Bilton Insulation, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1961

129 N.L.R.B. 1296 (N.L.R.B. 1961)

1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been done ; then proceeded to look for Julio and I found him in the Hide
Cellar, loafing and talking to the Hide Gang and keeping them from their work.
ACTION TAKEN: I q WARNING
q SUSPENSION FOR____
q DISCHARGEDAYS
REMARKS: I reprimanded Julio for this misconduct and warned him that if he
,ever repeated such conduct of loafing , talking or going into other departments other
than the ones to which he was assigned or failed to attend to an emmergency (sic)
job promptly , that he would be dismissed . Further, I suspected that he was soliciting
and warned him that it was strictly against company rules and policy to allow solicit-
ing of any kind on Company time and soliciting on Company properties.
(Signed) PAUL VALENZUELA.
Bilton Insulation , Inc. and United Construction Workers, Divi-
sion of District 50, United Mine Workers of America. Case
No. 5-CA-16926. January 13, 1961
DECISION AND ORDER
On June 23,1960, Trial Examiner Louis Plost issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in this case to a three-member panel
[Chairman Leedom and Members Fanning and Kimball].
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 Intermedi-
ate report, the exceptions and the brief, and the entire record in the
.case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modifi-
cations.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act by refusing, on September 11,1959,
to recognize the Charging Union as the collective-bargaining repre-
sentative of its employees in an appropriate unit. The record is clear
that the Union represented a majority of the employees on that date.
The Trial Examiner credited the testimony of Union Representative
Allen that on that day he requested recognition of the Union as collec-
tive-bargaining representative. He did not credit Bilton's testimony
Respondent's request for oral argument is hereby denied because the record , the excep-
tions, and the brief adequately present the issues and the positions of the parties.
129 NLRB No. 162.
BILTON INSULATION, INC. 1297
to the effect that Allen had merely expressed the desire "to organize
[the] company into a union shop." We find no clear preponderance of
all the relevant evidence to convince us that the Trial Examiner's
credibility resolution was incorrect .2
We also agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act by discussing grievances, pay
raises, vacations, and other working conditions with a committee of its
employees in derogation of the authority of the exclusive bargaining
representative. The record shows that the Respondent called the'po-
lice to remove Union Representative Allen from its premises, and
thereafter engaged in a series of meetings with a number of its em-
ployees in the absence of representatives of the Charging Union for the
purpose of bargaining. A variety of matters were discussed, and cer-
tain demands of the employees were met by the Respondent with the
expected result, namely, the repudiation of the Union by the employees.
It is well established that a company which is aware of the existence of
a properly designated bargaining representative may not deal directly
or indirectly with its employees, nor make any unilateral changes in
the employees' terms or conditions of employment, without first giving
the bargaining representative an opportunity to bargain collectively.'
2. We do not agree with the Trial Examiner that the Respondent
violated Section 8(a) (1) of the Act by threatening its employees with
going out of business in the event it had to deal with the Union. The
Trial Examiner's finding is based on a statement which President Bil-
ton made in the course of a meeting with his employees on September
23, 1959. According to Bilton he advised the employees that it was
their privilege to become members of the Union, but that in such event,
and if he had to grant very many additional benefits as the Union may
require him to do, he would overnight become noncompetitive and
would not be able to get jobs for his business. If the Company did not
get jobs the employees would not get work, and the Respondent would
be forced in'such a situation to go out of business. Employee Edward
Alfred testified that Bilton explained that no other insulation com-
pany in the area was unionized, that the Respondent, if he had to pay
the higher union scale of wages, would not get any jobs, and that in
such a situation the Respondent could not keep it up and would have
to go out of business.
Contrary to the Trial Examiner we do not find these remarks of
Bilton to be an open or implied threat of closing his plant in retaliation
against its employees' joining the Union. We believe that under the
circumstances Bilton merely conveyed to his employees his interpreta-
tion of the possible economic consequences to be expected if the Re-
2Standard Dry Wall Products , Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
3 Howard-Cooper Corporation, 117 NLRB 287, 293; Central Metallic Casket Co., 91
NLRB 572; Tampa Crown Distributors , Inc., 121 NLRB 1622.
586439-61-vol. 129-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's business was unionized. His remarks appear to us to be an
expression of an analysis or prediction of things to come rather than a
threat of reprisal to force his employees into abandoning the Union .4
Accordingly, we shall dismiss the complaint with respect to the alleged
threat.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Bilton Insulation, Inc., its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to recognize or to bargain collectively with United
Construction Workers, Division of District 50, United Mine Workers
of America, as the exclusive representative of all warehouse employees,
truckdrivers, insulation applicators, and skilled and unskilled laborers
at the Respondent's Arlington, Virginia, plant, excluding all office
clerical employees, guards, watchmen, professional employees, and
supervisors as defined in the Act.
(b) Threatening employees with discharge for wearing union in-
signia, assisting in the preparation, and signing by its employees, of
a letter of withdrawal from the above-named Union, and having such
letter read to the employees by its supervisors.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist United
Construction Workers, Division of District 50, United Mine Workers
of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed 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 which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the United Construc-
tion Workers, Division of District 50, United Mine Workers of Amer-
ica, as the exclusive representative of all employees in the aforesaid
appropriate unit with respect to wages, rates of pay, hours of employ-
ment, and other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Arlington, Virginia, copies of the notice
attached hereto marked "Appendix A." I Copies of such notice, to be
4 Armstrong County Line Construction , 124 NLRB 132 , 136, footnote 9; Edmont Manu-
facturing Company, 120 NLRB 525, 530 ; Lanthier Machinery Works, 116 NLRB 1029,
1034
5 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 "
BILTON INSULATION, INC. 1299
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent's authorized representatives, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notice is not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8(a) (1) by an alleged threat to close down its plant if the employees
joined the Union.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with United Con-
struction Workers, Division of District 50, United Mine Workers
of America, as the exclusive representative of all our employees
in the appropriate unit. The bargaining unit is:
All warehouse employees, truckdrivers, insulation appli-
cators, and skilled and unskilled laborers employed at our
Arlington, Virginia, plant, exclusive of office clerical em-
ployees, guards, watchmen, professional employees, and su-
pervisors as defined in the Act.
WE WILL NOT threaten employees with discharge for wearing
union insignia, assist in the preparation, and signing by our
employees, of a letter of withdrawal from the above-named Union,
and have such letter read to our employees by our supervisors.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
to self-organization, to form a labor organization, to join or assist
United Construction Workers, Division of District 50, United
Mine Workers of America, or any other labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of
collective bargaining or through mutual aid or protection, or to
refrain from any or all such activities.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with United Con-
struction Workers, Division of District 50, United Mine Workers
of America, as the exclusive representative of our employees in
the appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
All our employees are free to become and to remain, or to refrain
from becoming or remaining, members of the above-named Union, or
any other labor organization.
BILTON INSULATION, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged on October 12, 1959, by United Construction Workers, Divi-
sion of District 50, United Mine Workers of America, herein called the Union, that
Bilton Insulation , Inc., herein called the Respondent, has been engaging in and is
engaging in unfair labor practices affecting commerce , as set forth and defined in the
National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, the
General Counsel of the National Labor Relations Board , herein called the Board, on
behalf of the Board, by the Regional Director for the Fifth Region (Baltimore, Mary-
land), issued a complaint and notice of hearing on January 26, 1960 , pursuant to
Section 10(b) of the Act and Section 102.15 of the Board's Rules and Regulations,
Series 8, as amended , alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8(a)(1) and ( 5) and Section
2(6) and (7) of the Act.
