Zelrich Co.

National Labor Relations Board - Board Decisions

Nov 5, 1963

144 N.L.R.B. 1381 (N.L.R.B. 1963)

ZELRICH COMPANY 1381
desire to remain a part of the existing unit represented by the Inter-
venor, and the Regional Director will issue a certification of results of
election to such effect.
[Text of Direction of Election omitted from publication.]
Zelrich Company and International Hod Carriers , Building and
Common Laborers Union of America, AFL-CIO, Local Union
No. 518 . Case No. 16-CA-1770. November 5, 1963
DECISION AND ORDER
On July 17, 1963, Trial Examiner Morton D. Friedman issued his
Intermediate 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 attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by 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 briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions
and modifications 2
1. We agree with the Trial Examiner that the Respondent violated
Section 8(a) (1) of the Act by interrogating employees and threaten-
ing them with loss of benefits if they voted for the Union. On Novem-
ber 20, Johnson, whom we find, for the reasons relied upon by the
Trial Examiner, to be a supervisor within the meaning of the Act,
asked Waites, the employee who had brought the Union into the
plant and was the leader in the organizing campaign, what he thought
of the Union. Johnson also told Waites that if the Union came in,
1 At the conclusion of the General Counsel's case, the Respondent , which had cross-
examined the General Counsel ' s witnesses , rested without presenting any witnesses in its
behalf, but merely stated its position as to the issues herein.
As the record, including the exceptions and briefs , adequately presents the issues and
the positions of the parties , the Respondent 's request for oral argument is hereby denied.
2 We hereby correct apparently inadvertent errors in the Intermediate Report , which do
not affect the ultimate findings and conclusions.
144 NLRB No. 120.
1382 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
the profit-sharing plan initiated by the Respondent would be lost, and,
therefore, they "ought to do something about it before it goes any
further." In a meeting called by the Respondent's President Rich on
December 13, 1962, the day before the Board election, Rich stated that
he did not know what effect a "third party" would have on the con-
tinuance of the benefits instituted by the Respondent. It is clear,
and we find, that, by such remarks, the Respondent was conveying to
the employees a threat of loss of benefits should the Union win the
election.
2. We agree with the Trial Examiner that Waites was discharged
in violation of Section 8(a) (3) and (1) of the Act. In November
1962, Waites, acting on reports by other employees that employee
Liggins was reporting union activity to the Respondent, told Liggins
that the employees might "take him to the bushes" if he continued.
On December 4 Waites again told Liggins that he should "stop going
to the company" with reports because he, Waites, had information
about Liggins which, if revealed to the Respondent, would get Liggins
discharged. The next day, Waites was suddenly removed from his
job of 4 years' duration as crane operator, and transferred to work
at the stacking table, which was generally considered the most difficult
and menial job at the plant. IHe was told that the transfer was made
because the employees already assigned to the job were not stacking
enough steel. Waites worked at the stacking table for 2 full days,
without relief, contrary to the Respondent's practice of assigning
employees to this work for only a few hours at a time. When Waites
reported for work on December 10, he was summoned to Rich's office
and discharged. The only reason given was that he had been "putting
out threats."
The Respondent contends in its brief that Waites was transferred
to the stacking table while the alleged threats to Liggins were investi-
gated because the job on the crane put Waites in a position in which
he could cause serious injury to other employees, and that he was
thereafter discharged because of his threats. We note, however, that
the Respondent's investigation of the alleged threats did not include
asking Waites if he had made them. Under all the circumstances,
including the Respondent 's union animus; its sudden transfer of
Waites, the leading union proponent , from the responsible job he
had held for 4 years to the most menial job in the plant; its require-
ment that he work there under more onerous conditions than were
required of others assigned to this job; and its discharge of Waites a
few days before the election , we find, in agreement with the Trial
Examiner, that the reason assigned by the Respondent for the dis-
charge was a pretext , and that the real reason was Waites' union
activities.
ZELRICH COMPANY 1383
3. The Trial Examiner found that the Respondent, which had
been paying a Christmas bonus for 5 years, withheld the bonus in
December 1962, in retaliation for the employees' choosing the Union
in the Board election held December 14, in violation of Section
8 (a) (5), (3), and (1) of the Act. He found further violations of
Section 8(a) (5) and (1) of the Act in that the Respondent granted
unilateral wage increases on January 18, 1963, without consulting with
the Union, although a majority of the employees had selected the
Union as their collective-bargaining representative in a Board elec-
tion on December 14, 1962; and in that the Respondent failed and
refused, on and after February 11, 1963, after the Union had been
certified, to bargain with the Union. The Respondent contends that
it had no duty to bargain at any time with the Union. It asserts that
the Board election was invalid because Waites, who had been dis-
charged for threatening a fellow employee, was allowed to serve as
union observer at the election. It is well established, however, that
an employee who has been discharged, and whose discharge is the
subject of an unfair labor practice charge, may serve as an observer at
an election.3 We also find no merit in the Respondent's argument that
it was denied due process by the Board's refusal to grant a hearing
on the issue on Waites' eligibility to act as an election observer.4
4. The General Counsel has excepted to the failure of the Trial
Examiner, in view of his findings, to include (a) in "The Remedy"
portion of the Intermediate Report, a provision for interest at 6 per-
cent per annum on the Christmas bonus payment, in accord with the
Board's holding in Exchange Parts Company, 139 NLRB 710; (b)
in his "Conclusions of Law," a conclusion that the Respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (5) and (1) of the Act by unilaterally granting
wage increases; and (c) in "The Remedy," a provision that the
Respondent will be ordered to cease and desist from unilaterally grant-
ing wage increases. We find merit in these exceptions. "The Remedy"
and "Conclusions of Law" are therefore hereby modified to include
all of the foregoing, and the Order and notice will likewise be modified
in accord therewith.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following additions and modifications : 5
' Soerens rlotor Company, 106 NLRB 1388
A charge alleging that the discharge of Waites on December 10 was unlawful was filed
on December 12, 1962, 2 days before the election
4 O.K Van and Storage, Inc, 127 NLRB 1537, enfd. 297 F. 2d 74 (C A. 5). N.L R B. v.
Clearfield Cheese Co , Inc . 322 F. 2d 89 (C A 3).
