Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 495 (N.L.R.B. 1965)

CERTAIN-TEED PRODUCTS CORPORATION 495
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT threaten our employees with termination of our contract with
Rexall Chemical Company thereby threatening them with loss of their jobs if
they vote for the union; warn them to refrain from engaging in union activities;
or create the impression of surveillance of the union activities of our employees
by warning them that our supervisors have instructions to keep their union activ-
ities under observation.
WE WILL NOT discourage membership in or activities on behalf of General
Teamsters, Chauffeurs, Warehousemen and Helpers, Local 583, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, by discharging any of our
employees or in any other manner discriminating against our employees in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights under Section 7 of the Act.
WE WILL offer to J. W. Love, Charles Ray Love, and Rex G. Maxwell
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges, and
make them whole for any loss of pay suffered as a result of the discrimination
against them.
All our employees are free to become and remain, or to refrain from becoming
or remaining , members of the above-named Union or any other union.
REF-CHEM COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their rights to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
Certain-Teed Products Corporation and United Stone and Allied
Products Workers of America, AFL-CIO, CLC. Cases Nos. 16-
CA-2059 and 16-CA-2153. June 25,1965
DECISION AND ORDER
On March 25, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in his attached Decision. The Trial Examiner further
153 NLRB No. 44.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that the
complaint be dismissed with respect thereto. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions,) and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Respondent, Certain-Teed Products Corporation, Hillsboro, Texas, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order
1 In the absence of exceptions thereto, the Board adopts, pro forma, the Trial Examiner's
finding that Respondent did not violate Section 8(a) (3) and (1) of the Act in discharging
Alton Allen.
2 The telephone number for Region 16, given below the signature line at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended to read* Telephone
No. 335-2145.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated complaint 1 under Section 10(b) of the National Labor Rela-
tions Act, as amended (herein called the Act), heard before the Trial Examiner
Joseph I. Nachman at Hillsboro, Texas, on October 20 and 21, involves allegations
that Certain-Teed Products Corporation (herein called Respondent or Company),
violated Section 8 (a) (1) and (3) of the Act by coercing and restraining its employ-
ees, and by discriminating against them because of their adherence to and support
of United Stone and Allied Products Workers of America, AFL-CIO, CLC (herein
called the Union).
At the hearing the parties were represented by counsel who were afforded full
opportunity to present evidence, to examine and cross- examine witnesses , to argue
orally on the record, and to submit briefs. Oral argument was waived. Briefs sub-
mitted by the General Counsel and Respondent, respectively, have been duly
considered.
Upon the entire record in the case,2 including my observation of the demeanor
of the witnesses while testifying, I make the following:
)Issued October 9, upon charges filed June 5 and 8, July 10 and 31, and October 7.
All dates mentioned herein are 1964, unless otherwise noted.
2 The General Counsel has filed with me, and served upon all parties, a motion to
correct record, which I have marked "TX Exhibit A," and make the same as part of the
record herein. No opposition to the aforesaid motion has been received ; the requested
corrections are proper ; and I now grant said motion in its entirety.
CERTAIN-TEED PRODUCTS CORPORATION 497
FINDINGS OF FACT 3
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Respondent operates a number of plants in various States, but the only plant
involved here is located at Hillsboro, Texas. Construction of that plant began in
1960, and manufacturing operations began sometime in 1961, under the name of
Keasbey & Mattison Company. Since about June 1, 1962, the plant has been oper-
ated by Respondent. On July 26, 1962, the Board conducted an election which
resulted in no collective-bargaining representative being selected.4 In June 1963,
an amended complaint alleging violations of Section 8(a)(1), (2), and (3) of the
Act issued against Respondent. A subsequent amendment added an allegation that
Respondent also violated Section 8(a)(4) of the Act. After the usual proceedings,
the Board found (147 NLRB 1517), that Respondent had engaged in extensive viola-
tions of Section 8(a) (1), and had violated Section 8(a) (2) by forming and dominat-
ing the Employee Suggestion Committee. The violations of Section 8(a)(1) found
by the Board consisted, in substance, of (1) interrogation of employees concerning
their Union adherence and activities; (2) engaging in surveillance or giving the
impression thereof; (3) threatening reprisal against employees for testifying at a
Board hearing; (4) prohibiting employees from engaging in solicitation in connec-
tion with their union activities during nonworking hours; and (5) interfering with
the Board's processes by advising employees that they need not give information to
Board agents.