On February 4, 1960, the Respondent filed an answer denying in effect that it had
engaged in any of the unfair labor practices alleged.
In substance the complaint alleges that the Union duly represents an appropriate
unit of the Respondent 's employees for purposes of collective bargaining ; that on or
about September 17, 1959, after due and proper request made by the Union and at all
times thereafter, down to and including the date of the issuance of this complaint, the
Respondent did fail and refuse and continues to fail and refuse to bargain collectively
in good faith with the Union as the exclusive representative of such employees of the
Respondent; that the Respondent engaged in other conduct violative of the Act; and
that by its unfair conduct the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed by the Act more particularly Section
8(a)(1) and (5) thereof.
Pursuant to notice , a hearing was held before Louis Plost , the duly designated Trial
Examiner, on March 28 and 31 and April 1, 1960, at Washington, D. C.
At the hearing all parties were represented and were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence bearing on the
issues, to argue orally on the record , and to file briefs and proposed findings and con-
clusions. The parties did not argue orally. A date was fixed for the filing of briefs,
proposed findings, and conclusions with the Trial Examiner . Briefs have been re-
ceived from the Respondent and from the General Counsel.
At the close of the hearing the Trial Examiner granted a motion by the General
Counsel to conform the pleadings to the proof with respect to names, dates, spelling,
and like matters.
The parties also filed with the Trial Examiner a stipulation which provides for the
correction of the transcript of record . The stipulation is received in evidence as Trial
Examiner's Exhibit No. 1.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
BILTON INSULATION, INC. 1301
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated that Respondent is and has been at all times material herein
a corporation duly organized and existing by virtue of the laws of the Commonwealth
of Virginia , having its principal office and place of business at Arlington , Virginia,
where it is engaged , pursuant to subcontract , in the application of insulation in homes.
Respondent , in the course and conduct of its business operations during the preced-
ing 12 months ' period, a representative period, performed services valued in excess of
$200,000 at places located outside the Commonwealth of Virginia . During the same
period, Respondent purchased materials and supplies valued at $50 ,000, which were
shipped from places outside the Commonwealth of Virginia direct to Respondent's
plant at Arlington , Virginia.
II. THE LABOR ORGANIZATION INVOLVED
United Construction Workers, Division of District 50, United Mine Workers of
America, is a labor organization within the meaning of Section 2(5) of the Act and
admits employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
The Appropriate Unit and the Union's Representation Therein
The complaint alleges and the parties stipulated that in order that the employees of
Respondent may have the full benefit of their rights to self-organization and bargain-
ing and otherwise to effectuate the policies of the Act , all warehouse employees , truck-
drivers, insulation applicators, and skilled and unskilled laborers employed at Re-
spondent 's Arlington , Virginia , plant, excluding all office clerical employees , guards,
watchmen , 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.
The Respondent 's payroll for September 15 and 25, 1959, the dates material
herein,' lists a total of 47 employees . It is clear , however, that one rank-and-file
employee was omitted 2 and that the correct total is 48.
Of the 48 named on the payroll , 3 are unquestionably supervisors within the mean-
ing of the Act.3
The Respondent contends that employee Dennis Carter is also a supervisor . Carter
testified that he has never had the right to hire or fire. Apparently he cannot recom-
mend such action effectively . He performs the regular work of all "applicators" and
appears to be a mere channel of instructions to employees from the real supervision.
On the entire record, and from his observation of the witnesses, the Trial Examiner is
convinced that Dennis Carter is not a supervisor within the meaning of the Act and
therefore falls within the appropriate unit.
Of the 45 employees thus left on the payroll, a total of 15 are employed on a project
in North Carolina. One of these is Lawrence Perkins, who according to President
Bilton, "is the superintendent ." Although the others received some training in Ar-
lington, Virginia , and are paid out of the Arlington office, they were hired in North
Carolina and do not interchange work with the Arlington employees. They were
hired for the one job and may be put on others not in Arlington if new contracts are
procured after their present work is finished . Regarding the pay rate in North Caro-
lina, President Bilton testified:
TRIAL EXAMINER : Is your rate of pay in Lejeune the same as it is in Arlington?
The WITNESS : In Lejeune , I would say , the rate of pay is substantially lower.
However, it has to comply with Federal and State regulations to the letter of the
law.
1 General Counsel's Exhibit No. 35.
2 The employee in question Is one John Tyson Adolph Bilton, the Respondent's presi-
dent, testified that Tyson could have been left off the payroll through an oversight or that
he was on layoff status at the time . Since Tyson signed a union authorization card on
September 10, 1959 ( General Counsel's Exhibit No . 24), and also signed a letter to the
Union around September 26, 1959 (General Counsel's Exhibit No. 33), he must have been
employed during that period and should be included on the payroll
3 Charles H Free, C T. Johnson, and Lawrence Perkins.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER: How about the other point?
The WITNESS: The same thing in North Carolina.
TRIAL EXAMINER: It is considerably lower?
The WITNESS: It is considerably lower, according to the standards of the
unions over there, the Federal requirements. Every payroll is certified.
The Trial Examiner finds on the entire record that the Respondent's North Carolina
employees are a mere temporary force, whose working conditions and interests are
not the same as those of the employees in the Arlington, Virginia, plant, and there-
fore they do not properly belong within the unit appropriate for the purposes of
collective bargaining herein.4 Eliminating the 15 North Carolina employees a total
of 30 remained within the appropriate unit.
At the hearing the Union offered 27 signed authorization cards, 24 of which are
dated prior to September 17, 1959.
On September 22 the Union filed an RC petition with the Fifth Regional Office 5
(Case No. 5-RC-2904) and to sustain its claim of representation it also filed
24 authorization cards. These cards are all stamped "September 23, 1959" by the
Regional Office, thus proving their possession by the Union on September 22.
With respect to the 27 cards offered at the hearing the General Counsel adduced
the following testimony: 6 of the Respondent's employees testified they had signed
the cards offered as bearing their names. Benjamin F. Robinson testified he saw
eight employees sign cards, including employee Jodie Raines who testified. Robin-
son stated he also gave cards to eight of the men who returned them to him signed
or filled out. He also received a signed card from employee John Tyson, although
he did not give the card to him. These cards were retained by Robinson until
he gave them to Union Representative O. B. Allen.
Union Representative O. B. Allen testified that five cards were procured by him
during the course of the campaign and, while he did not actually remember seeing
the cards signed, they were given to him and were retained by him until he sub-
mitted them to the Board's office in support of the RC petition. However, among
the 27 cards there is 1 (Landon Johnson Exhibit No. 31) undated. It is not accepted
by the Trial Examiner. The Trial Examiner finds that 26 cards should be counted
as proof of the Union's majority.6
Conclusion
Inasmuch as the Union submitted 24 authorization cards signed prior to Sep-
tember 17, 1959, by employees of the Respondent included among the 30 employees
found to be an appropriate unit for the purposes of collective bargaining in the
instant matter, the Trial Examiner finds upon the entire record in the case, con-
sidered as a whole, that on September 17, 1959, a unit for the purposes of collective
bargaining among the Respondent's employees, effected by the instant proceding,
consisted of the unit hereinabove described, and further finds that the said unit was
represented for the purposes of collective bargaining by the Union.