5The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the Nnfinnal Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns, shall:
1 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The cease-and-desist portion of the Recommended Order shall
be modified by adding the following, and by renumbering the subse-
quent paragraph :
(e) Unilaterally granting wage increases without notifying or
consulting with the said Union as the exclusive representative
of all its employees in the aforesaid appropriate unit.
2. The "Notice to All Employees" appearing in the Appendix shall
be amended by gadding the following paragraph immediately after
the second indented paragraph :
WE WILL NOT unilaterally grant wage increases without notifica-
tion to or consultation with International Hod Carriers, Build-
ing and Common Laborers Union of America, AFL-CIO, Local
Union No. 518.
3. As Texas has a right-to-work law, we shall delete from the
paragraph preceding the signature line in the notice the proviso
"except as that right may be,affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, author-
ized in Section 8(a) (3) of the Act, as amended."
4. The following shall be added immediately below the signature
line in the notice :
NOTE.-We will notify the 'above-named employee if presently
serving in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed December 12, 1962 , a first amended charge filed January 3,
1963, and a second amended charge filed February 12, 1963, by International Hod
Carriers , Building and Common Laborers Union of America , AFL-CIO, Local
Union No. 518, herein called the Union , the General Counsel for the National
Labor Relations Board , herein called the Board , by the Regional Director for the
Sixteenth Region , issued his complaint dated January 25, 1963 , and his amended
complaint and notice of hearing dated February 25 , 1963, against Zelrich Company,
herein called the Respondent or the Company , alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a) (1), (3 ), and (5) and Section 2(6) and (7) of the National
Labor Relations Act (61 Stat . 136), herein called the Act . The Respondent's
answer and amended answer to the complaint and amended complaint herein deny
the allegations of statutory violations therein. Copies of the complaint, the
amended complaint and the charge , first amended charge and second amended
charge, and notice of hearing were duly served upon all the parties.
Pursuant to notice , a hearing was held at Dallas, Texas, on March 21 , 1963, before
Trial Examiner Morton D. Friedman. All parties were represented by counsel.
Full opportunity to be heard , to examine and cross-examine witnesses , and to intro-
ZELRICH COMPANY 1385
duce evidence was afforded all parties.' After the close of the hearing the General
Counsel and the Respondent filed briefs which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
During the 12-month period immediately preceding the filing of the amended
complaint herein, a representative period, the Respondent, a Texas corporation
having its principal office and plant in the city of Dallas, State of Texas, where it
is engaged in the operation of a steel service center, manufactured, sold, and shipped
from its plant products valued in excess of $50,000 directly to customers located
outside the State of Texas. During the same period, the Respondent purchased
goods and materials valued in excess of $50,000 which were shipped from points
outside the State of Texas directly to its plant in Dallas.
It is admitted, and I find, that the Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the policies of the Act to assert juris-
diction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers, Building and Common Laborers Union of America,
AFL-CIO, Local Union No. 518, the Charging Union herein, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
The Union began to organize the Respondent's employees early in October 1962.
On October 24 the Union filed a petition for certification of representative. During
the union campaign, the Respondent, through its president, Al Rich, made three
speeches to the employees. On November 27, 1962, the Board issued its Decision
and Direction of Election in the representation proceeding. During this entire
period, employee Norman Waites was the most active union adherent. On
December 10, 1962, before the election, Waites was discharged by Rich. On
December 14 the election was held and Waites acted as a watcher and an observer
for the Union over the protest of the Respondent's representative. The Union won
the election and the Respondent protested and filed objections to the conduct of the
election and to conduct affecting the results of the election, basing such objections
on the fact that the Union was permitted to use Waites as an observer. The objec-
tions were filed on December 19, 1962, and on January 23, 1963, they were over-
ruled by the Regional Director who also at the same time certified the Union as the
exclusive bargaining representative of the Respondent's employees in the unit herein-
below set forth. On January 31, 1963, the Respondent filed a request for stay of
certification and petitioned the Board for review of the Regional Director's findings
with regard to the objections. On February 8, 1963, the Board denied the Re-
spondent's request as "raising no substantial issue warranting review."
On or about January 30, 1963, the Union requested the Respondent to bargain
with it pursuant to the certification but the Respondent refused and still refuses
to bargain on the ground that its objections to the elections were improperly over-
ruled and that the election is a nullity in view of the fact that Waites, a dischargee,
acted as observer for the Union and also that Waites' presence at the election as an
official observer was coercive upon the employees who voted at the election and
prevented a free expression of the desires of the employees.
Thus I am confronted with the following principal issues:
1. Was Waites discharged for cause or was his discharge discriminatory?
2. Did the Respondent otherwise coerce and restrain its employees by threats and
interrogation?