On May 28, the Board again conducted an election among Respondent's employees
on a petition filed by the Union. The General Counsel contends in the instant case
that certain conduct by Respondent, both before and after the election, interfered
with, restrained, and coerced employees in the exercise of their Section 7 rights, and
that certain employees were discriminatorily discharged or reduced in pay.
B. The current facts
1. The alleged preelection restraint and coercion
a. Interrogation as to prior union membership
In the latter part of 1963 and in early 1964, Respondent hired a number of new
employees. Employee Jerry Gordon testified in substance that at the time of his
employment on January 16, 1964, he was interviewed by Personnel Director
Langford who asked whether he (Gordon) had ever belonged to a union, and
commented, "We do not want any Union here." Employees Travis Farquhar and
Roger Omberg, hired February 24 and March 12, 1964, respectively, testified to the
same effect.6 Langford admitted that when interviewing prospective or newly hired
employees, the matter of a union is usually discussed, but he gave a different version
of the conversation, stating what he claimed is the set procedure followed in inter-
viewing prospective employees. The first portion of the interview is devoted to
obtaining the applicants' work history, and if hiring is indicated, the applicant is
sent for a physical examination. After the physical the applicant returns to Langford
for further interview, in the course of which, Langford claims, the applicant is asked
if he has any qualms or objections to working in a union or nonunion plant. Lang-
S No issue of commerce or labor organization is presented The complaint alleges and
the answer admits facts which adequately establish both elements . I find the facts as
pleaded. Moreover , the Board has heretofore asserted jurisdiction over the Respondent
in a case based on a charge filed by this Union, and Involving the same plant which is in-
volved here. See Certain-Teed Products Corporation, 147 NLRB 1517, to which reference
will hereafter be made.
4In that election the employees had a choice between the Union involved in this pro-
ceeding, the Gypsum Lime and Cement Workers, or no union . Of approximately 100
eligible voters, 41 votes were for the Union, no votes for the Gypsum Workers ; 50 votes
for no representation ; and 7 ballots were challenged . No objections to the election were
filed.
5 The complaint , insofar as it alleged violations Section 8(a) (3) and (4), was dismissed.
9 Ronnie Kennedy and Alton Allen, hired November 11 and October 14, 1963, respec-
tively, gave similar testimony . However, as the events referred to by them occurred more
than 6 months prior to the filing of the original charge herein on June 5, 1964, no finding
Is made with respect thereto.
796-027-----66--.-vol. 15 3-3 3
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ford also admitted that "on occasion" he may have asked an applicant about his
prior union activity, but that such would be infrequent because he is aware that to
do so is a violation of the law.7
b. Interrogation during organizational campaign
On or about January 17, 1964, employee Edwin Shaffer was treated to lunch by
Union Representative Shippey who was in charge of the Union's organizing cam-
paign at Respondent's plant. While at lunch they were observed by two manage-
ment officials of Respondent. A few days later Langford met Shaffer as the latter
was reporting for work and commented that Shaffer was not particular as to whom
he lunched with. Shaffer replied that Shippey promised to take him to lunch and
he went Langford then stated "I do not care what you do, or what you say, but
you make up your own mind." Shaffer replied that he had a family to support and
could make his decision as to what he wanted to do.8
c. Alleged surveillance
Respondent's plant faces a limited access highway which runs in a generally east-
west direction. The plant is south of this highway. Parallel to and between the
highway and the plant, is a service road which affords access to the property of
Respondent and others. In front of, but adjacent to the plant proper is a guardroom 9
through or by which all persons entering or leaving the plant from the front must
pass. The guardroom faces north overlooking the service road and the highway.