B. The refusal to bargain an September 17, 1959
As has been found herein, on September 17, 1959, the Union represented the
Respondent's employees within an appropriate unit.
O. B. Allen testified 7 that the is a representative of the Union engaged in organ-
izing locals for the Union. As to his work he testified on cross-examination:
Q. You are a full time employee of that company land no other?
A. That is right.
Q. How long have you been so employed?
A. You mean in the present capacity?
Q. With that Union in any capacity?
A. 19 years, 11 months, and about 14 days.
Allen testified that during "the last part of August" he was told by Ben Robinson,
one of the Respondent's employees, that his fellow employees were seeking union
4 Those in question are : Earnest Boyd, James B Jordon, Ed Langley, George W. Morris,
Donald Paulding, Edqin Perkins, James T Teel, Lawrence Perkins, Walter Perkins,
Meldon B. Newton, Ronald Lee Parker, Theodore Mills, Robert Connardy, Bernice Kemp,
and Willie James Finkley.
6 General 'Counsel's Exhibit No 3.
6 Combined Metal Mfg. Corp., 123 NLRB 895; H. Rohtstein & Co., Inc., 120 NLRB 1556.
1 The witnesses were separated.
BILTON INSULATION, INC . 1303
organization; that he gave Robinson authorization cards to be filled out by the
interested employees and thereafter met with them and received their signed cards;
and that on September 17, 1959, he called on Adolph Bilton, the Respodent's presi-
dent, in the latter's office. Allen testified:
Q. Did you have 'any conversation with him?
A. Yes. I told Mr. Bilton that 'I had the majority of his employees signed on
cards and would like to enter into negotiations with-recognition and enter
into a negotiation.
Q. What did Mr. Bilton say?
A. He said before he would recognize the union he would liquidate.
Q. Was anyone else present at this conversation, during this conversation?
A. There was not.
Q. Was there anything further after that?
A. We had little conversation except that he wouldn't recognize the union
and I left.
According to Allen his visit with Bilton lasted "less than ten minutes."
Adolph Bilton, the Respondent's president, testified that Allen called on him at
his office on September 17 and discussed his desire to unionize the employees with
him, he testified:
By Mr. TOLBERT:
Q. Did Mr. Allen at any time during this interview tell you he had a ma-
jority of the men of your company already signed up?
A. No, sir; he has not mentioned, he has not intimated even that he has been
having some dealings with the men. Not by intimation even.
Bilton's version of the meeting is quite different from Allen's. According rto Bilton:
Mr. Allen came in. He gave me a card on which was his name and the name
of the Union. We exchanged one or two niceties. I asked him to sit down and
asked him what kind of business he has withme or what is on his mind. Then
he stated, I will repeat almost verbatim, Mr. Bilton, I would like to organize
your company into a union shop.
Bilton further testified he then told Allen that personally he was "friendly toward
the union movement" because "I was e union organizer in the past myself" but that
if this plant were organized:
that would cause me to create a condition in my business that I would have
to raise my prices, that I would become overnight uncompetitive, that overnight
I would lose most of my work, that I would have absolutely no chance of
getting new work, that in consequence of my sympathetic approach to the
unions and union organizing that I would just take ,all my men and send them
to green pastures because my company would be forced out of business.
Allen then remarked he had heard this from employees before for the past 25 years
but had yet to see a company go out of business because of union conditions.
Bilton continued 'his testimony:
Now frankly when Mr. Allen made that statement I blew the gasket, and
ordered Allen to leave and not return "unless he is armed with some sort of
warrant of a Federal Agency."
Allen on cross-examination testified:
Q. As a matter of fact, Mr. Allen, when you went there, you told him that
you wanted to organize his plant,and take it in your union, didn't you?
A. No, I don't remember that conversation. I wouldn't go there if I hadn't
had a majority.
I have been at it too many years.
Conclusion
The Trial Examiner is not persuaded that a man who has been a professional
labor organizer fora union as militant as District 50, United Mine Workers of
America, for almost 20 years would in a call upon an employer whose plant he is
attempting to organize , and at a time he was fully armed with a clear signed card
majority, fail to announce his majority status and follow with a request for recog-
nition and a contract , but instead tamely say that he "would like to organize your
company into a union shop."
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record considered as a whole, as well as his observation of the
two witnesses while testifying, the Trial Examiner is convinced that Allen's account
of the conversation between Bilton and Allen on September .17 is the accurate
version thereof.
The Trial Examiner further finds that the conduct of the Respondent as above set
out amounts to a refusal to bargain within the meaning of the Act more particularly
Section 8(a)(5) thereof.
The Trial Examiner therefore concludes and finds that on September 17, 1959, the
Respondent refused to bargain collectively with the Union as the exclusive repre-
sentative of all its employees in the hereinabove described appropriate unit, and
that by such refusal the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the Act.
C. Interference, restraint, and coercion and the second refusal to bargain
1. The incident of the union buttons
Benjamin F. Robinson (the employee who first contacted Union Representative
0. B. Allen) testified that Allen gave him union buttons to distribute among the
employees who had signed cards for the Union and that:
Well, on the morning of the 23rd [of September 1959], I passed them out
to the fellows that had given me the cards, as near as I could remember, the
ones that had given me the card. I passed out the buttons to them. They
were coming and asking for the buttons so fast. Practically nearly everyone
had a button on the 23rd.
Robinson further testified that after the buttons had been distributed, but before
the men left for their various jobs, the Respondent's general manager, Carol
Davenport:
Well, he came down from his upstairs office, to the downstairs office and said
that if anyone wanted to work this morning they should remove the buttons.
Anyone that did not want to remove them, he would have their check made out
as of that moment.
After considerable argument "it was finally decided that everyone would go to work
and it would be discussed later that afternoon." Robinson testified:
TRIAL EXAMINER: Did Mr. Davenport say that, that everyone was to go to
work, and they would discuss it later in the afternoon?
The WITNESS: Yes sir.
TRIAL EXAMINER: Who did he tell that to?
The WITNESS: To the group.
Robinson testified the Respondent had no rule prohibiting the wearing of buttons,
that while at work he wore a Red Cross pin, and at times "a chauffeur's pin for
good driving."
Robinson was corroborated by employees Jodies Raines and Leon Willoughby, Jr.,
the latter further testified without contradiction:
Well, one day I asked Mr. Fitzgerald, two days after, we approached him
with the button to borrow some money from him.
He told me that he didn't let union members have money-those are just
the exact words he said to me.
William Fitzgerald is the Respondent's superintendent of personnel.
Carol Davenport, the Respondent 's general manager , testified that he learned of
the union buttons from seeing them worn by one or two of the employees who
came into his office; that he questioned the employees and then questioned the
others asking:
Just what does this mean, why these buttons? Various ones answered, I
cannot recall which ones it was, said well, this is our union. It was something
to that effect. I said well why are you wearing the buttons? I said this is the
first time that I have heard of it.
He further testified:
Q. Was there any talk about anything also at what time regarding what
would happen if they insisted on wearing them9
A. Well, in the process of the talk back and forth I told them to take it off.
They had received work cards and I told them that they would not be able to
wear these buttons, period.
