. Arnette, during the
middle of August 1961, similarly interrogated employee Herman
Wilson about the Union and also inquired whether he had signed a
union card or attended a union meeting. Supervisor Don Kinnard,
on August 23, 1961, interrogated employee Robert Braswellas to who
had union cards and warned Braswell that he would be discharged if
he had cards and that he would get into trouble if he did not leave the
cards at home. Finally, Supervisor Kinnard, on August 30, 1961, in-
quired of employee Walter Brown about the Union, stated that em-
ployees would make more money if they would keep out of the Union,
and suggesting that Brown talk to employees about dropping out of
the Union. We find that, by each of the above acts of interrogation
and threats and promise of benefit, Respondent interfered with, re-
strained, and coerced employees in their exercise of rights guaranteed
by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.
THE REMEDY
Having found that Respondent violated Section 8 (a) (1) of the Act,
we shall order it to cease and desist from engaging in such conduct in
the future. We shall also order Respondent, upon request, to furnish
the Union with the information to which it is entitled, to the extent
that such information has not heretofore been furnished.
The broad pattern of the violations found evinces a general hostility
on the Respondent's part to the principles of collective bargaining and
to the right of employees to engage in legitimate concerted activities
for purposes of organization or other mutual aid and protection. Ac-
s Angus Manufacturing Company, Inc., 123 NLRB 1919, footnote 2.
708-006-64-vol. 141----G l
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, in order to make the remedy coextensive with the threat of
future unfair labor practices, we shall issue a broad order enjoining all
forms of unlawful interference with rights guaranteed employees by
Section 7 of the Act 4
Having found that Respondent unlawfully discharged Donald Ray
Steele and unlawfully laid off Floyd Byrd and thereby violated
Section 8(a) (3) and (1) of the Act, we shall order that Respondent
offer Steele immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make Steele and Byrd whole for any
loss of earnings they may have suffered as a result of the discrimina-
tion against them, by payment to each of them of a sum of money equal
to the amount he would have earned from the date of the discrimina-
tion to the date of reinstatement or future offer of reinstatement,5
less earnings during said periods, to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, and shall include the payment of interest at the rate
of 6 percent to be computed in the manner set forth in Isis Plumbing
d Heating Co., 138 NLRB 716.6 We shall also order that Respondent
preserve and, upon request, make available to the Board or its agents,
for examination and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due and the
rights of employment under the terms of this Order.
CONCLUSIONS OF LAW
1. By threatening employees with reprisals for their union activity,
by promising employees benefits for refraining from union activity
and for soliciting other employees to refrain therefrom, and by coer-
cively interrogating employees regarding union activities, Lock Joint
Pipe Company has interfered with, restrained, and coerced employees
in the exericse of the rights guaranteed in Section 7 of the Act in
violation of Section 8 (a) (1) of the Act.
2. By discharging Donald Ray Steele on or about February 9,
1962, and by laying off Floyd Byrd on or about March 16, 1962, Lock
Joint Pipe Company has discriminated in regard to the hire and tenure
of employment of these employees, thereby discouraging membership
in United Cement, Lime and Gypsum Workers International Union,
AFL-CIO, Local 410, the labor organization herein, in violation of
Section 8(a) (3) and (1) of the Act.
4 Mooney Aircraft, Inc., 132 NLRB 1194, 1195.
6 A.P.W. Products Co., Inc. , 137 NLRB 25.
6 Member Rodgers , for the reasons set forth in his dissenting opinion in the Isis case,
would not award interest.
LOCK JOINT PIPE COMPANY 949
3. All production and maintenance employees of Respondent at
its Ada, Oklahoma, plant, including laboratory employees, firemen,
watchmen, storeroom clerks, and shipping clerks, exclusive of office
clerical employees, guards, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act.
4. The above labor organization was, on October 18, 1961, and at
all times since has been, the exclusive representative of all the em-
ployees in the above appropriate unit for the purposes of collective
bargaining within the meaning of Section 8 (a) (5) of the Act.
5. By refusing on and after November 16, 1962, to furnish to the
above labor organization, at the specific instance and request by said
organization, data relating to employee wages and job classifications,
and related matters, Lock Joint Pipe Company has engaged in and is
engaging in unfair labor practices within the meaning of Section
8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this 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, Lock Joint Pipe
Company, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to furnish information concerning wages and job
duties of employees to United Cement, Lime and Gypsum Workers
International Union, AFL-CIO, Local 410, as the representative of
all production and maintenance employees at its Ada, Oklahoma,
plant, including laboratory employees, firemen, watchmen, storeroom
clerks, and shipping clerks, exclusive of office clerical employees,
guards, professional employees, and supervisors as defined in the Act.
(b) Discouraging membership in United Cement, Lime and Gyp-
sum Workers International Union, AFL-CIO, Local 410, or in any
other labor organization of its employees, by discharging or laying off
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of
employment.
(c) Threatening employees with reprisals for their union activity
or promising them benefits for refraining therefrom and for soliciting
other employees to refrain therefrom.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Interrogating employees regarding union activities in a man-
ner constituting interference, restraint, or coercion in violation of
Section 8(a) (1).
(e) In any other manner interfering with, restraining, or coercing
employees in connection with their exercise of the right to self-
organization, to form labor organizations, to join or assist United
Cement, Lime and Gypsum Workers International Union, AFL-CIO,
Local 410, or any other organization, to bargain collectively through
:representatives of their own free choice, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all 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 em-
as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, furnish United Cement, Lime and Gypsum
Workers International Union, AFL-CIO, Local 410, with informa-
tion to which it is lawfully entitled, including information previously
requested to the extent that it has not been heretofore furnished.
(b) Offer to Donald Ray Steele immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him and
Floyd Byrd whole for any loss of earnngs each may have suffered by
reason of the discrimination against him in the manner set forth in
the section entitled "The Remedy" in this Decision and Order.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the rights of employment under the terms of this Order.
(d) Post at its place of business in Ada, Oklahoma, copies of the
attached notice marked "Appendix."' Copies of this notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
such places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing An Order."
LOCK JOINT PIPE COMPANY 951
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaints, insofar as they allege
that the Respondent violated the Act by conduct other than that
found to be violative herein, be, and they hereby are, dismissed.
APPENDIX
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, as amended, we hereby notify our employees that :
WE WILL, upon request, furnish United Cement, Lime and
Gypsum Workers International Union, AFL-CIO, Local 410,
as the exclusive representative of all our employees in the bar-
gaining unit defined below, information to which it is lawfully
entitled, including information previously requested to the extent
that it has not been heretofore furnished. The bargaining unit is :
All production and maintenance employees of Lock Joint
Pipe Company at its plant at Ada, Oklahoma, including
laboratory employees, firemen, watchmen, storeroom clerks,
and shipping clerks, exclusive of office clerical employees,
guards, professional employees, and supervisors as defined in
the Act.