3. Did the Respondent refuse to bargain in failing to pay Christmas bonuses and
in granting a general unilateral wage increase pending the outcome of the objections
to the election?
1 The Respondent rested at the end of the General Counsel's case and did not proffer
any testimony in support of its contentions or to refute the testimony given by General
Counsel's witnesses.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Was the election a nullity in view of the fact that Wastes was discharged allegedly
for cause?
5. Is the Respondent 's continuing refusal to bargain with the Union , on the ground
that the election was a nullity , unlawful?
B. The events
As noted above, the Union began its organizational campaign among the Re-
spondent's employees early in October 1962. The union movement was instigated
by Norman Waites, who had been an employee since October 19, 1956. Waites,
who had been a member of another union before accepting employment with the
Respondent, arranged for the employees' first meeting with the Union. From that
point on Waites continued as the spokesman for the employees in their relationship
with the Union. On October 24, 1962, the Union, as stated above, filed its rep-
resentation petition with the Board . On November 2, 1962 , Respondent 's President
Rich held a meeting with the employees at which he advised them of the filing of
the petition and told them that the Respondent afforded all employees an opportunity
to talk over any problems they might have. He assured the employees that this
policy would continue and told them that they would not need the third party to
represent them. He then asked if anyone had any problems or desired to ask any
questions. Norman Waites was the only employee who spoke up. Waites stated
that the men wanted to know whether they were going to get a raise and also
informed Rich that the truckdrivers wanted to know why the Respondent did not
truck in its products intsead of using common carrier. Rich replied that he could
not answer the questions at that time.2
When this meeting ended, employee Lenard Liggins approached Waites in the
plant and complimented him on the statements that Waites had made during the
meeting. Upon Liggins' questioning, Waites explained the benefits which he claimed
could be derived from unionization.
On November 20, 1962, Jesse Johnson, who bore the title of foreman but whose
supervisory status was contested by the Respondent, approached Waites at the latter's
work and asked what Waites thought about the Union. Waites replied that he did
not know. Johnson then told Waites, "We ought to do something about it before
it goes any further because it would take all of our profit sharing." Johnson then
explained to Waites that a certain sum of money was placed in a profit-sharing fund
and told Waites that if the Union came in they would probably not be able to get it,
referring to the money. Waites then told Johnson that probably they would not
get it in any event. Waites then informed Johnson that he sided with the rest of
the employees and that whatever the majority wanted to do was satisfactory to him.3
Sometime in November, either before or after the Board's Decision and Direc-
tion of Election in the representation proceeding was issued on November 27, Waites
had a further conversation with Lenard Liggins. It would seem that Liggins was
suspected by prounion employees of relating to the Respondent's officials information
which Liggins was able to obtain regarding the union activity and the latest develop-
ments among the prounion adherents . In this conversation with Liggins , Waites told
him that if he did not stop carrying information to the Company, "the boys would
take him to the bushes." On examination at the hearing, Waites explained that he
meant that the other employees would "beat up" Liggins 4
After Waites' conversation with Liggins, theretofore related, and before Decem-
ber 2, Liggins was in the washroom of the plant when one of the employees present
said something to the effect that Liggins was the man who was telling the foreman
everything that had been going on. Albert Brown, in testifying, described the em-
ployees as "playing" with Liggins There was no physical molestation of Liggins
at that time and Liggins was laughing with the employees who were "playing" with
him. There is nothing in the record to show that Waites was present at this wash-
room incident.
Thereafter, on December 2, 1962, upon clocking out at the end of the day,
Liggins entered his automobile for the purpose of going home when a group of
employees, union adherents, crowded around the car. Liggins rolled up the car
windows, evidently to prevent anything untoward from happening The employees
2 From the credited testimony of Waites as corroborated by other General Counsel wit-
nesses, Albert H Brown and B J Frazier
3 From the credited, uncontroverted testimony of Norman Waites.
4 Waites testified that the reason he told this to Liggins was to prevent violence in the
plant and prevent Liggins from being beaten However, he admitted that he did not
-explain this to Liggins.
ZELRICH COMPANY 1387
stood around and hooted and asked Liggins to lower the windows. When Liggins
refused, an employee named Feagin lifted the hood of the car and removed the coil
wire, placing it on the hood. Waites, who came up to the group after the
group had started to beleaguer Liggins, stood and watched but did not participate.
According to Brown and Wailes, Liggins was laughing during the course of these
events. The crowd ultimately dissipated inasmuch as the employees were unsuccess-
ful in engaging Liggins in a conversation.5
During the morning of December 3 or 4, 1962, Waites engaged Liggins in still
another conversation inside the plant. Present were employees Frazier and Hudnall.
Wastes asked Liggins why the latter had told the foreman everything he found out
about the men's union activities. He then stated to Liggins, "I know something on
you, and I will get you fired, and you will be looking for a job." After this remark
was made Liggins left the group and Waites saw him talking to Foreman Johnson.
On cross-examination, Waites testified that Hudnall told him that Hudnall had
overheard Liggins tell Johnson everything that had been said during the conversation
between Waites and Liggins.6
The day after this last conversation with Liggins, Waites came to work and began
to operate the crane which he had been operating for some years. After a very short
period of time, Liggins was advised by Foreman Johnson that Superintendent
Buchanan wanted to talk to Waites in Buchanan's office. When Waites reported
to Buchanan's office, the latter told Waites to leave the crane and to work the
stacking table to help the men who were assigned to the table inasmuch as they
were not stacking enough steel. After some protest on Waites' part, he went to the
table and there found Albert Brown and William Hall working. Both Waites and
Brown testified that the work at the stacking table is physically the hardest work in
the plant and requires the least skill of any work in the plant.? Brown testified
credibly that he had worked at five different jobs in the Respondent's plant and that
the work at the stacking table was both the most difficult, hazardous, and menial of
all the jobs. No employee other than Waites ever worked at the stacking table
for more than 3 or 4 hours at a time without relief because of the difficulty of the
work. When Hall and Brown were transferred to the stacking table, approximately
2 weeks after they had signed union cards, they worked 81/2 hours, spelling each other.