BILTON INSULATION, INC. 1305
Davenport admitted that his discussion with the employees became heated and that:
Before they went to work the question was whether they would or would not
wear them. I said no they will not wear them. I explained the reason why,
that none of the people that we do work for were union, not a single con-
tractor, and that if they appeared on any of these jobs with any kind of big
display of braggado of where they were members of this union or any union
that we would automatically be thrown off these jobs, we would lose them.
So it seems to me there was words to the effect that well if we don't take them
off, what then? You mean to say we are fired, or we will pick up our pay or
what? I said you can interpret it anyway you like.
According to Davenport, Superintendent of Personnel Fitzgerald then asked the
men "to go ahead and work today until we can sit down and straighten it out or
talk it over." The men then left for their work.
Fitzgerald in his testimony assumed the responsibility for the suggestion that the
men go to work and meet later. He further testified that in the course of his re-
marks to the employees, Davenport said:
Well if you insist on not taking them off then you cannot work with the buttons
on in the State of Virginia or on these jobs because it is not something that we
have authorized as a part of your uniform, therefore we expect that you take
them off, you know.
Fitzgerald testified that before the employees left:
Some of them took off the buttons, some of them didn't. I believe Ben Robinson
kept his on, some of the others. We didn't make it mandatory, we suggested
that they take them off, that it would be the best thing to do, you know, under
the circumstances, to take them off, more or less compromising.
The Trial Examiner finds that the above-detailed conduct by the Respondent is
violative of the Act, more particularly 8(a)(1) thereof.8
2. The Respondent's meeting with the employees-September 23
President Bilton testified that from the time of Union Representative Allen's visit
on September 17, until "Wednesday, September 23, in the morning" he heard nothing
further regarding any union activity among the Respondent's employees from either
the Union or any other source; that on September 23 when he arrived at the plant
as usual "around 9 o'clock" Davenport "related the story" of the union button affair
to him and also that:
Eventually he [Davenport] decided to let the men go out to work any way and
settle the problems in our free time later in the day.
According to Bilton's testimony:
That same day in the morning, sir, after Mr. Davenport informed me of
what happened. One of the men or two of the men, I don't remember how
many, I believe it was Charley Robinson, came to me for a very brief period and
told me that the men would like to meet with me, that in view of what happened
that particular morning my men would like to meet with me. I consented
and I told them that I would be very willing and happy to meet with the men
after working hours around 5 o'clock.
TRIAL EXAMINER: Is Charles Robinson the man that has been referred to in
this hearing as the preacher?
The WrrNEss: Yes, sir; the preacher.
Bilton further testified that at "around 11 o'clock" he left his office "on an appoint-
ment." At a later point in his testimony Bilton volunteered he "spent a good part
of that time" (11 a.m. to 4 p.m.) with his attorney, and that: "We spent the time
discussing the subject and familiarizing myself with legal aspects of the case." When
Bilton returned to the plant at 4 p.m., he found Union Representative Allen in the
warehouse; that Allen told Bilton "that it is his business to be there and talk to
the men"; that Bilton ordered Allen to leave and had the police called when he did
not do so promptly. He testified: "Within two minutes the cruiser of the Arlington
Police and two officers came in . When they came in Mr. Allen stepped out of the
warehouse and walked out on the street ." Following this incident, according to
8 Brown and Root, Inc., 112 NLRB 1068; Graber Manufacturing Company, Inc., 111
NLRB 167; Century Cement Manufacturing Company, Inc., 100 NLRB 1323, 1324.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bilton, he went to his office and there found a letter from the Union.9 The letter
stated that the Union represented a majority of the Respondent's employees and
requested recognition and bargaining. President Bilton testified that the letter had
not been received at the time he left the office at 11 o'clock that morning to visit
his lawyer for a discussion of the labor law and "familiarizing myself with the
aspects of the case."
Union Representative Allen testified that on the morning of September 23, he
asked the Respondent's employees to wear "union buttons"; that later in the day
he learned of the meeting to be held by the Respondent and the employees and
came to the plant in the late afternoon in order to attempt to be present at the
meeting; that on arriving he observed a group of the men talking in a doorway "ten
or 15 feet from the street", and joined them; that Bilton asked him to leave the
premises which he did "within a few minutes, but not before he [Bilton] had called
the Arlington Police." Allen further testified that the letter sent by the Union to
the Respondent requesting recognition and bargaining was mailed September 22,
and also that on the same day, the Union filed a petition for determination of
representatives in the Fifth Regional Office.
The petition 10 is stamped as having been received in the Regional Office
September 22, 1959. The parties stipulated the notice of its filing was received by
the Respondent on September 24. This petition (Case No. S-RC-2904) was "with-
drawn without prejudice" and the Respondent was so informed by the Region on
October 13, 1959, the day following the filing of the charge in the instant matter.
The parties also stipulated that the letter from the Union to the Respondent,
hereinabove referred to, was received by the Respondent on September 22, 1959.
President Bilton testified that the letter came "Special Delivery." The receipt,
however, does not show the time of delivery, other than the date. The receipt for
the letter was signed by Robert H. King, the Respondent's office manager, who was
not called as a witness.
President l3ilton testified that "around 5 o'clock" that afternoon (September 23)
a meeting between the Respondent and the employees was held in the Respondent's
office; that together with the employees the Respondent's office force, office manager,
and Superintendent Davenport, as well as Bilton, were present; that "the spokesman
for the men appeared to be at the time for the men appeared to be at the time
Charles Robinson, otherwise called the preacher," while he (Bilton) spoke for the
Respondent. According to Bilton he first greeted the men, told them he had heard
that they "wore some sort of buttons and that they are anxious to join the union";
that he next told them "according to the laws of the country" they had a "right to
any union of their choosing" and that he "would not take any punitive action against
them." Bilton further testified:
Then I proceeded to tell them also expressing my own opinion upon the
situation at hand. I told them we are doing everything possible to assist you,
we have been doing that. However, now we are facing with a unique situation.
You want to become members of a union. If you want to, it is your privilege.
But if you do and if I have to grant very many additional benefits as the union
may require me to do so , overnight I will become uncompetitive in the business,
I won't be able to get a job. If I don't get a job, you won't get work. If we
don't get jobs, you don't get work, the business will be forced by such a situation
to go out of business. So you just think about it. That was what I told them.
[Emphasis supplied.]
However, immediately before making this statement, according to Bilton:
I believe in the meantime Charley Robinson, acting as the speaker of the whole
group, proceeded to tell me about some of the reasons why they turned to the
union and I of course mentioned to them at the time that from the beginning of
my business I have never failed to receive my men to discuss with them and
take all humanly possible action to improve anything necessary.
Bilton testified that the meeting lasted "30 minutes or so"; that no action was
taken. "We just left."
The Trial Examiner then questioned Bilton as follows:
TRIAL EXAMINER: Mr. Bilton, at the time that Charles Robinson spoke about
grievances that they had, did you say that he spoke to you about it?
9 General Counsel's Exhibit No 2
10 General Counsel's Exhibit No. 3.
BILTON INSULATION, INC. 1307
The WITNESS: He mentioned it, yes.
TRIAL EXAMINER: What did he say, if you remember.
President Bilton then testified that Charles Robinson (the preacher) mentioned that
the men were required to unload trucks without compensation for their work and
that at times men were sent out to wrong locations or with the wrong material and
not paid for the time lost. The question of wages, according to Bilton, was not raised.