WE WILL offer to Donald Ray Steele immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
make him and Floyd Byrd whole for any loss of earnings each
may have suffered by reason of the discrimination against them.
WE WILL NOT, by threatening employees with reprisal for their
union activity, promising them benefits for refraining from union
activity or soliciting others to do so, coercively interrogating em-
ployees regarding their union activities, discharging or laying
off any employees, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-organi-
zation, to join United Cement, Lime and Gypsum Workers Inter-
national Union, AFL-CIO, Local 410, or any other labor organi-
zation, or to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to the
extent that this right may be affected by a lawful agreement requiring
membership in a labor organization as a condition of employment.
LOCK JOINT PIPE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employees presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate with the Board's Regional Office, 110
West Fifth Street, For Worth, Texas, Telephone No. Edison 5-4211,
Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges duly filed by United Cement , Lime and Gypsum Workers
International Union, AFL-CIO, Local 410, herein called the Union , the General
Counsel of the National Labor Relations Board issued a complaint dated May 11,
1962, against Lock Joint Pipe Company, herein called the Respondent or the Com-
pany, alleging violations of Section 8(a)(1), (3 ), and (5 ) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq .), herein called the Act. The
answer of the Respondent admits certain allegations of the complaint but denies
the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before Trial Examiner Reeves R. Hilton at
Ada, Oklahoma, on June 19 and 20, 1962. All parties were represented at the
hearing and were afforded full opportunity to be heard , to introduce relevant evidence,
to present oral argument , and to file briefs with me. Briefs were filed by the General
Counsel and the Respondent about July 23, 1962.
Upon consideration of the entire record and the briefs of the parties , and upon
my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE COMPANY'S BUSINESS
The Company, a New Jersey corporation , has its principal office in East Orange,
New Jersey, and operates a plant at Ada, Oklahoma, where it is engaged in the
manufacture of concrete pressure pipe. During the 12-month period preceding the
issuance of the complaint the Company purchased parts and equipment valued in
excess of $50,000, which were shipped directly to it from suppliers located outside the
State of Oklahoma. I find the Company is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
LOCK JOINT PIPE COMPANY
III. THE UNFAIR LABOR PRACTICES
953
A. Preliminary statement
J. Harvey Johnson , project manager of the Ada plant operation , testified that, at
some unspecified date, the Company entered into an agreement with the Oklahoma
City Municipal Improvement Authority, herein called the Authority, to manufacture
concrete pipe to be use in the construction of a water pipe line from Atoka to Okla-
homa City. Thereafter, in February 1961 the Company began construction of a plant
in Ada, Oklahoma, and in June 1961 commenced manufacturing pipe in accordance
with the foregoing contract . The Company's entire operation in Ada was designed
and used exclusively for the Authority project. Johnson estimated the Company
would complete its contract with the Authority sometime during the first part of 1963,
at which time , according to present plans, the plant is to be dismantled and moved.
Apparently the Union initiated an organizational drive when the plant went into
production and about July 12, 1961, filed a representation petition which resulted
in a Board-directed election which was held on October 18, 1961 . The Union won
the election and on October 26, 1961, was certified as the exclusive bargaining
representative for all production and maintenance employees at the Ada, Oklahoma,
plant, including laboratory employees, firemen , watchmen , storeroom clerks, and
shipping clerks, exclusive of office clerical employees , guards, professional employees,
and supervisors as defined in the Act.
Meantime on August 23, 1961, the Union filed a charge , Case No. 16-CA-1533,
which was settled by the parties by a settlement agreement , approved by the Regional
Director on or about November 20, 1961, by which the Company agreed to post a
notice providing that it would refrain from interrogating its employees, from main-
taining or enforcing any rule , prohibiting employees from engaging in union solicita-
tion on company property during nonworking hours, and from in any manner interfer-
ing with, restraining , or coercing its employees in the exercise of their right to self-
organization or to refrain from such activities.
On February 13, 1962, the Union filed a second charge, Case No. 16-CA-1616,
which on March 22, 1962, resulted in the Regional Director vacating and setting aside
the provisions of the settlement agreement , except the provision relating to the
maintenance and enforcement of an invalid "no-solicitation" rule. On March 23,
1962, the Regional Director entered an order consolidating the cases and issued a
complaint against the Company alleging violations of Section 8(a)(1) and (3) of
the Act.
On March 23, 1962, the Union filed a third charge, Case No. 16-CA-1633. On
May 11, 1962, the Regional Director entered an amended order consolidating the
three cases and issued a complaint against the Company alleging violations of Section
8(a)(1), (3 ),and (5) of the Act.
B. The pleadings
The complaint alleges that on various dates in August 1961 , certain supervisory
employees of the Company ( 1) interrogated employees concerning their union mem-
bership and activities, (2) warned an employee to leave his union material home or he
would get in trouble, and ( 3) promised benefits to employees if they refrained from
bringing the Union into the plant and solicited these employees to encourage other
employees to drop the Union . As already stated the parties entered into a settlement
agreement covering these acts , which was subsequently set aside . The answer denies
the above allegations of the complaint.
The complaint further alleges that the Company ( 1) since October 5, 1961, has
unlawfully granted general wage increases ; ( 2) illegally interrogated employees in
January 1962; ( 3) maintained surveillance of a union meeting in January 1962;
(4) discriminatorily discharged Donald Ray Steele in February 1962; ( 5) discrimi-
natorily laid off Floyd Byrd for 1 week during March 1962; (6) has refused to bargain
with the Union in that (a) since November 16, 1961 , the Company has refused to
furnish data requested by the Union relating to wages and job classifications and
similar matters ; and. (b ) since February 21, 1962, has refused to notify or consult
with the Union on the granting of merit increases to employees ; I and (7) photo-
graphed activities of picketing employees about March 19, 1962 , when the em-
I At the outset of the hearing , without objection , I granted the General Counsel's oral
motion to amend his complaint by adding subparagraph (b) thereto.
954 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ployees were engaging in an unfair labor practice strike.2 The answer generally
denies the foregoing allegations of the complaint.
C. The issue
It is well settled that continuing violations of the Act will breach a settlement
agreement involving unfair labor practices and will justify the Regional Director
in vacating the agreement and in proceeding with a complaint which covers unlawful
conduct both before and after the agreement. (The Wallace Corporation v. N.L.R.B.,
323 U.S. 248, 253-255; International Brotherhood of Teamsters, etc., Local 554,
AFL-CIO (Clark Bros. Transfer Co. & Coffey's Transfer Co.) v. N.L.R.B., 262 F.