However, when Waites reported to the job he worked 81/2 hours per day without
any relief whatsoever while Hall and Brown still relieved each other. Nor did Hall
or Brown relieve Waites at any time while he was assigned to the stacking table.
Waites continued to work at the stacking table until he came to work on Decem-
ber 10, 1962. That morning he found that his timecard was missing from its usual
place. He proceeded to Superintendent Buchanan's office and was informed there
that he would have to talk to President Rich. Rich told Waites that the latter had been,
"putting out threats" and that he could not have anybody in the Respondent's employ
doing this. Although Waites denied ever having threatened anyone, Rich's only
reply was that Waites could not be "putting out threats." Waites was then dis-
charged. Waites had only once before, during his entire term of employment with
Respondent, been criticized for his work or conduct Approximately 3 or 4 years
before the events herein had occurred, Waites had almost struck another employee
with a load that the crane he was operating was carrying. However, upon that
occasion, Waites explained to Rich that the load was unavoidably swinging and that
therefore he was unable to avoid the near accident. Rich, at that time, admonished
Waites to be more careful but immediately permitted him to return to work on
the crane.
On the day before the election, December 13, 1962, President Rich assembled the
employees and explained in detail to them the various benefit plans that had been
given to the employees by the Respondent before the advent of the Union without
any union or any other pressure. He emphasized to the employees that the Re-
spondent instituted these benefits of its own free will and stated that he did not
know how they would be continued with a third party entering the picture. He
From the credited, uncontroverted testimony of Wastes and Brown
8 Waites testified that the threat to Liggins was based on information given to Waites-
by another employee to the effect that Liggins, a truckdriver, had driven the Respondent's
truck many miles out of its normal itinerary in order to make a private visit I do not
find it necessary to determine whether Liggins made such a trip inasmuch as it is not
material to the determination of this proceeding
4 Evidently the steel comes to the plant in rods or bars bound in bundles which are
taped together with metal strips or other materials. The bands are then cut on the table
and the employees take the steel off the table and store it to the side of the stacking table.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explained to the men that he was not saying that the benefits would be discontinued
but at the same time he was not saying they would continue. After this talk, the
election was held and the Union won.
Waites was designated and acted as an observer and a watcher for the Union at
the polls. The Respondent objected before the election to the use of Waites as a
union observer on the grounds that he had been discharged for cause and that be-
cause of his earlier conduct his presence in that capacity would be coercive to the
voters. However, prior to this time and shortly after he was discharged, the Union,
on December 12, 1962, filed a charge with the Board on behalf of Waites alleging that
Waites had been discriminatorily discharged. The Board representative at the elec-
tion held that inasmuch as Waites was an alleged discriminatee in a charge that had
been filed, he was eligible to act as a watcher for the Union at the election. When
the election was over, the Respondent's representative signed a certification of con-
duct of the election but reserved to the Respondent the right to object on the basis
that Waites had acted as an observer.
As stated above, Respondent filed objections to the election which were investi-
gated and found to be without merit by the Regional Director. Pending this action,
the Respondent failed to pay the Christmas bonus which each year from 1957
through 1961, inclusive, the Respondent had paid to its employees. There was no
consultation with or notification to the Union regarding the decision not to pay the
Christmas bonus and the Respondent did not offer any explanation to anyone for
its action. On January 18, 1 month after the Respondent filed its objections to the
conduct of election, again without consultation with or notification to the Union,
the Respondent granted wage increases to all employees in the bargaining unit found
by the Board to be appropriate. On January 30, 1963, Fred Gardner, the union
representative, requested in writing of the Respondent's President Rich that arrange-
ments be made as soon as possible for bargaining sessions No reply was given
by the Respondent to this written request. On the morning of February 11, 1963,
Gardner called Respondent's attorney on the telephone and requested again that
a meeting be scheduled for bargaining purposes. The Respondent's attorney refused
to meet with Gardner claiming that the Respondent's position was that no valid
election had been held and that, accordingly, the certification by the Regional Direc-
tor was invalid.8
C. Interference, coercion, and restraint
1. The supervisory status of Jesse Johnson
Waites, Brown, and Frazier all testified that they considered Jesse Johnson their
foreman. Brown testified credibly and without contradiction that around the
middle of September 1962 he absented himself from work without prior arrange-
ment or approval and that when he did so he understood that it was the company
policy to discharge him for this conduct. However, he called Johnson and requested
Johnson to send his check to him. Johnson asked Brown if the latter had quit
and when Brown replied in the negative Johnson asked him if he intended to return
to work. Upon Brown's affirmative reply, Johnson instructed him to report to work
the next day. About 2 weeks thereafter Brown again took off from work for a
period of about 3 days and on the last day of his absence, he again called Johnson
and a similar conversation was had with a similar result. Approximately 2 weeks
to a month after the second incident, Brown missed his usual ride to work and
telephoned Johnson to explain. Johnson told Brown that this was all right and
to come in the next day. He reported to work the next day and at the morning
break Johnson told Brown that whenever he was in doubt about his job Brown
should call Johnson. However, Johnson warned him also that if he took off again
for no apparent reason he would be discharged. Thereafter, on January 16, 1963,
Brown wanted a half-day off for personal reason. He went to Johnson with this
request and Johnson, without consultation, granted the request.