He testified further:
TRIAL EXAMINER: Now when he mentioned these two grievances, did you
answer him or say anything about it?
The WITNESS: I believe that I said something to the effect that those two
grievances are of a kind that I don't believe that they should exist to begin with,
that such a condition should not exist under our general practices and under
any proper working conditions, that I cannot understand that this condition
would ever exist.
TRIAL EXAMINER: Did you say anything about correcting those grievances if
you found they did exist?
The WITNESS: I may have, I don't recall, sir.
At the conclusion of the Trial Examiner's interruption the following question was
asked and answered:
By Mr. TOLBERT:
Q. Do you recall whether on that occasion on September 23rd you expressed
any opinion or whether you indicated that you knew that the men had been
unloading the trucks or the trailers?
A. Yes, I knew that they were but I did not know at that particular moment
that they would be told to do such a thing for the company because I do not
expect or never expected the men to perform work and service of any kind
without being compensated.
President Bilton testified that he alone spoke for the Respondent at this meeting,
that Manager Davenport, although present "if he said something it was in the form
of introduction only, nothing more."
General Manager Davenport testified with respect to the September 23 meeting:
Q. Did you have anything to say at that meeting? Did you do any of the
talking?
A. I did some of the rebuttal work. It was more of a debating situation than
it was someone doing the talking. Mr. Bilton had a few words to say and
Charley Robinson and Ben Robinson, and as they would bring up questions these
questions would be answered in turn.
Q. What was the nature of their questions ? I mean what they were talking
about?
A. Complaints.
Q. About working conditions?
A. About working conditions.
He corroborated Bilton's testimony that the men were told "they had a perfect right
to join the union," and that no conclusion was reached at this meeting "as to what
was to be done."
Employee Benjamin F . Robinson (not to be confused with Charles Robinson, "the
preacher," who did not testify) testified with respect to the above meeting that
President Bilton told his audience "he was not telling us not to join the union "
However, if we did join a union it would probably mean that the company
would have to go out of business. He told us that the company did about
$750,000 worth of business, yet they were only able to net approximately $3,000.
According to Robinson:
As I remember, Mr. Bilton talked for the first ten or fifteen minutes, and I
personally attempted to interrupt or make a statement rather. I said, "Mr. Bolton
we came up here this afternoon under the impression that the company would
hear our grievances, and instead of that we are hearing the financial status of
the company."
That Charles Robinson then " read off" some of the things that we discussed for a
month ; that the grievances raised were t hen analyzed and discussed singly. Robinson
further testified:
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We went back then and began to discuss them singly, things such as increase in
pay, unloading of trailer trucks in the morning without compensation. Just
most of the conditions that existed relative to our work there.
According to Robinson "it was decided" that a committee representing the men
should meet at a later date with the Respondent.
Robinson corroborated by Union Representative Allen, testified that this com-
mittee had been chosen by the employees during the organizational effort sometime
before September 23.
Employee Edward Alfred testified that at the September 23 meeting President Bil-
ton stated the employees had a right to join a union. However, as to this statement
Alfred testified, "I can't say verbatim, but in essence I heard him say . . . ," but he
then testified further without any qualification:
Q. Did he tell them that he would go out of business if they joined the union?
A. He mentioned this: he said that we have a situation here where no other
insulation company is unionized in this area, that if I go in to bid for a house with
the union, the fact that we have the union probably means we have to pay more
to have additional benefits. If I go and estimate a house, say, for $62, or maybe
another man comes and bids for $62, the man-let's see now. If I bid for $62,
and say that $42 is normally bid to do the house, that by having my scale higher
than the normal business for that area, nine times out of ten I would not get the
job. And being that situation, I just can't keep it up. I would have to go out
of business.
This testimony was on cross-examination. The Trial Examiner finds it revealing,
to say the least, that the economic statements made by President Bilton remained so
well fixed with the witness.
William Fitzgerald who described his position with the Respondent as "superin-
tendent of the working personnel," testified that he attended the September 23, meet-
ing; he corroborated President Bilton's testimony to the effect that the employees
were told they had a right "as American citizens" to "unionize if they choose," how-
ever, he did not quite agree with Bilton's full account of the meeting. Fitzgerald
testified:
9. Did any of the working men point out any of the things that they were com-
plaining about?
A. Charley Robinson served as a spokesman for the men to air some of their
grievances, and he had listed, oh, a half dozen grievances. Primarily I do most
of the supervising and make most of the decisions that are of a minor nature and
I was in a better position to answer some of the accusations that he had made
and give reasons why and the wherefores concerning these complaints. As he
would give a complaint I would answer it and explain to him why.
Fitzgerald further testified that Bilton told the employees:
if they had union representatives or something, he could not discuss it with them
or something. I don't remember clearly in my mind as to just what the final
outcome of the meeting was. I don't think any particular conclusion was
reached at that time.
Conclusion
From President Bilton 's account of the meeting as well as the versions of the other
witnesses which "amplified" his testimony it is quite clear that although Bilton's
remarks began with a correct statement of the law with respect to the right of em-
ployees to join a union, this was followed by a much more complete airing of griev-
ances than Bilton professed to recall and that his remarks contained a statement as
to the economic consequences of a union organization on the Respondent's business
so foreboding that its memory was lasting.
President Bilton of course freely testified that he told the employees that a union
would virtually destroy the business, however, his actual statement is not at all clear
in the record but that he in effect stated quite plainly and effectively that should a
union be formed the plant would be unable to get business and the employees would
be without jobs is undeniable.
Employee Robinson's testimony that President Bilton's talk to the employees con-
tained the statement "that the company did about $750,000 worth of business, yet they
were only able to net approximately $3,000" was not denied. Bilton's testimony was
quite detailed but apparently a statement as startling as this was not considered
worthy of denial despite President Bilton's former testimony that:
BILTON INSULATION, INC. 1309
some of our employees who were basically men without any previous ex-
perience until they came to work for us, their salary ranges anywhere between
$3,800 and $8,000 a year.
Q. Have applicators actually received as much as $8,000 per year working
exclusively for your company applying insulation?
A. Yes, sir.
President Bilton is known to the employees as the owner and active head of the
Respondent's business. A statement by him to the effect that should the employees
form a union the Respondent would be forced out of business and they would have
no jobs was clearly not, nor could it have been intended to be, a mere expression of
opinion, quite the contrary, it was nothing more nor less than a threat, therefore on
the entire record, and his observation of the witnesses the Trial Examiner finds that
President Bilton's above statement as made on September 23 and as hereinabove
found was conduct prohibited by the Act.
3. The Respondent's meeting with the employee committee on September 26
President Bilton testified 11 that on the "24th or so" Charles Robinson (the
preacher) and "perhaps also Edward Alfred" asked for a meeting between Bilton and
a "so called negotiation committee" of the employees; that he consented and set the
time for the following Saturday morning (September 26); that at the agreed time four
of the five men who comprised the committee, namely, Charles Robinson, Benjamin
Robinson, Edward Alfred, and Joe Allen, met with him for about an hour in his
office; and that Davenport also "sat in."
According to Bilton most of the speaking was by Charles Robinson, (the preacher)
who "inumerated a few things and incidents and happenings" as the men's grievances.
As to the grievances, Bilton testified that Charles Robinson raised "the question of
unloading trucks" without pay and that he (Bilton) then told the committee:
. that I do not want to see any of the regular laborers being made to
unload without compensation.