On the north side of the guardroom is a full length glass door and a window. From
the guardroom to the access road is approximately 200 to 300 feet. At the west
end of the service road there is an exit, at which one must stop, affording access from
the service road onto the main highway. The distance from the guardhouse to the
stop sign at the aforesaid exit is not shown in the record, and while it is apparently
some distance away, the record is clear that the stop sign is visible from the
guardroom.
Union Representative Shippey began his current organizing campaign in late
November or early December 1963. At that time, in an effort to communicate with
employees, Shippey stationed himself on the service road directly in front of the
guardroom, at a shift change hour. Shippey credibly testified that a few days after
he first appeared at the plant, he noticed that Langford would come to the guardroom
and observe the employees as they passed where Shippey was stationed; that he then
moved down by the stop sign controlling the exit from the service road onto the
main highway, at which point he continued to station himself until about a month
before the election, and that when he was stationed at this point Langford regularly
came to the guardroom when the shift changed and watched what was taking place
at the stop sign. On one occasion , according to Shippey, he and a fellow union
representative used binoculars to more closely observe Langford in the guardroom,
and when the latter saw this, he (Langford) thumbed his nose at them. Since the
election, according to Shippey, he has observed Langford in the guardroom only on
rare occasions. Employees also testified that during the Union's campaign they
observed Langford in the guardroom when Shippey appeared on the access road near
the plant, but that since the election they have observed him in the guardroom
infrequently.
Langford did not deny that he frequently visited the guardroom as Shippey testi-
fied. In fact he admitted it, but contended that such visits were not to observe the
employees or give the impression that their contacts with Shippey were under surveil-
lance. He testified that the guard force, which changes shifts at the same time as
the plant employees, is under his supervision; that he goes to the guardroom, or to
the gate adjoining the guardroom, in routine fashion an average of two or three times
daily to talk to or to leave instructions with the guard, or to talk to a caller at the
gate that he does not wish admitted to the plant; that Shippey's presence in the vicinity
was a routine event which had been going on for about 21/2 years; that such event
meant nothing to him and had no bearing on his visits to the guardroom. Although
Langford testified after Shippey, he did not deny Shippey's testimony about the nose
thumbing incident.
7 To the extent that Langford's testimony on this point is in conflict with that of Gor-
don, Farquhar, and Omberg, I credit the latter.
8 Based on the uncontradicted and credited testimony of Shaffer
0 Frequently referred to in the record as the "guard shack."
CERTAIN-TEED PRODUCTS CORPORATION 499
d. The meeting with shipping and receiving employees
Shortly before the election on May 28 , 10 Personnel Manager Langford and Plant
Manager Rhoades met with all but 3 or 4 of about 17 employees in the shipping and
receiving department . The employees in that department are Negro . Both Lang-
ford and Rhoades spoke. In substance they told the employees that their progress
and work performance had been good , that business was good and the outlook bright
for plenty of work in the' foreseeable future ; that a wage survey had been made and
submitted to the home office, the results of which would soon be seen ; and that a
10-cent raise was in the making and might be effective by June 1, if everything worked
out right 11 Rhoades admitted that he attended and spoke at this meeting , and that
he discussed a 10-cent wage increase . He claimed , however, that he was referring
to a wage increase involved in the prior case against Respondent , and which Respond-
ent allegedly was defending against the Union 's contention that such increase had
been granted for discriminatory reasons. I find nothing in the Decision of the
Trial Examiner or the Board in the prior case, to indicate that a wage increase was
an issue there . I do not credit Rhoades' version of this incident.
e. Distribution of stickers
Before the election Personnel Manager Langford distributed among the employees
a printed sticker and asked that the employees display it in the window or wind-
shield of their car. The stickers , bright red in color, read:
VOTE
N. U. W.
NO UNION WANTED
The record does not indicate whether, or the extent to which employees complied
with Langford 's request to display such stickers on their auto.12
f. Other preelection threats
(1) Following the meeting with the shipping and receiving department employees,
and a day or two prior to the election , Langford spoke with shipping department
employee Bradshaw . Langford asked Bradshaw how he ( Bradshaw ) had enjoyed the
bingo and bowling party , which Respondent had given for employees of that depart-
ment, and whether he thought the Union would have done that for the employees.