Waites, Brown, and Frazier all testified credibly that Johnson directed them in
their work and the manner in which it was performed although each admitted that
the general assignments came from Buchanan's office.
On the basis of all of the foregoing I find that Johnson had the authority to
grant time off, to discipline, and to effectively and independently direct employees
who worked under him. Accordingly I conclude that Johnson possessed sufficient
indicia of supervisory authority to compel me to conclude and find that Johnson
was a supervisor within the meaning of the Act at all times material herein.
8 This conversation was later confirmed by a letter from Gardner to the Respondent's
attorney.
ZELRICH COMPANY 1389
2. The interrogation and threat
When President Rich stated in his preelection speech that he did not know how it
would be with a third party in the picture with relation to the various benefit plans
that had been granted voluntarily by the Company, he impliedly threatened to dis-
continue the benefits if the Union were to be chosen and impliedly promised to
continue the same if the Union were defeated. When the context in which these
remarks were made is considered and in view of the fact that a Board-conducted
election was scheduled soon thereafter, I am led to the conclusion that they were
intended to be, and were so understood by the employees, a simultaneous threat and
promise of benefit. I conclude and I find, therefore, that in uttering these remarks,
Rich interfered with his employees' rights in violation of Section 8(a) (1) of the Act.
I also find the interrogation of Norman Waites by Foreman Johnson equally as
violative. When Johnson asked Waites what the latter thought about the Union
and coupled this interrogation with the threat that if the Union came in the profit-
sharing plan would be lost to the employees, the coercion and restraint implied in
the interrogation became very apparent. Moreover, the threat itself, that the profit-
sharing plan would be discontinued, also constituted interference, coercion, and
restraint in violation of Section 8 (a)( 1 ) of the Act.
D. The discharge of Norman Waites
As noted above, Waites was first employed by the Respondent on October 19,
1956. At the time of his discharge Waites was the second oldest employee of the
Respondent and his service had been continuous. The record shows that in the
course of his employment he had received two pay raises. Although employed
originally as a truckdriver, Waites was advanced to the job of crane operator which
he held for several years until several days before his discharge. I have heretofore
related the circumstances under which Waites was removed from the crane, placed
at the stacking table and ultimately discharged while working at the stacking table.
In addition to the foregoing, Waites was the leading union adherent in the plant
and was the employee who not only propounded the plan for unionization of the
shop but who also made contact with the Union and brought about the first meet-
ing at which the employees were introduced to the union representative.
Also, as stated above, at the meeting of November 2, when Rich, in making
his address to the employees and announcing the union petition, asked for ques-
tions or discussion from the men, it was Waites who acted as the leader of the men
in inquiring whether Rich was going to do anything about a pay raise and asked
why the Respondent did not assign more trucking work to its own employees. Thus
the Respondent learned that Waites was, at least, a spokesman who was not timid
about speaking out about matters of employee welfare to his supervisors.
During all this time, of course, Waites was actively working for the Union. In
his capacity as chief union spokesman, he was asked by the other employees about
the Union too and spoke to Lenard Liggins with regard to the latter's supposed
activities in relating to the Respondent the actions and the determinations of the
union adherents and in reporting on other union activities in the plant. Moreover,
Waites alone was interrogated about union matters by Supervisor Foreman Jesse
Johnson. Although there is no direct proof that the Respondent was, in fact,
informed by Liggins of the threat made by Waites to Liggins that the latter would
be taken "to the bushes" if he did not cease his reporting activities, the Respondent
used as the reason for Waites' discharge his threats made to Liggins. Accordingly,
I conclude that Liggins ultimately must have told the Respondent at least of the
threat made by Waites to Liggins that Waites would have Liggins discharged.
That Respondent did receive word that Waites made the threats is clear because this
is the reason that Respondent gave to Waites for his discharge. All of the foregoing
factors, together with the fact that the Respondent employed only 16 employees,
convince me that the Respondent had knowledge of Waites' union activity and of
the fact that Waites was the leading union adherent among its employees.9
Turning now to the reason why Waites was discharged, the record establishes
that when he was discharged Waites was told by Rich he was discharged because he
was "putting out threats." Furthermore, there is no doubt that Waites did make
threats to Liggins. The first threat was that if Liggins did not stop his reporting
of the union activities to his supervisor and to the Respondent's other officials,
the "boys would take Liggins to the bushes." The second threat, of course, came
just before Waites was discharged when Waites told Liggins that he would have
Liggins discharged if Liggins did not cease the activities of which the men com-
9 See Wiese Plow Welding Co., Inc., 123 NLRB 616, 619.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained. Therefore, as a matter of first impression, it would seem that the Respond-
ent, had it so chosen, could have lawfully discharged Waites for having made threats
to another employee. However, the circumstances surrounding and leading up to
Waites' discharge convince me that the discharge was motivated by reasons other
than Waites' threats to Liggins.