If they could be made to unload, they should be compensated for their work
because they lose their time and they lose the chance to earn money elsewhere
in installing insulation.
The second matter raised was the matter of sending men to jobs "with an erroneously
prepared card," Bilton testified:
I hit the ceiling with Mr. Davenport to an extent and I told him this should
not happen in a well organized company, that when salesmen prepare work cards
that work cards should be very implicit and to the point and know exactly what
the men ... .
I feel and I would always feel that the men should be compensated for it
because it is a case of injustice with the man.
The Respondent had paid 1 cent per foot to the "installers" for placing insulation,
however, the "installer" received only nine-tenths of a cent, the remaining one-tenth
cent going to his foreman. Bilton testified the committee stated the "installers"
felt "they should be getting the full penny" and
I again fully agreed with them because this was a perfectly logical thing
for me because we had before arrangements with the men that the scale of pay
would be adjusted according to every individual job. We kept adjusting and
I told the men on that committee and also Mr. Davenport that from now on I
would like these things formalized and expressed in words and our superin-
tendent notified that such things would not happen in the future in our
organization.
Bilton testified that the committee asked for vacations with pay, that:
I again felt that this is a very legitimate request on their part, that some
of the men working for me quite a few years they deserve a few days rest and
if the company can afford it well give it to them.
"Although Bilton's testimony is here and on other Incidents the first alluded to, he
testified after the General Counsel's case had been presented and was present at all times
under the separation rule as Invoked
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bilton further testified:
I believe and I recall exactly that I pointed out to that committee that they are
given these things because I feel they are absolutely just. I believe that the
men are entitled to them and they are entitled to them immediately, not wait-
ing for any outcome and that regardless of what the future may bring those
are the benefits that they have, that they still retain their constitutional right
to organize if they choose to.
General Manager Davenport testified that Bilton telephoned him at 6 p.m.,
Friday, to attend the above-mentioned meeting on the following morning; that he
did not know who requested the meeting. As to the meeting he testified:
Well, it was an enlargement of complaints that the men had evidently as
brought forth before this committee which the men had appointed at some
earlier date. I have no idea how this committee came into being.
Q. I see. Were there a certain agreement reached between Mr. Biiton and
you on the part of the management and these four men on the part of the
employees as far as changing any of these conditions?
A. I would say basic understandings were reached; yes.
Both Bilton and Davenport testified that Fitzgerald did not attend the meeting.
Fitzgerald also so testified. The Trial Examiner credits the testimony regarding
Fitzgerald's absence from the meeting and finds that any testimony to the contrary
is erroneous.
Of the four committee members at the September 26 meeting only employees
Benjamin F. Robinson and Edward Alfred testified. With respect to the grievance
discussions only Robinson testified. His account being different from that of
President Bilton 's. According to Robinson:
Mr. Davenport had a sheet of paper from which he read where some
adjustments would be made, like for instance, travelling time. We would re-
ceive compensation for travel time, and that if we would have to unload
trailers, we would be paid on an hourly rate.
Q. Were those two separate things, travel time and unloading the trailers?
A. Yes, that the pay would be increased. The payroll on installing insula-
tion would be increased from $9.00 a thousand to $10.00 a thousand, that we
would be given vacations, one week with pay for employees with a year or
more service. Charlie Robinson had a paper, and they would compare the
papers. Most of the things Mr. Bilton agreed to give us rather than take out
some, as Mr. Davenport had proposed.
Robinson further testified that sometime after the meeting a notice was posted to
the effect that:
. . . the employees would be eligible for vacation. It also stated the pro-
posed increase in wages and the elimination of the trailer unloading.
According to Robinson's undenied testimony the proposed benefits have been put
into effect. It is of interest to note that the Respondent argued:
As to the company, if it had been paying one cent per foot or one dollar per
thousand feet prior to September 26th, of which nine-tenth to the superin-
tendent, if by this change the full dollar per thousand feet was retained by you
and none of it was paid to the superintendent, it was a reallocation of the
same wages that it had been previously paying, . . . [Emphasis supplied.]
Conclusion
The Trial Examiner finds that by meeting with a committee of its employees to
discuss grievances, and granting benefits, including pay raises, vacations, and im-
proved working conditions such as travel time and the elimination of required un-
paid work, at a time when the Respondent had been informed orally and in writing
that the Union represented and in fact did represent its employees, the Respondent
has engaged in conduct violative of the Act, more particularly Section 8(a) (5)
thereof.
4. The letter withdrawing from union membership
Further with respect to the meeting with the "negotiating committee" President
Bilton testified:
By Mr. TOLBERT:
Q. Did there come a time during the course of that meeting on September
26th that there was any conversation by anyone regarding withdrawing from
the union?
BILTON INSULATION, INC . 1311
A. Well, I believe at the close of that meeting, especially after I stated that
the union activities of my men is entirely their responsibility , their decision, and
their will, that I do not want under any conditions ever to interfere with that
will of my men . Some of the men present , it may have been Charles Robinson,
it may have been Joe Allen , said but now we want to get rid of the union.
The union is not doing us any good . They turned to me and said , Mr. Bilton,
would you prepare some kind of a letter ? I answered emphatically that I
would not prepare , I do not care to mix into it, that is not my responsibility;
I don't in fact want to know anything about it because I have nothing to do at
this time with the union and certainly I cannot express the men 's thought or
anything.
According to Bilton:
Charles Robinson the preacher who is a person who can talk well and nicely
because he had done lots of preaching , so he turned to me. Mr. Bilton would
you allow your secretary to type out a letter for me.
I told him then as far as any kind of typing only is concerned that you are
perfectly all right to use my facility , my typewriter in the office of my secre-
tary to type out for you. I also told him if he has anything to type, if he
wants to dictate anything I told Mr. Davenport to give instructions to our
secretary, to Mrs. Patricial Treger to type out anything that Charles Robinson
may want her to type out.
After that final statement and request directed to Mr. Davenport all the men
left my office . That was the end of the meeting on the 26th of September.
[Emphasis supplied.]
General Manager Davenport testified that after the meeting between the Respond-
ent and the "committee" was over, Charles Robinson ( the preacher ) asked "if they
could use a typewriter or something back in the office." Davenport testified:
Mrs. Treger says I will be glad to type it for you if you would like.
Q. Who did he make the request to, Charles Robinson?
A. About using the typewriter or something?
Q. Yes.
A. To me.
Q. He did?
A. Yes.
Q. Was anyone else present when he made the request?
A. Mrs. Treger was present in the office at the time.
Q. Was Mr. Bilton there?
A. Mr. Bilton was not there... .
This version of the incident is of course quite different than Bilton 's.12 On further
examination the differences between the accounts of the two officials of the Respond-
ent became more apparent:
TRIAL EXAMINER : Didn't Mr. Bilton say to any of these men , if you need
someone to type this letter you are perfectly welcome to use our secretary or
facilities or anything like that?
The WITNESS : I didn't hear him say that.
TRIAL EXAMINER : Did he say to you, you can have the preacher , that is the
man referred to?
The WITNESS : No, sir
TRIAL EXAMINER : You can have the-
The WITNESS : No, sir.
TRIAL EXAMINER : You don't know what I am going to ask you.
The WITNESS : You said you can have the preacher.