2d 456, 459-461 (C.A.D.C.); Peter Kiewit Sons' Co., 136 NLRB 119; Barker's East
Main Corporation, 136 NLRB 119; Baltimore Luggage Company, 126 NLRB 1204,
1208.) However, findings of unfair labor practices can properly be made on the
earlier conduct only where there is evidence of substantial unlawful conduct following
the settlement agreement, for evidence of isolated and minor incidents will not
justify the Board in going behind the agreement. (Wooster Brass Company, 80
NLRB 1633, 1635.) Here there is no serious problem regarding the effect of Section
10(b) upon the presettlement conduct for the Company does not plead that
section as an affirmative defense and in any event all the acts occurred within the
6-month period preceding the date of the filing of the second charge, except one act
of interrogation which is alleged to have taken place about August 7, 1961.3
Accordingly, the broad question presented is whether the General Counsel has
established the allegations of his complaint by a preponderance of all the evidence.
In resolving this question I shall consider separately the evidence concerning the two
periods.
D. Presettlement conduct
The Company does not contest the evidence adduced by the General Counsel show-
ing interrogations and threats in August 1961, for the reason that these acts occurred
prior to the election and have no bearing on subsequent bargaining negotiations be-
tween the Company and the Union. The evidence on this phase of the case may be
summarized as follows:
William T. Hart, Jr., was interviewed by Mose Arnette, safety director, about
August 1, 1961, shortly after his employment, and during the interview Arnette asked
what he thought of the Union. Hart said he knew nothing about the Union. Arnette,
in response to Hart's inquiry, stated that unions were of no benefit to individuals and
if the employees voted for the Union at this plant "it would be a good way for all
of us to lose our jobs."
Herman Wilson related that about the middle of August 1961, Arnette asked what
he thought of the Union and Wilson said he was not certain what was going on at
that time. Arnette then asked if he had signed a union card or attended a union
meeting and Wilson told him no.
Robert Braswell signed a union card and solicited other employees to join the
Union. About August 23, 1961, Braswell told foreman Don Kinnard the crew
wanted to meet for the purpose of signing up with the Union. Kinnard refused
Braswell's request and inquired who had the union cards. Braswell said he had them
whereupon Kinnard warned he better not have them, that he would be fired. Shortly
thereafter Kinnard asked Braswell where he kept the cards and he replied they were
in his car. Kinnard stated he better leave the cards at his home or he would get into
trouble.
Walter Brown testified that about August 30, 1961, Kinnard, after inquiring about
the Union, said the men would make more money by keeping out of the Union rather
than bringing it into the plant and suggested that Brown talk to the men about drop-
ping out of the Union.
It is undisputed that the Company granted a general wage increase on Septem-
ber 27, 1961, effective as of September 21, 1961. The General Counsel contends that
since the Company announced the wage increase the same day the Board issued its
order directing an election the increase was intended to interfere with and restrain
the employees in their selection of a bargaining representative in the forthcoming
election. Absent further explanation, I fail to see how unlawful motive may be
inferred from the bare fact that the date of the pay raise announcement and the
2 Without objection, I granted the General Counsel's motion to amend his complaint to
include the photographic activities.
s Another act alleged to have been committed about August 3, 1961, was amended to
read August 30, 1961.
LOCK JOINT PIPE COMPANY 955
Board's Order happen to coincide.4 In any event Johnson fully explained the cir-
cumstances under which the increase was granted, and his testimony in this respect is
undisputed. As related by Johnson, the Authority retained the right to fix minimum
wage rates for employees performing work under the contract and on September 26,
1961, he received a letter from the Authority establishing a new wage scale for vari-
ous classifications of employees. On September 27, the Company put the new wage
scale into effect, retroactive to September 21, and while it had some employees who
were not included in the classifications setup by the Authority, the Company granted
the increase to all its employees in order to maintain wage differentials between the
classifications. On September 27, the Company distributed letters to the employees
notifying them of the increase and the rate of the particular individual. In brief,
the letter stated that the Authority had prescribed a new wage scale under which
many employees would receive a raise of 10 cents an hour or more. The Company
believed it unfair to give a blanket increase to some, but not to all the employees, so
all employees who were not included in the new scale were being granted an increase
of 10 cents an hour. In these circumstances, I have no difficulty in finding the Com-
pany granted the general wage increase for valid reasons and neither the Union nor
the pending representative proceedings had any bearing on the Company's decision
in this respect.
E. Postsettlement conduct
The Refusal To Bargain
On October 30, 1961, Clyde G. Brock, International representative, sent a pro-
posed contract to the Company and thereafter, as stipulated by counsel, representa-
tives of the parties held negotiating meetings on November 16 and December 11 and
27, 1961; January 15, February 5 and 23, March 9, and May 2 and 18, 1962. Brock,
Orval Webber, union representative, and employee Gilbert M. Rekie were the prin-
cipal members of the Union's bargaining committee while Johnson and two other
persons represented the Company during the negotiations.
Here the refusal to bargain is based on the Company's refusal to furnish wage
data and on merit increases so, as to be expected, little time was devoted to negotia-
tions covering other bargainable subjects proposed and discussed by the parties. The
composite testimony of Brock, Rekie, and Johnson shows that the first meeting,
November 16, the Company submitted its counterproposal to the Union's contract
and the parties fully discussed the provisions of each agreement. Thereafter the
Company submitted three additional proposals at the sessions held on December 11,
January 15, and February 5, each of which was fully discussed, and as a consequence
the parties reached agreement on some, but not all, contract terms.
As set forth below the Union called a strike on March 19, 1962, which the General
Counsel claims was caused by the Company's unfair labor practices, and which was
still current at the time of the hearing.
The Alleged Refusal To Furnish Wage Data
Rekie testified that during the first three meetings Brock or Webber asked the
Company to prepare "a list of the job classifications and the present wage rates" and
the company representatives stated they did not believe this information was neces-
sary. They also expressed some doubt that the Company was required by law to
supply this information as asserted by Brock.
Brock stated he asked the Company for "job classifications and wage rates, which
they did not have in their proposal" 5 and its representatives stated this information
was not available at that time. In the discussions that followed the Company took
the position that the Union did not need this data because the plant was a temporary
operation and any pay raise agreed upon would be applicable to all employees and
negotiations on that subject would be conducted on an across-the-board basis.
Johnson conceded the Union requested information on "present rates and
classifications."
It is undisputed that on January 15, the date of the fourth meeting, the Company
gave the Union a written memorandum setting for 12 job classifications, the number
of employees in each classification, and their hourly rate (General Counsel's Exhibit
No. 3). The memorandum also shows that the Company had a group of seven
S I have been administratively informed that the Board's records indicate the Order was
issued and mailed to the parties on September 27, 1961. Obviously, the Company would
not have received the Order at its Ada plant the same day it was mailed.