Thus, as noted above, Waites was a trusted employee of long standing and at
the time of his discharge had been working for the Respondent for a period of over
6 years. He operated a most expensive and dangerous piece of equipment. That
he was entrusted with such a job indicated that the Respondent had the utmost faith
in Waites' ability. Waites, as a matter of fact, had been reprimanded only once in
his entire career as an employee of the Respondent and that, as noted above, was
a number of years before the discharge incident. Then, without explanation, at the
height of the preelection campaign period, and despite Waites' protests, Waites was
suddenly switched by Superintendent Buchanan from crane operator to stacking-
table worker. As stated before, Waites' fellow employees credibly testified, along
with Waites, that this was physically the most difficult single job in the entire plant
and certainly the most menial. Accordingly, from the position of respect which
Waites had among his fellow employees as one of the most skilled men in the shop
Waites was reduced to the most lowly and onerous position at a time when the
employees were looking to him for guidance and leadership. Furthermore, he was
never relieved at this work during the entire 8'h-hour day that he worked at it as
were other employees who worked at the table. Then, after several days in this
trying and burdensome job, Waites' discharge came very suddenly without any
warning or admonition. It would seem that certainly, on the basis of Waites' long
tenure and the respect for his ability which the Respondent most certainly must
have entertained during those years of employment, the precipitate manner of his
discharge was under all the circumstances at least very suspicious. This sudden
discharge of a longtime and skilled employee, combined with the fact that Waites
spoke in favor of the Union to other employees and acted as the employees' spokes-
man at the November 2 meeting, combined with the timing of discharge which took
place immediately or almost immediately before the Board-conducted election,
leads me to conclude that Waites was discharged not because of the threats he
made to Liggins but because of his apparent leadership of the union forces in the
Respondent's plant. And this conclusion is bolstered when the background of
interference, restraint, and coercion is considered.
Accordingly, I find that Waites' discharge constituted a violation of Section
8(a)(3) and (1) of the Act.
E. The refusals to bargain
1. The certification
As heretofore set forth, on January 23, 1963, the Regional Director for the
Sixteenth Region of the Board certified the Union as the bargaining representative of
the Respondent's employees in a unit comprising all warehousemen and truckdrivers
employed at the Respondent's Dallas, Texas, plant, excluding all office clerical em-
ployees, guards, watchmen, and supervisors as defined in the Act. This certification
followed investigation by the Regional Director of the Respondent's objections to
the conduct of the election and to conduct affecting the results of the election, in
which the Respondent charged that the Union's designation and use of Norman
Waites as an observer for the Union at the polls during the election held under Board
auspices rendered the election invalid and a nullity because Waites was no longer
an employee of the Respondent and had been discharged for cause and also because
the presence of Waites at the polls had a coercive effect upon the employees who
thereby were prevented from exercising their free will in casting their ballots. As
noted heretofore, the Respondent's petition to the Board for review of the Regional
Director's decision overruling the Respondent's objections was refused by the Board.
Accordingly, I find that the above-mentioned unit is the appropriate unit and that
the Union was at all times material and still is the bargaining representative of the
employees in said unit.
2. The Respondent's refusal to meet with the Union
On January 30, 1963, after the Respondent's objections were overruled by the
Regional Director and the Union was certified, the Union by letter addressed to
Al Rich, the president of the Respondent, requested a meeting for the purposes of
collective bargaining and suggested that a meeting take place at the offices of the
Company at 10 a.m. on February 6, 1963. This letter, signed by Fred Gardner, the
Union's business agent, was not answered although it was stipulated that it was
ZELRICH COMPANY 1391
received in due course by Rich. On the morning of February 11, 1963, Gardner
had a conversation with Respondent's counsel in which Gardner requested a meeting
for the purposes of collective bargaining and Respondent's counsel advised Gardner
that the Company would not meet for the purposes of collective bargaining for the
reason that the Company did not recognize that there was a valid election or valid
certification of representative. This refusal of February 11 occurred 3 days after the
Board had denied the Respondent's request for review of the Regional Director's
Supplemental Decision and Certification of Representative.
At no time since the above dates has the Respondent ever met with the Union
for the purpose of collective bargaining Accordingly, I have no alternative but to
find in the light of the Regional Director's certification of the Union as the bargaining
representative of the Respondent's employees in the unit aforesaid, and the Board's
refusal to review the Regional Director's actions taken upon the Respondent's
objections, that the Respondent in refusing to meet with and bargain with its
employees' certified representative, has failed and refused wrongfully to bargain and
continues to fail and refuse wrongfully to bargain in violation of Section 8(a) (5)
and (1) of the Act.
3. The Respondent's unilateral actions
As stated above, the Respondent in 1962 failed to pay the Christmas bonus which
it had paid each year from 1957 through 1961, inclusive. The record does not show
nor was any evidence introduced to clarify the basis upon which the bonus was
computed and given in prior years. Nor is there any evidence that when employees
were hired they were told that the Christmas bonus was part of the emolument of
their jobs. However, neither does the Respondent seek to explain in any way why the
payment was not made in 1962 other than argue that it was a decision based on
business judgment which it was entitled to make. The General Counsel, on the other
hand, contends that under all of the circumstances herein, the failure to make the
payment without first consulting the Union was a unilateral action which in and of
itself constituted a refusal to bargain and which was taken discriminatorily to dis-
courage membership in the Union.