TRIAL EXAMINER : His name is Robinson , the preacher . Did he say to him or
did he tell you you can have the preacher dictate whatever he wants to to one
of the secretaries , one of the girls, naming them , and she will write it for him?
The WITNESS : Mr. Bilton didn 't even know the secretaries were still in at
that time.
Davenport testified that Robinson dictated to the secretary while in Davenport 's office
and that thereafter:
Mrs. Treger when she typed the paper up typed them back in the front office
which is a couple offices back from my own office and when she finished with
^ It should be remembered that the witnesses were separated.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them I don't know whether she gave them all to Charley Robinson or what she
did with them.
Davenport 's cross-examination closed as follows:
Q. Did you see Mrs. Treger give him this? (The "letter" R. Ex. #33.)
A. No, sir.
Q. You don't know then whether he actually walked out with a letter?
A. I didn't say that in previous testimony.
Q. I didn't say you did. I am asking you whether or not you know if he
walked out with it?
A. No, sir.
Mrs. Treger was not called to testify.
Benjamin F. Robinson, testified that he left the meeting when it adjourned; that
nothing was said prior to the meeting's adjournment regarding the preparation of a
letter withdrawing from the Union; that he heard nothing regarding it until "the
following Tuesday morning."
Bilton testified that Benjamin Robinson was present at the time "the preacher" re-
quested the use of facilities in order to prepare a letter of withdrawal from the Union.
On the entire record, and from his observation of the witnesses, the Trial Examiner
credits Benjamin F. Robinson and finds that he was not present when such a request
was made.
Edward Alfred, the only member of the "negotiating committee" other than Ben-
jamin F. Robinson called as a witness, testified with respect to the Saturday morning
meeting herein referred to, that:
After the meeting was over, Joe Allen, Benjamin Robinson was up there, and
myself. Benjamin Robinson, Joe Allen and I left the premises. Charlie
Robinson remained there to have the office type up some kind of agreement
for us to sign, . .. .
According to Alfred; "Joe Allen, Charlie Robinson and myself" had agreed
"Friday night, before the Saturday meeting" that they would draw up "something
that we did not want the union representation." He testified: "Otherwise we wouldn't
have been up there." This cryptic remark is not explained, however Alfred continued
that he told "Allen Tyson and a few other fellows" to sign the document and told
Carter 13 "before we went up in this building office on Saturday morning." Alfred
admitted: "Well I didn't see anybody draw it up but "Preacher," that is what Charlie
Robinson is called around the office said he would draw up an agreement, if he could
get somebody to draw it up for him," because "we left and he said he would go in
the office and do that"; that after he left "I didn't see `Preacher' until Monday."
Alfred further testified that at the ending of the working day, Monday, September
28 (clearly before he saw "Preacher"), he came into the office of William Fitzgerald,
where all the men receive their work assignments , Fitzgerald making the assign-
ments. According to Alfred while in the office he saw a "paper" 14 on Fitzgerald's
desk; the "paper" apparently the document referred to in Davenport's testimony as
having been dictated by Charles Robinson (the preacher) after the September 26
meeting reads:
SEPTEMBER 26, 1959.
UNITED CONSTRUCTION WORKERS,
REGION 18 OFFICE,
1435 K Street, N.W.,
Washington 5, D.C.
GENTLEMEN : We the employees of Bilton Insulation, Inc., 2708 S. Nelson
Street, Arlington, Virginia, have decided among ourselves that we do not wish
to negotiate any further with the United Construction Union to act as bargaining
agents for us, therefore, we hereby cancel any prior commitments.
A copy of this decision is being forwarded to the National Labor Relations
Board.
Yours very truly,
EMPLOYEES OF BILTON INSULATION, INC.
(27 signatures appended.)
Alfred testified:
Q. (By Mr. Westcott.) Was Mr. Fitzgerald there when you signed?
A. He was there.
13 Apparently Dennis Carter, whom the Respondent claims as a supervisor.
76 General Counsel's Exhibit No. 33-Respondent's Exhibits Nos. 2 and 3.
BILTON INSULATION, INC . 1313
Q. Did he say anything to you about that document?
A. No, it was up on the desk, just as these papers are there, and I read it,
and encouraged the other fellows to sign it.
Alfred testified that when he signed the paper, Fitzgerald was talking to employee
Johnnie Hart, who had been named one of the "negotiating committee ," but had not
been present at the Saturday meeting, but "I don't know what they (Superintendent
of Personnel Fitzgerald and Hart) were talking about"; that Fitzgerald said nothing
to him (Alfred) about the document; that he signed "because I knew I was supposed
to sign it"; the knowledge coming from his understanding after having read the
document he had taken from Fitzgerald's desk.
Apparently quite surprised by Alfred's testimony the General Counsel confronted
him with an affidavit he had made before a Board agent , upon which, after consider-
able evasion and a patent attempt by the witness to create the impression he did not
understand and that he felt his confidence had been betrayed, Alfred admitted that
he heard Superintendent of Personnel Fitzgerald read the document in question to
employee John Hart, but "I signed before Johnnie Hart, before he read it to Johnnie
Hart."
Superintendent of Personnel William Fitzgerald testified that at 6:30 a.m., Monday,
September 28, when he first arrived at the plant he found the "letter" above referred
to on his desk; that he had not attended the Saturday meeting and had not "received
any communication from anybody about the 'meeting" over the weekend; that he
picked up the letter on his desk, read it, "grasped the meaning," then put it on the
"counter" which is a shelf built over the front of his desk and accessible to all.
He testified:
I layed it up there because it was concerning the men and any of the men
who had a desire to sign this, who felt this way about it, it would be there for
them to sign.
TRIAL EXAMINER: Was it your business to see that the men signedthat thing?
The WITNESS: No, it was not.
TRIAL EXAMINER: Was it your business to see that it was out there so the
men could see It?
The WITNESS: Was it my business?
TRIAL EXAMINER : Yes, so the men could get at it to sign it? You can answer
that yes, or no.
The WITNESS: I have to think about it.
TRIAL EXAMINER : If you have to think about it, what is the answer?
The WITNESS : If I have to think about it .. .
He also testified:
Q. (By Mr. Tolbert.) At the time you first saw it did you know any of the
background as to how it got on your desk or who wrote it or why it was there?
A. Well, I didn't give it a thought as to who wrote it or why it was written,
why it is here. As far as who wrote it, no.
Fitzgerald testified that he read the "letter" to "a group" of the employees because
"In my position as superintendent,"
. I have become a friend or person that they can turn to for certain, you
know, guidance along certain lines. So they asked me, well, would you read it
or would you explain this to us. So I read it aloud for them.
He testified however that he read the letter "only one time" and that this was at the
request of "a fellow by the name of Abner Saunders," and thdt he did not read the
letter to John Hart, "as an individual"; that he "did not remember" if Hart was
present when he did read it aloud to "the group." Fitzgerald further testified:
After I finished reading it , I said you can sign it if you want to. If you don't
want to sign it, as far as I personally am concerned it does not make any
difference.
Fitzgerald "not to discuss the Union, to try to persuade the men or to try to use
how many copies there were or how many copies were signed. According to Fitz-
gerald about 9 a.m., after Bilton arrived on Monday, September 28, he instructed
Fitzgerald "not to discuss the Union, to try to persuade the men or to try to use
influence one way or the other"; however "despite his (Bilton's) instructions I did."