5Phe Company's first proposal, Respondent's Exhibit No. 1, contains a basic minimum
rate of $1.35 an hour and minimum hourly rates for some 12 classifications.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men receiving $1.60 an hour whose job classifications were left blank (herein re-
ferred to as the seven unclassified men) and one additional man receiving $1.85 an
hour, whose classification was likewise blank. Johnson stated that the rates set forth
therein were those actually paid the employees with the exception of the two crane
operators, which were minimum rates.
Rekie said after examining the memorandum he pointed out that laboratory
workers were paid $1.70 an hour, not $1.60 as stated therein, where upon the Com-
pany corrected this error. Rekie stated that at this meeting, and others, Brock asked
about the 7 unclassified men and the company representatives replied they were
miscellaneous labor and Brock then commented that the memorandum contained a
"miscellaneous labor" classification showing 17 men in that category who were
receiving $1.50 an hour. Brock then asked about the one unclassified employee and
while the company representatives could not give his job at that time they advised
the Union at the next meeting that this man was employed as a carpenter. The
parties discussed the "laborers" classification and the Union took the position it
was "incredible" the Company would have 78 employees in this group; that it con-
sidered many of these laborers to be skilled workmen and if the Company could
not give their "actual classifications," then it should classify the men as "labor first
class, second class, etc." The company representatives queried, "Who would say
what's labor first class, second class, etc?" and never did give a breakdown on the
laborers. Although Rekie admitted he was not familiar with all types of work per-
formed by the laborers, he said some of the laborers painted, chipped out, and
patched the pipe. Concerning the crane operators, Brock stated he knew the two
operators were paid more than $2.50 an hour and the company representatives
replied that was the minimum rate for newly hired crane operators. Brock also
declared that the Company had granted many merit increases, so he wanted actual
rates for the classifications instead of the minimum rates set forth in the memoran-
dum. The company representatives answered that they did not have to furnish any
additional information.
Brock testified that when he inquired about the actual pay rate of the crane op-
erators the company representatives said they did not know the rate, that the mem-
orandum had been prepared sometime previously. He then asked what type of
work the seven unclassified men were doing and the company representatives replied
they did not know. Likewise, Brock asked about the additional unclassified man,
the carpenter, and the company representatives said they did not know what he was
doing. According to Brock the company representatives stated the Union did not
need this additional information since they were negotiating wage increases on an
across-the-board basis. Brock testified the Union requested a list of job classifications
and current wage rates at six or seven meetings. The General Counsel then asked
Brock (p. 198):
Q. And what was the position of the Company with respect to your request.
A. They contended that they had the right to give merit increases, and the
reason that they didn't want to tell us what each person was making out there
was because there had been some merit increase given, and we had discussions
that since the date of certification they were. supposed to take this up with the
Union before a merit increase could be given, but they didn't go along with
that. They thought they were right, according to what they said, and they
said they would continue to give the merit increases, and that they didn't have
to say anything to us about it.
Johnson testified the Union asked for a general wage increase of $1 in its proposed
contract, which it later reduced to 37 cents an hour, and he denied that the Union
ever requested negotiations on the basis of individual rates by individual job
classifications .8
As already stated, Johnson testified that the hourly rates contained in the mem-
orandum were the rates actually paid to the employees, with the exception of the two
crane operators. At the January 15 meeting, Johnson, in answer to Brock's com-
ments regarding the crane operators, explained the two operators had been with the
Company for years, were highly skilled men, and their actual pay rate was much
greater than prevailing area rates. The Company, therefore, fixed a minimum rate
for this classification so it would be obligated to hire inexperienced crane operators
at the same rate it was paying the present operators. Johnson stated the Company
6 The Union's proposed contract was not offered in evidence at the hearing. While
Rekie denied the Union asked for a dollar-an-hour increase he admitted the Union did ask
for a 50-cent-an-hour across-the-board increase and subsequently reduced this demand to
15 cents. The Company offered an increase of 3 cents an hour across the board.
LOCK JOINT PIPE COMPANY 957
and the Union discussed the seven unclassified men, who were performing laboring
work.
It is clear from the testimony of Brock and Rekie that the Union questioned the
sufficiency of the data supplied principally on the grounds that it did not contain a
detailed breakdown of the labor force, that is, the 78 employees classified as laborers,
17 classified as miscellaneous labor, and the 7 unclassified men. At no time did the
Union, as I understand the testimony, contend there was any serious discrepancy
between the classifications set forth in the Company's memorandum (General Coun-
sel's Exhibit No. 3) and those appearing in the proposed contracts submitted by the
Company (article IV of Respondent's Exhibits Nos. 1, 6, 7, 8) or that there was any
discussion, or request for discussion, on that point. However, at the hearing the
General Counsel, in his cross-examination of Johnson, attempted to prove the
inadequacy of the data furnished, or that it was suspect, by comparing the job classi-
fications contained in the memorandum with those in the proposed contracts. In
this respect Johnson testified that the classification "fork lift operator" in the pro-
posed contracts is stated as "mobile equipment drivers" in the data memorandum.
Again, the proposed contracts contain classifications covering, (1) payloader, mobile
crane, grader, (2) helical machine operator, and (3) tension winding operator, all
of which Johnson said were "lumped together for brevity in the data memorandum."
In conclusion the General Counsel inquired, "The Union never asked you for a
breakdown of these classifications, sir?" and Johnson answered, "No, sir." Later
the General Counsel cross-examined Johnson regarding certain classifications in the
data memorandum and the Authority's letter of September 25, 1961, establishing a
new scale for classifications performing work on the project. There is nothing in
the testimony of Johnson, Brock, or Rekie suggesting that the parties discussed
classifications in that manner during the bargaining negotiations. Irrespective of
that point, Johnson said the Company had nine men classified in its memorandum as
"firemen and odd jobs," who were paid $1.55 an hour, and that the "odd jobs" in-
cluded cleanup jobs around the plant and yard and "miscellaneous labor" referred
to helpers who performed production work and were paid $1.50 an hour.
In general it is well settled that an employer's failure to furnish, upon request of
a bargaining agent, wage and classification data relevant to bargaining negotiations
supports an inference of failure to bargain in good faith.? It also seems clear that
a finding of refusal to bargain on this ground presupposes a reasonable description
of the data sought to be obtained from the employer by the bargaining representative.8
Here the evidence shows that the Union asked for information regarding classifica-
tions and current pay rates of the employees and the Company responded with the
memorandum described above. There is no doubt the memorandum was a subject
of discussion at the meeting of January 15. However, the testimony of Rekie and
Brock concerning their questioning of certain data therein, as well as the discussion
thereon, is not only sketchy and fragmentary but inconsistent in many respects.