It has long been established that where the Christmas bonus is not a mere gratuity
but is plainly an integral part of a compensatory structure and therefore a term and
condition of employment of the employees, it becomes a mandatory subject of collec-
tive bargaining within the statutory coverage of "wages, hours and other terms and
conditions of employment." 10 In the absence of an explanation by the Respondent
as to the manner in which the Christmas bonuses had been given in the past and the
basis on which they were paid, it must be concluded that they constituted a subject
concerning which the Respondent was obliged under law to bargain with the
collective-bargaining agent of its employees.ii
In the instant case the Union had been chosen by the Respondent's employees on
December 14 as their bargaining representative. While it is true that on De-
cember 19 the Respondent filed objections to the conduct of the election, the
Respondent nevertheless knew at the time of the failure to pay the Christmas bonus
that the Union had been chosen at the election by the employees. Accordingly, it
must be found that the Respondent failed to notify the Union on this mandatory
subject of collective bargaining at the Respondent's own risk and in the light of the
later certification by the Regional Director and the overruling of the Respondent's
objections to the election there can be no doubt that the Union was the majority
representative of the Respondent's employees when the failure to make the Christmas
bonus payments occurred. Accordingly, I find that by failing to make the Christmas
bonus payments and by failing to consult with the Union with regard thereto the
Respondent violated its statutory duty to bargain with the representative of its
employees and, accordingly, violated Section 8(a)(5) and (1) of the Act.
The General Counsel further contends, and the complaint alleges, that this failure
to pay the 1962 Christmas bonus also constituted discrimination against the em-
ployees. I agree. Although the Respondent argues that it had the right to dis-
continue the bonus as a matter of business judgment, it offers no explanation or
basis for the exercise of the claimed right. Thus there was no evidence that the
Respondent's financial condition was worse in December 1962 than it was in preced-
ing years when the bonus was given. Indeed, the only evidence available as to the
Respondent's financial condition is the incident of the granting of the wage increases,
discussed below, less than a month after the failure to pay the Christmas bonus. In
io N L R.B v Niles-Bement-Pond Company, 199 F. 2d 713, 714 (C A 2)
ii Singer Manufacturing Company v N L.R.B , 119 F 2d 131, cert. denied 313 U S. 595;
A 7L R B v Niles-Bement-Pond Company, supra, Citizens Hotel Company d/b/a Hotel
Texas, 138 NLRB 706
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the foregoing and in the light of all of the circumstances surrounding the
withholding of the bonus , including Rich's coercive speech about the possible with-
drawal of benefits and the unlawful discharge of Norman Waites, I am constrained to
conclude that payment of the bonus was withheld for the purpose of discouraging
membership in and adherence to the Union, and as retaliation for the employees'
majority vote for the Union. Accordingly, this withholding was discriminatory
within the meaning of Section 8 (a) (3) and (1) of the Act.
On January 18, 1962 , the Respondent unilaterally granted a general wage increase
without notification to or consultation with the Union. As in the case of the dis-
continuance of the Christmas bonus, it is immaterial that this action occurred before
the date of certification inasmuch as the question concerning representation was
resolved in favor of the Union on December 14, 1962. Therefore, the Respondent
in giving these wage increases and in failing to consult with the Union acted at its
own peril and, therefore, when the Union was certified it was finally established that
the Respondent violated its employees ' rights and its obligation to bargain with the
Union. Accordingly , I find that the granting of such unilateral wage increases at
the time when the Respondent did so constituted a further violation of Section
8(a)(5) and (1) of theAct. 12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above , occurring in con-
nection with the operations described in section I, above, has a close , intimate, and
substantial relation to trade, traffic , and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
It having been found that Respondent engaged in and continues to engage in
certain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action,
including the posting of appropriate notices, designed to effectuate the policies of the
Act, as amended.
It having been found that the Respondent refused to bargain collectively with the
Union thereby interfering with , restraining , and coercing its employees , I shall there-
fore recommend that the Respondent cease and desist therefrom and also, upon
request, bargain collectively with the Union with respect to wages, hours, and other
terms and conditions of employment and embody in a signed agreement any under-
standing reached.
It having been further found that the Respondent, by threats and promises of
benefits, interfered with , restrained , and coerced its employees in violation of Section
8(a) (1) of the Act, I shall further recommend that the Respondent cease and
desist therefrom.
It having been additionally found that the Respondent discriminatorily withheld
the 1962 Christmas bonus, it will be recommended that the Respondent make whole
the employees in the appropriate unit by paying to them the 1962 Christmas bonus
based upon the formula used in the preceding years.
Also having found that Norman Waites was discriminated against in respect to
his hire and tenure of employment. I shall recommend that the Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position , without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him , by payment of a sum of money equal to the amount he
normally would have earned as wages from the date of his layoff to the date of the
offer of reinstatement , less his net earnings during the said period, with backpay
computed on a quarterly basis in the manner established by the Board in F. W
Woolworth Co., 90 NLRB 289, 291-294 and that interest be included in the said
backpay award as prescribed in Isis Plumbing & Heating Co, Inc., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
'2 Fleming Manufacturing Company , Inc, 119 NLRB 452.
ZELRICH COMPANY 1393
CONCLUSIONS OF LAW
1. Zelrich Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Hod Carriers, Building and Common Laborers Union of America,
AFL-CIO, Local Union No. 518, is a labor organization as defined in Section 2(5)
of the Act.
3. All warehousemen and truckdrivers employed at the Respondent's Dallas, Texas,
plant, excluding all office clerical employees, guards, watchmen, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union above named has been, and now is,
the exclusive representative of all the employees in the appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with the Union above named as exclusive
bargaining 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) and (I) of the Act. By threatening its employees and making promises of
benefits to them and interrogating them concerning union affiliation and activities,
thereby interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Norman
Waites, thereby discouraging membership in the above-named Union, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
7. By failing to pay the 1962 Christmas bonus without consultation with the Union
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5), (3), and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting commerce.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, I recommend that Zelrich Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Hod Carriers, Building and
Common Laborers Union of America, AFL-CIO, Local Union No. 518, as the
exclusive representative of all its employees in the following appropriate unit:
All warehousemen and truckdrivers employed at the Respondent's Dallas, Texas,
plant, excluding all office clerical employees, guards, watchmen, and supervisors as
defined in the Act.