Employee Jodie Rains testified that "Monday or Tuesday" when he came in from
his job, the letter of withdrawal was on Fitzgerald's desk; that Fitzgerald "asked me
586439-61-vol. 129-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was I going to sign the paper"; that "I went on and signed the paper"; that Foreman
Charlie Free was also present when he signed.
Dennis Carter, testified that he saw the withdrawal letter on the "counter" of
Fitzgerald's desk; that "somebody" had said that morning "they wanted to sign the
paper so I just went up and signed it"; that either Fitzgerald or "Assistant Superin-
tendent" Tommie Johnson was present when he signed.
"Committee member" Benjamin F. Robinson testified that ",two or three days"
after the September 26 meeting he saw the withdrawal letter on Fitzgerald's desk,
was -asked to sign by Fitzgerald, and did so. Robinson testified:
Q. (By Mr. Wescott.) Mr. Fitzgerald asked you to sign it?
A. Yes.
Q. And what did you do?
A. Well, I read it, and after seeing most of the names on there, I said I don't
think I should. He said, well, it would be better if you did sign it because most
of the men have signed it, and you will be standing alone, more or less, if you
don't sign it.
Q. So then you signed it?
A. Yes, I did.
Both Robinson and Carter testified they signed only one copy of the withdrawal
letter. The record is silent as to how the "letter" got to or away from Fitzgerald's
desk.
President Bilton testified that on September 29:
The preacher came to me and brought three copies of that letter. I glanced at
the copies. I read what it said. I looked at the signatures, I smiled, I turned it
back to Robinson.
According to Bilton, ".the preacher" then asked that Bilton send one copy to the
Union, which Bilton refused, he was then asked that a copy be sent to the Board,
which Hilton agreed to do.
Neither the Union nor the Board received a copy. The Board's Exhibit No. 33
was apparently obtained during the investigation.
The matter of the signatures in triplicate and the disposition of the three copies
of the letter, other than that they may all have remained with the Respondent, was
not satisfactorily explained.
Conclusion
The Trial Examiner was not impressed with Fitzgerald as either a credible or
reliable witness. 15 Benjamin F. Robinson upon whose testimony the General
Counsel relied, created quite the contrary impression and is considered by the Trial
Examiner to be a wholly honest and forthright witness. Raines created a favorable
credible impression. The Trial Examiner does not credit Fitzerald and therefore
upon the entire record herein finds that Director of Personnel William Fitzgerald
urged the Respondent's employees to sign the "letter" which in effect was a with-
drawal from the Union and further finds upon all the circumstances of the case that
his conduct in so urging the employees to sign the document and his other conduct
with respect to the "letter" as herein detailed clearly amounted to unlawful inter-
ference, restraint, and coercion within the meaning of the Act.
As to the preparation of the "letter" after the September 26 meeting between the
Respondent and the "committee," it is the considered opinion of the Trial Examiner
that all the evidence considered as a whole clearly indicates that the "withdrawal
letter" was not the spiritual creation of Charles Robinson, "the preacher," any more
than it was his physical creation, in actual typing.
As indicated herein neither Mrs. Treger, who according to the Respondent took
the dictation from Charles Robinson, nor Robinson, who also could have cast
considerable light on the event, was called as witnesses.
The Trial Examiner therefore finds that the "withdrawal letter" was instigated,
prepared, and foisted on its employees by the Respondent and was intended to
dissipate the Union's majority representation among them.16
The Trial Examiner finds that by its conduct with respect to the "withdrawal
letter" as found on all the evidence, all the circumstances herein, and from his ob-
servation of the witnesses, the Respondent engaged in conduct violative of the Act,
15 See Jackson Maintenance Corporation . 12(1 NLRB 115, footnote 1
"Mindful of Charles Robinson 's apparent avocation, the Trial Examiner recalls
Genesis 27: 22.
BILTON INSULATION, INC . 1315
more particularly Section 8 (a)(1) thereof ,17 inasmuch as an employer cannot decide
for himself whether a union has lost its bargaining status and deciding that it has
refused to deal with it . Therefore the Trial Examiner further finds that the "with-
drawal letter" did not in any way effect the Respondent 's duty to bargain with the
Union.18
Concluding Findings
The Trial Examiner finds that by threatening its employees with discharge if they
wore union buttons, by stating to its employees that its business would be closed in
the advent of the unionization of its employees , and by causing a "letter of with-
drawal" to be prepared and signed by its employees , the Respondent has interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act and has thereby engaged in and is engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
The Trial Examiner further finds that by refusing to bargain with the Union on
and after September 17, 1959 , the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent interfered with, restrained, and coerced its
employees by the conduct enumerated herein, the Trial Examiner will recommend
that the Respondent cease and desist from this and any other like or related conduct.
Having found that the Respondent refused to bargain in violation of the Act, it
will be recommended that upon request, the Respondent bargain collectively with
the Union and, if an understanding is reached , that such understanding be embodied
in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Bilton Insulation , Inc., is and has been at all times material
herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. United Construction Workers, Division of District 50, United Mine Workers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
3. In order that the employees of the Respondent may have the full benefit of
their rights to self-organization and bargaining and otherwise to effectuate the policies
of the Act, "all warehouse employees , truckdrivers, insulation applicators , and skilled
and unskilled laborers employed at Respondent 's Arlington , Virginia, plant; excluding
all office clerical employees, guards, watchmen , professional employees, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9, subsection (b), of the Act."
4. The Union, United Construction Workers, Division of District 50, United Mine
Workers of America, was on September 17, 1959, and at all times since has been
the exclusive representative of all employees in the aforesaid unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after September 17, 1959, and again on September 23, to
bargain collectively with the aforesaid Union as the exclusive representative of the
employees in the aforesaid appropriate unit , the Respondent has engaged in and
is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of
the Act.
17 Birmingham Publishing Company, 118 NLRB 1380; The Juvenile Manufacturing
Company, Inc, 117 NLRB 1513
19 See N.L.R. B. v. Sanson Hosiery Mills , Inc., 195 F. 2d 350 (C.A. 5).
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By the conduct detailed as violative of Section 8(a) (1) of the Act in section III,
above, and by the aforesaid unfair labor practice found in subsection 5, above, the
Respondent has been and now is interfering with , restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act , and the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Kickert Brothers Ford , Inc. and Automobile Mechanics Lodge
No. 701 , International Association of Machinists , AFL-CIO,
Charging Party. Case No. 13-CA-3567. January 13, 1961
DECISION AND ORDER
On July 27, 1960, Trial Examiner Eugene E. Dixon 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 the Respondent cease and de-
sist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief. The General Counsel submitted a brief 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, Jenkins, and Fanning].
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
Intermediate Report, the exceptions and the briefs, and the entire
record in this case , and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
I We do not agree with the Trial Examiner that by rescinding its proposed cut in the
mechanics ' share of the labor costs charged to customers after the Union had signed up a
majority of the Respondent ' s employees , the Respondent committed an independent viola-
tion of Section 8(a) (5) of the Act The proposed wage cut was never put in effect and
hence did not become one of the terms or conditions of employment concerning which the
Respondent was under obligation to bargain . However, as the Respondent , but for the
designation of the Union as the bargaining representative of its employees, would have put
the proposed reduction in the mechanics ' share in effect, we find that by refraining under
the circumstances from doing so the Respondent interfered with, coerced , and restrained
employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation
of Section 8(a)(1).
129 NLRB No. 160.