Rekie's account of the meeting, and Brock's version where it happens to be in general
accord, warrants the finding that the Union pointed out an error in the memorandum
as to the rate of laboratory workers which was corrected and then asked for an
explanation of the seven unclassified men, one additional unclassified man, and the
crane operators, and each of these items, in my opinion was satisfactorily explained
by the Company. Beyond that point it is not clear just what additional information
the Union requested of the Company. From Rekie's testimony it appears that the
Union decided it was simply "incredible" for the Company to have 78 employees
classified as "laborers" and that this classification should be broken down into "labor
first class, second class, etc." The Company's answer to this broadside request was
there was no way of categorizing the degrees of labor performed by men in this
classification. Rekie then proceeded to come up with a flimsy reason to support
his contention, albeit there is nothing in the record to indicate he even advanced this
reason to the Company at any bargaining session. In this respect, Rekie on the basis
of his limited observation of some laborers, stated he had seen some of the laborers
painting, chipping, and patching pipe, so presumably the Company could give a
description of the various daily tasks performed by the laborers. Brock's testimony
is no more convincing than Rekie's for when asked directly to state the position of
the Company concerning the additional data he responded with a lengthy and con-
fusing discourse on merit increases, supra. Indeed, the General Counsel in his brief
7 "M" System Inc., Mobile Home Division Mid-States Corporation , 129 NLRB 527, 542;
552, citing N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 152.
8 For instance in the "M" System case, supra, at p. 542, the Union submitted its request
in writing and at the initial bargaining meeting the precise data sought was thoroughly
discussed by the parties.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frankly concedes , "there is some testimonial conflict as to what occurred in the
bargaining sessions, what was requested and what was not requested-." However,
he then attempts to spell out a refusal to furnish this information on the theory that
there was some variance between the classifications in the memorandum and the
Company's proposed contracts , a matter not discussed at the meeting or meetings,
and generally adopts Rekie's theme that the "laborers" performed different types
of work requiring different degrees of skill, hence they should be classified according
to their skills. The General Counsel also states that the memorandum did not give
the actual pay rates for the classifications . Johnson testified to the contrary on both
direct and cross-examination and his testimony stands uncontradicted . I find no
merit to these contentions.
I find the Company supplied the Union with necessary and available data on job
classifications and pay rates and its alleged failure to furnish additional information
giving a detailed breakdown of its labor force, assuming there was a request for
this information , was not unlawful because of lack of sufficient justification for
this demand.
The Merit Increases
The complaint , as amended at the hearing, alleges that since February 21, 1962,
the Company has refused to bargain collectively in that it has failed and refused to
notify or consult with the Union on the granting of merit increases.
There is no doubt the Company 's proposed contracts contained a clause reserving
the right to grant merit increases at its own discretion.
Brock's complaint was that the Company, without any notice to the Union, had
been granting merit increases since the date of its certification and the Union wanted
advance notice before effectuating any such increases . Brock claimed the Company
turned down his request.
Rekie stated Brock told the Company the Union was opposed to merit increases
because they "created disharmony in the plant," and the merit increases which the
Company had been granting were illegal since the Company had failed to give prior
notice thereof to the Union . Seemingly , Brock claimed the Company should discuss
future merit raises with the Union before making them effective . The Company
took the position it had the right to grant merit increases without consulting with
the Union . While the representatives discussed merit increases during the negotia-
tions neither side changed its position and, of course , no agreement was reached on
that subject.
Johnson testified the Union objected to bargaining on the Company 's merit in-
crease clause because it questioned the legality of the clause . Johnson said discus-
sions on merit increases centered on the provision in the Company's proposed con-
tract and he denied there were any discussions regarding the granting of merit in-
creases to employees during the negotiations or that the Company had in fact
granted any such increases during this period. Johnson further denied that the
Company took the position it would not inform the Union regarding merit increases.
The only evidence regarding a wage increase came from Henry Brandon who
stated he was hired in the latter part of January or early February 1962, and about
30 days later was given a 10-cent an hour increase. Brandon reluctantly admitted
that when he was hired Arnette told him that under company policy he would be
given a 10-cent an hour raise 30 days after his employment.
Johnson said Brandon was hired February 2, 1962 , at $1.35 an hour and on
March 5 he was raised to $1.45, which was a probationary or automatic raise given
to all new labor employees at the end of 30 days.
. Unquestionably , the Union opposed the Company 's contract proposal reserving
to it the right to grant merit increases at its own discretion . Plainly this provision
was a legal and proper subject for the bargaining and the parties discussed the pro-
vision during the negotiations but were unable to reach any agreement thereon.
Here, the only issue concerning merit increases is whether the Company refused
to bargain by failing to notify or consult with the Union on the granting of such
increases . In my opinion the testimony of Brock and Rekie, flimsy as it is, demon-
strates that the real issue centered on the Company 's insistence on the merit increase
provision and as there was nothing unlawful in taking that stand the Union shifted
its theory to suit its convenience . Obviously, the Union disapproved merit increases
and Brock and Rekie made futile efforts to come up with something to support their
claim that somehow and in some manner the Company refused to bargain on this
subject . Likewise , the General Counsel seems uncertain of his theory of the violation
for he summarizes the Union's position as "they [the union representatives] would
prefer that merit increases not be granted , but insisted if they were , the Union be
notified and consulted with." It is sufficient to say the undisputed evidence shows
that no merit increases were even granted by the Company during the negotiations.
a
LOCK JOINT PIPE COMPANY 959
I find the Company did not unlawfully refuse to bargain with the Union concerning
merit increases as alleged in the complaint as amended.
The Positions of the Parties On and After January 15, Conclusions With Respect to
the Strike of March 19
Johnson related that at the conclusion of the January 15 meeting he asked Brock
to state the contract terms still in dispute, which he did. Thereafter Johnson pre-
pared a written list of these items which he presented to the Union at the next meeting
which was held on February 5, and the union representatives conceded the list
correctly set forth the items in dispute.9
Rekie admitted the list was presented to the Union at the February 5 meeting, that
it was discussed by the parties and they agreed it was a correct statement of the dis-
puted items. Later, Rekie sought to qualify his testimony by stating that while the
list set forth the major items in dispute there were other items of a minor nature also
in dispute. Brock did not deny Johnson's testimony relating to the list although he
testified in rebuttal on other matters.
According to Rekie substantially the same situation prevailed on February 23, at
which time, apparently, a representative of the Federal Mediation and Conciliation
Service was called into the dispute.
On the evening of January 26, the Union held a meeting at the VFW hall at
which time Brock, as related by Rekie, advised the members that the Union had been
unable to reach agreement with the Company on many contract provisions such as
union shop, wages, and checkoff and that the Company had refused to furnish
classification and wage data. Further, complaints had been received from employees
regarding discriminatory treatment on the part of supervisors. Therefore, by reason
of the Company's "unfair labor practices, and their refusal to bargain in good faith,
or negotiate with us concerning these wage rates and classifications," the employees,
by secret ballot, voted to strike the Company.