(b) Threatening its employees with discontinuance of benefits should the Union
win the election and interrogating its employees with regard to their union desires
and discharging employees for engaging in union activity and other protected activity.
(c) Discouraging membership in International Hod Carriers, Building and Common
Laborers Union of America, AFL-CIO, Local Union No. 518, or any other labor
organization, by the discharge of employees, or by discrimination in any other
manner with respect to hire and tenure of employment, or any term or condition of
their employment.
(d) Discouraging membership in International Hod Carriers, Building and Com-
mon Laborers Union of America, AFL-CIO, Local Union No. 518 by withholding
or refusing to pay the Christmas bonus customarily paid to its employees.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named Union, or any other labor organization, to engage in other
concerted activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Upon request bargain collectively with International Hod Carriers, Building
and Common Laborers Union of America, AFL-CIO, Local Union No. 518, as the
exclusive representative of all its employees in the aforesaid unit and, if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Offer Norman Waites immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other rights
and privileges, and make him whole in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Pay to its employees in the appropriate unit the 1962 Christmas bonus, to be
computed in the manner set forth in the section of the Intermediate Report entitled
The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to permit an analysis of the backpay amount due the employee designated, together
with his reinstatement rights, as set forth in the section of the Intermediate Report
entitled "The Remedy."
(e) Post at its place of business in Dallas, Texas, where the unfair labor practices
were committed copies of the attached notice marked "Appendix." 13 Copies of the
notice, to be furnished by the Regional Director for the Sixteenth Region, shall be
posted, immediately upon their receipt, after being duly signed by a representative
of the Respondent. When posted, they shall remain posted for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
these notices are not altered, defaced, or covered by any other material.
(f) File with the Regional Director for the Sixteenth Region, within 20 days of
the date of the service of this Intermediate Report and Recommended Order, a
written statement setting forth the manner and form in which it has complied with
these recommendations.14
13 In the event the Board adopts this Recommended Order, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event of enforcement of the Board's Order by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order"
14 In the event of Board adoption of this Recommended Order, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Hod Carriers, Building
and Common Laborers Union of America, AFL-CIO, Local Union No. 518, or
any other labor organization, by the discharge of employees, or by discrimina-
tion against them in any other manner in regard to their hire and tenure of
employment, or any term or condition of their employment.
WE WILL NOT unilaterally terminate Christmas bonuses or change any other
term or condition of employment of our employees within the appropriate unit,
without bargaining collectively with International Hod Carriers, Building and
Common Laborers Union of America, AFL-CIO, Local Union No. 518.
WE WILL, upon request, bargain collectively with International Hod Carriers,
Building and Common Laborers Union of America, AFL-CIO, Local Union
No 518, as the exclusive bargaining agent of the employees in the appropriate
unit with respect to rates of pay, wages, hours of employment, or other condi-
tions of employment, and if an understanding is reached, embody such under-
standing in a signed agreement. The appropriate unit is:
All warehousemen and truckdrivers employed by this Company at our
Dallas, Texas, plant excluding all office clerical employees, guards, watch-
men, and supervisors as defined in the Act
WE WILL offer Norman Waites immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay, or other incidents
of employment relationship, which he may have suffered by reason of the
discrimination practiced against him.
WE WILL pay to each employee in the appropriate unit a 1962 Christmas
bonus to be computed in the same manner as in previous years.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist International Hod Carriers, Building and Common Laborers Union of
America, AFL-CIO, Local Union No 518, or any other labor organization, to
COLNIT, II! C., AND FASHIONIT TRIM, INC. 1395
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities.
All our employees are free to become, remain, or refrain from becoming or
remaining members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, authorized in Section 8(a)(3) of the Act, as amended. We will not
discriminate in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity on behalf
of any labor organization.
ZELRICH COMPANY,
Employer.
Dated------------------- By-------------------------- ----------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No. Edison 5-4211 , Extension 2131, if they have any questions concerning this
notice or compliance with its provisions.
Colnit, Inc., and Fashionit Trim, Inc. and International Ladies'
Garment Workers Union , AFL-CIO, Upper South Department.
Case No. 5-CA-p313. November 6, 1963
DECISION AND ORDER
On July 31, 1963, Trial Examiner Lee J. Best 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 violative of Section 8 (a) (1) of the National Labor Relations
Act 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 Inter-
mediate 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 [Chairman McCulloch and Members L edom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are affirmed. The Board has considered the Intermediate
Report, the exceptions, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions,' and recommenda-
tions as modified below.
'In adopting the Trial Examiner's conclusion that the Respondent violated Section
8(a) (1) of the Act, Member Leedom relies only on the following conduct, as mole fully
set forth in the Intermediate Report. (1) The interrogation and threats by Forelady
Asberry, as testified to by Asberry and employees Bolt and Burnett; (2) the threat by
Plant Supervisor Viana, as testified to by employee widener; (3) Plant Manager Marko-
witz' conduct in creating an impression of surveillance ; and (4 ) Viana's surveillance of
the March 10, 1963, union meeting The Respondent's other conduct and statements, as
set forth in the Intermediate Report, did not in his opinion violate the Act.
144 NLRB No. 121.
727-083-64-vol. 144-89