Brock admitted that the Union held an important meeting about March 14, but
there is no evidence as to what transpired at this meeting.
On March 17, Brock notified Johnson the Union was striking the plant on March 19.
The strike, which the General Counsel contends was an unfair labor practice strike,
commenced on March 19, and was still current at the time of the hearing.
Having found that the Company did not refuse to bargain collectively on the
grounds alleged in the amended complaint, and as appears below that the Company
has not engaged in any other alleged unfair labor practices, I further find that fol-
lowing the unsuccessful negotiations the Union engaged in the strike for the purpose
of forcing the Company to agree to more favorable contract terms, therefore the strike
was prompted by economic reasons and was not caused or prolonged by any unfair
labor practices on the part of the Company.lo
Other Alleged Unfair Labor Practices; Interrogation, Surveillance
Rekie said since he was a member of the negotiating committee and had to be
excused from work at times, he frequently talked to his foreman, Stuart Boldry,
about the Union. Around the first of January, Boldry asked when the Union was
to hold its next meeting and Rekie queried if he meant the next negotiating meeting.
Boldry said he was referring to a union meeting and Rekie replied he could not
talk about the Union on company time and property because he could be fired.
9 The list (Respondent's Exhibit No. 2) specifies 11 disputed items but makes no mention
of wage data or merit increases. Accompanying the list was the Company's proposal in
respect to each item.
"To show that the strike was not caused by any unfair labor practices and to discredit
Rekie's testimony to the contrary, the Company introduced the transcript of his testimony
before the Oklahoma Security Commission which reveals that he testified the strike was
called because the Union could not obtain the kind of contract it wanted. While the
transcript contradicts Rekie's previous testimony and constitutes an admission against
interest on Rekle's part and, therefore, entitled to some consideration , I do not deem these
factors controlling or decisive on the issues herein.
The Company also introduced newspaper articles covering the strike wherein Brock is
quoted as saying the Union was asking for a reasonable wage increase and a contract
similar to the one it had with the Company at its New York plant. The newspaper re-
porter testified to the accuracy of the quotation obtained during his interview with Brock,
while Brock testified to the contrary . I do not rely upon this evidence to support any of
the findings herein , so it is unnecessary to discuss the articles or to resolve the credibility
issue.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steele joined the Union on January 26, and about 2 weeks prior thereto Foreman
Higgins asked how the Union was coming along and if it was going to call a strike.
Steele did not state what, if any, answer he gave Higgins. A few days later Foreman
Caldwell asked how many men were in the Union and Steele replied he did not know.
Steele further stated that he had been sick with the flu and on Monday, January 29,
Boldry asked how he was feeling. Steele replied he was trying to get to bed early and
Boldry commented he did not get in early Friday night, which was the night of the
union meeting. Steele said he had business to attend to that night.
Boldry, Higgins, and Caldwell did not testify at the hearing.
As already stated the Union held a meeting at the VFW hall the evening of
January 29. Rekie and Steele arrived at the hall about 7 o'clock, the meeting was
scheduled for 7:30, and Rekie saw Elwood Pitsenbarger, production manager, sitting
in his car which was parked across the street from the hall. In substance Rekie said
Pitsenbarger was looking in the general direction of a number of employees who
were standing in front of the hall and that he remained there until shortly before the
meeting started.
While Steele saw Pitsenbarger drive slowly past the hall, he did not see him park
his car for Steele immediately entered the building.
In brief, Brock said Pitsenbarger was in his car parked across the street from the
hall and he remained there for about 20 or 30 minutes. During part of the time
Pitsenbarger was talking to an employee who was standing alongside the car.
Pitsenbarger admitted he parked his car at the time and place as stated for the
purpose of going to a beer garden located next to the VFW hall. However, just as he
parked one of the employees, Roy Germany, came to his car and told him the
Union was holding a meeting, so he drove off and did not return. Pitsenbarger
saw Brock standing in front of the hall on this occasion.
The uncontradicted testimony of Rekie and Steele regarding interrogations by
foremen is not only meager but wholly unimpressive insofar as showing any union
animus on the part of the Company. Although Rekie and Boldry frequently dis-
cussed the Union, the only incident Rekie could relate took place sometime around
January 1, when Boldry asked when the next union meeting would be held. Rekie
refused to answer the inquiry and that settled the matter. Steele claimed Higgins
asked how the Union was coming along and if it was going to strike and obviously,
he did not even answer Higgins. Shortly thereafter, Caldwell inquired how many
men were in the Union and he said he did not know. Both these queries were addressed
to him before he even joined the Union. The third incident occurred January 29,
when Boldry, after inquiring of Steele's health and Steele's reply, commented he had
not gone to bed early Friday night. From this harmless remark it must be inferred,
apparently, that Boldry was referring to Steele's presence at the union meeting on
January 26, which is still meaningless, for there is no contention that Boldry criticized
or threatened Steele for attending the meeting or that he sought any information
concerning the meeting itself.
I consider these acts trivial and isolated, wholly unrelated to the principal issues
herein, and insufficient to support a finding of interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
There is no doubt Pitsenbarger was in the vicinity of the VFW hall the night in
question. Rekie and Brock claimed he remained there for some 20 or 30 minutes.
On the other hand Pitsenbarger said he was there for the purpose of visiting a beer
garden next to the hall and when one of the employees told him the Union was hold-
ing a meeting he immediately left the area. About the only conflict in the testimony
is the length of time Pitsenbarger remained at the scene of the meeting. I am satis-
fied with Pitsenbarger's explanation of his presence in the area and I accept his testi-
mony that, upon being informed of the scheduled meeting, he left the area at once.
It also strikes me that if Pitsenbarger, who was on the bargaining committee, in-
tended to spy on the Union it is unlikely he would have conducted his activities in
the open manner described herein. Again, absent evidence to the contrary, it cannot
be said that Pitsenbarger's presence in the vicinity of a veteran's hall, as distinguished
from one owned or occupied by a union or unions, warrants the inference he was
there for the purpose of spying on the Union which happened to be holding a meet-
ing at the premises at that time."
I find the Company did not maintain surveillance of the union meeting on
January 26.
The Discharge of Steele
Steele was hired in August 1961 and worked on quality control under Boldry until
about the first part of February 1962, when he was discharged. Steele first became
11 Cf. Dal-Tex Optical Company, Inc., 137 NLRB 274.
LOCK JOINT PIPE COMPANY 961
interested in the Union on January 26 when he attended the meeting at the VFW
hall, at which time he signed a union card and was one of the nominees for the office
of secretary-treasurer. Generally, Steele's duties included the checking of pipe in
the manufacturing process to see that it complied with the standards required by the
Authority. On one occasion during his early employment Boldry warned Steele to
be more careful in checking the pipe for cracks, which warning he accepted and
followed without any further complaints from Boldry. About 2 weeks after the
January 26 meeting, Steele was called to Boldry's office where Boldry stated he was
being discharged because he had checked the "fitness" of the coating in the presence of
the operator. Steele asked if that were the reason for his discharge and Boldry said
yes. Steele then asked if it was possible his union activities had anything to do with
his dismissal and Boldry replied, "Yes, it's possible." Boldry told Steele he could
finish out the day, it was Thursday, and work Friday to complete the week, or he
could discharge him immediately. Steele elected to finish out the week. Steele ad-
mitted that on this occasion he checked the coating in the presence of the operator
but this was in line with procedure and Boldry had observed him making tests in
these circumstances prior thereto. On Friday, Steele requested Pitsenbarger to watch
him conduct a check, which he performed in the same manner, and during the check
Steele asked if he could see anything wrong and Pitsenbarger said no. Pitsenbarger,
Steele, and Boldry then engaged in conversation during which Steele referred to the
check just made and the conversation ended with Pitsenbarger stating whatever
Boldry said was final. Steele was discharged that day.
Pitsenbarger stated an inspector or checker makes spot checks to determine the
thickness of the mortor coating on the pipe by sticking a gauge in the wet mortar and
be issued instructions to the effect that such tests should be conducted without pre-
vious indication to the operator and after the pipe had left the control of the operator.
Pitsenbarger further said the actual test could be made in the presence of the operator
for he exercised no control over the pipe at that stage of the manufacturing process.
On the basis of Steele's undenied testimony, I find he was discharged by Boldry
for checking pipe coating in the presence of the operator. I also find from the testi-
mony of Steele and Pitsenbarger that it was standard procedure to conduct the
actual test in this fashion. Consequently, Boldry's dismissal of Steele for that reason
presents a puzzling situation which I will not attempt to explain. But, irrespective of
the baffling reason for Steele's discharge, the General Counsel still has the duty of
proving the Company had knowledge of his union membership or activities and that
his dismissal was motivated by unlawful considerations. Steele's activities consisted
of nothing more than joining the Union at the meeting of January 26, and being one
of the nominees for the office of secretary-treasurer. Certainly it cannot be said
Steele was an outstanding union adherent and there is nothing in the record suggest-
ing that the Company was aware of his joining the Union. The only evidence touch-
ing on company knowledge and motive appears in Steele's account of his conversa-
tion with Boldry at the time of his dismissal . Thus, Steele asked if he was being fired
for checking the pipe in the presence of the operator and Boldry told him yes. Steele
then inquired, "Could this possibly have anything to do with my union activities?"
and Boldry replied, "Yes, it's possible." No doubt a statement of this character
would carry weight in the context of other acts or conduct indicating discriminatory
treatment, but standing alone I cannot see how the statement is sufficient proof to
sustain a finding that the Company had knowledge of Steele's union membership or
activities and that he was discharged for that reason. Of course, knowledge and
motive may be inferred where the evidence discloses a pattern of hostility to organi-
zation.12 However, as there is an absence of any such pattern in this case I am of the
opinion the evidence herein would not warrant the inference the Company knew
Steele was a member of the Union and therefore discriminatorily discharged him.13
While Steele's discharge might raise a suspicion that it was discriminatory, mere
suspicion or surmise cannot be considered as evidence to support a finding of unfair
labor practice.14
I find the Company did not discriminatorily discharge Steele.
12 N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602; Angwell Curtain Company, Inc. v.
N.L.R.B., 192 F. 2d 899, 902-903 (C.A. 7) ; Wiese Plow Welding Co., Inc., 123 NLRB 616.
13 The Great Atlantic & Pacific Tea Company, Inc., 129 NLRB 757, 758-759; Trenton
Manufacturing and Distributing Company , 129 NLRB 797, 801-802; William L. Law,
et at., d/h/a Law Tanning Company, 123 NLRB 1748, 1753-1754.
14 N.L.R.B. v. Shen-Valley Meat Packers, Inc., and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 393, AFL, 211 F. 2d 2189, 292-293 (C.A. 4) ;
Law Tanning Company, supra.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Disciplinary Layoff of Floyd Byrd
About March 6, Byrd and Fullingham were given a 3-day suspension by Foreman
Kinnard for eating lunch in the boilerroom during worktime. Kinnard told Byrd he
was being laid off for "continuous verbal warnings ," or failure to obey previous
warnings . Byrd admitted he had been warned two or three times previously for
failing to wear safety glasses.
Byrd returned to work after his layoff and about March 15, around 4:15 in the
morning, the shift began at 4:30, he met Wendell Wilmoth in the boilerroom for
the purpose of signing him up in the Union. Byrd gave Wilmoth a union card which
Wilmoth filled out and handed back to him together with a check. Kinnard ap-
proached and asked Byrd, "Is this union business?" and he answered, "Yes, sir. Its
on my own time." Apparently, the three men conversed for a minute or so and
Byrd and Wilmoth then left the boilerroom to punch in. Byrd said he actually
punched in at 4:33, but the clock recorded his time as 4:30, since it allowed a 6-minute
leeway. Kinnard was right behind Byrd when he punched in. That afternoon
Kinnard called the crew together to announce he was enforcing plant rules and that
they should be at their place of work on time. The next morning, March 16,
Kinnard told Byrd he was being laid off for 6 days for being late the previous morning
and for "continuous verbal warnings." Byrd was then laid off but did not return
to work at the expiration thereof for the reason that he joined the strike on March 19.
Wilmoth testified he signed a union card in the manner described by Byrd. He
further stated Kinnard saw him sign the card and asked him and Byrd if "that had
anything to do with the union" and they answered yes. Wilmoth then went to work
and was not thereafter laid off.
Clifford Pearce said he remembered the incident when Byrd signed up Wilmoth
and that he was immediately behind Byrd when he punched in that morning. Nothing
was said to Pearce about punching in late that day. Pearce joined the Union during
January.
Kinnard did not testify at the hearing.
The uncontested testimony shows that Byrd solicited Wilmoth to sign a union card
and when Kinnard asked if they were transacting union business they admitted they
were. That ended the conversation insofar as its related to union matters. Byrd
then punched in as set forth above. The next day, March 16, he was given a 6-day
disciplinary layoff for being late the previous morning and for "continuous verbal
warnings." Wilmoth was not laid off, nor was Pearce, who punched in after Byrd.
In essence , the General Counsel argues the discriminatory character of the layoff
is established by the fact that Byrd was only 3 minutes late reporting for work, that
the Company had a lenient policy in this respect, and Byrd had received no prior
warnings for tardiness. Further, the layoff came quickly after his solicitation of
Wilmoth and disparity of treatment is spelled out by the fact that Pearce was not
disciplined for punching in late, nor was Wilmoth who was a party to the solicitation.
Plainly, there is no evidence whatever of any disparity in the treatment of union
and nonunion employees.15 Thus, there is no testimony that any nonunion men
reported after Byrd that morning, or any other morning, and were not reprimanded.
It is true Pearce punched in immediately after Byrd and was not disciplined, but
Pearce had been a member of the Union since January and there is no indication he
had received prior warnings for any reason. Again, and there is no testimony on
this point, it may be that Pearce went directly to his work station after punching in
whereas Byrd may have been delayed in reaching his place of work. Accordingly, I
do not infer Byrd's layoff was discriminatory merely because the Company failed to
take similar action against Pearce. I also fail to see how the Company's failure to
suspend Wilmoth supports the General Counsel's position. To me it proves the
contrary. The facts show Kinnard caught Byrd soliciting Wilmoth to join the Union,
but he uttered no threats or warnings of any kind to them. The next day Byrd
was laid off but nothing hapepned to Wilmoth. Surely, if the Company was engaging
any campaign to discourage membership in the Union it would have disciplined
Wilmoth as well as Byrd for both were equally participating in organizational
activities. The fact that no action was taken against Wilmoth convinces me that
Byrd's solicitation had nothing to do with his suspension.
I, therefore, find Byrd was not discriminatorily laid off.
Here, there is no contention the Company was enforcing an invalid "no-solicitation"
rule. As stated above, the Regional Director did not vacate and set aside this provi-
sion in the settlement agreement.
15 See Wayline, Inc., 119 NLRB 1698, 1706-1707.
LOCK JOINT PIPE COMPANY 963
The Photographing of the Strikers
The complaint as amended at the hearing alleges that Pitsenbarger and Johnson
photographed the activities of the striking employees on March 19.
Johnson related that on the morning of March 19, he was in his office and observed
about 20 or 25 men standing at the east gate entrance to the plant. He and Pitsen-
barger obtained their movie cameras and went to the gate to take pictures of the mass
picketing but, apparently, they were unsuccessful for the men dispersed as they ap-
proached the gate. Johnson had been advised by his attorney that the Union had
engaged in mass picketing at other plants and in order to obtain an injunction to
prevent this type of picketing it would be necessary to secure evidence of mass picket-
ing at the plant. That was the reason Johnson and Pitsenbarger took or attempted to
take pictures of the strikers.
Rekie, who was picket captain, said that on March 19, the Union had two pickets
carrying signs at the east or main gate but many cars were parked nearby and a
number of men "milled around" the gate to find out if the strike was effective and
when they would perform picket duty. Rekie saw Johnson and Pitsenbarger take
pictures of the men on this occasion as well as the next day. Brock stated there were
only two pickets at the entrance but a number of cars were parked on the street, the
closest one being about 150 feet from the gate, and a lot of strikers were in
the area, "all up and down the highway." Brock saw Johnson and Pitsenbarger taking
pictures of the strikers on two occasions and told them they were violating the law
by doing so without their permission. Byrd estimated about 100 strikers were in the
area, some 20 yards from the gate.
The Board has held that an employer by photographing, or pretending to
photograph, organizational activities such as the distribution of literature by union
representatives to his employees or of employees attending or leaving a union meet-
ing thereby interfered with, restrained, and coerced his employees in the exercise
of their rights guaranteed under the Act in violation of Section 8(a)(1) thereof.18
Here the Company was concerned about mass picketing at its premises and planned
to seek injunctive relief if it occurred. Consequently, when a large number of strikers
appeared in the area of the main gate the morning of the strike, Johnson and Pitsen-
barger took, or attempted to take, motion pictures of the crowd as proof that the
Union was engaging in mass picketing to support the Company's contemplated in-
junction proceeding. Under all the circumstances, I find that was the purpose of
photographing the strikers. The General Counsel of the Board has administratively
held that an employer did not violate Section 8(a)(1) of the Act by taking
photographs of picket-line activities of strikers, since such photographs were taken
to support efforts to obtain an injunction against serious picket line conduct.I7
I find the Company did not unlawfully photograph, or pretend to photograph, the
strikers.
Conclusions
Having found the Company has not engaged in unfair labor practices as alleged
in the consolidated complaint as amended in Cases Nos. 16-CA-1616 and 16-CA-
1633, I shall recommend that the complaint be dismissed.
Having found that the Company did not violate the Act subsequent to entering
into the settlement agreement in Case No. 16-CA-1533, I shall recommend that the
settlement agreement be reinstated.I8
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint as amended in Cases Nos. 16-CA- 1616 and 16-CA-1633.
4. The Respondent has not engaged in unfair labor practices subsequent to the
execution of the settlement agreement in Case No. 16-CA-1533.
10 Colvert Dairy Products Company, 136 NLRB 1508; General Engineering Inc., et al.,,
131 NLRB 901 ; Faulhaber Company, 129 NLRB 561.
17 Adm. Rul., No. SR-905, 47 LRRM 1011. See also Adm. Rul., No. SR-1059, 47 LRRM.
1207, and No. SR-1096, 47 LRRM 1227.
18 Peter Kiewit Sons' Co., 136 NLRB 119.
708-006-64-vol. 141-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, I recommend
that the complaint as amended be dismissed in its entirety.
I further recommend that the settlement agreement in Case No. 16-CA-1533 be
reinstated.
Cless B. Davis d/b/a Queen City Transports and Paul E . Merrill,
its General Manager and Chauffeurs, Teamsters, Warehouse-
men and Helpers , Barre , Vermont, Local Union No . 597. Case
No. 1-CA-3786. March 28, 1963
DECISION AND ORDER
On October 12, 1962, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter the Respondent filed exceptions to the Intermediate Report
and a supporting brief, and the General Counsel and Charging Party,
herein called the Union, filed briefs in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following exception and
modifications.
The Trial Examiner concluded that the Respondent violated Section
8 (a) (5) of the Act by refusing to bargain with the Union which was
the designated representative of a majority of the employees in an
appropriate unit. This conclusion is in part predicated upon the
Trial Examiner's finding that five winter drivers, who had been ter-
minated a week prior to the bargaining request, should be included
in the unit and their cards counted in determining the Union's ma-
jority status. We disagree with the Trial Examiner's finding as to
the winter drivers and, consequently, with his ultimate conclusion.
It appears, and we find, that on March 15, 1962, Respondent dis-
tributed letters to five winter drivers advising them that no work
I Respondent's request for oral argument is denied as, in our opinion , the record, in-
cluding Respondent's exceptions and brief , adequately presents the issues and the positions
of the parties.
141 NLRB No. 84.