Langford then told Bradshaw "we have stuck with you and I would like for you to stick
with us," and added "if everything did not turn out okay that the white fellows would
get our jobs, but that we could not get theirs " 13
(2) About a week prior to the election, Foreman Schriver asked employee Stoker
to leave his work station and follow Schriver to a rock crusher outside the plant.
Going toward the crusher , Schriver commented that the Board election was approach-
ing and that he had assured Langford that he ( Stoker) would not vote union . Stoker
commented that he was considering the matter and trying to reach a decision . Schriver
offered to help Stoker , and pointed that he (Stoker ) was "low on seniority ... and
... if the work got slow you could be laid off and a colored boy could come in from
outside and take your job." During this conversation Schriver also told Stoker that
Respondent had planned to give employees a 10-cent raise in June, "but now you
to Variously estimated by the witnesses as a few days to about 2 weeks prior to the
election
"Based on the composite of the credited testimony of Moss, Bradshaw , Riggs and
Wilson. Langford did not testify with respect to this meeting.
13 The findings in this paragraph are based on the credited testimony of Moss , Stoker,
Murray, McAdams, and Russell . Langford did not deny this portion of the testimony
of the witnesses referred to
13 Langford admitted that he had a conversation with Bradshaw , but claimed it was not
as the latter related it According to Langford , after some general remarks about the
bingo and bowling party, he mentioned that the union election was coming up and that
he (Langford ) hoped Bradshaw would stick with the Company ; that he pointed out that
Bradshaw had probably read some of the Union's literature which advocated plantwide
seniority, and that he ( Bradshaw ) should consider that carefully because with Bradshaw'a
limited seniority it would be "very possible [ under that plan ] for men from other de-
partments to bump him if we should have a cut back or reduction in force " To the ex-
tent that Langford 's testimony on this point is in conflict with that of Bradshaw , I credit
the latter.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will all have to go on strike to get it." The conversation concluded with Schriver
again reminding Stoker that he (Schriver) had assured Langford that Stoker "would
not go Union." 14
(3) A few days prior to the election, employee Nelson asked Personnel Manager
Langford, as the latter passed Nelson's work station, how he thought the election
would go. Langford replied that he thought the majority of the employees would
stay with the Company and added that Nelson and employee Ward had been warned
about the Union, and if the employees knew what he knew, they would not be for
the Union. On Monday after the election Langford told Nelson that he was dis-
appointed in him, that the employees had gotten along without a union in 1962 and
1963, and that he thought they could get along without one in 1964; that the Union
was premature, and that in a few days Nelson would understand what he was talking
about.15
(4) A few days prior to the election, Langford approached employee Billy Kellum
at his work station and asked the latter how he thought the election would go.
Kellum replied that he thought it would be close. Langford then stated that if the
Union won the election he hoped "they strike the next day because I will replace every
one of the sons-of-bitches." 16
(5) About a week prior to the election, Foreman Schriver told employee John
Riley that if the Union had not come upon the scene, all employees would have
received a 10-cent increase the first of June.17
(6) A day or two before the election Foreman Schriver asked employee Vance
Kellum how he (Kellum) felt about the Union Kellum replied that he had not
given the matter much thought, but felt something was needed to satisfy the griev-
ance of the men. Schriver then showed Kellum a seniority list, pointing out that
Kellum had about the minimum seniority, and added "did you know that if this
plant went Union that the Negroes could come in here and take your job...." The
night before the election Schriver again spoke to Kellum, stating that he, Langford
and Foreman Reeves liked Kellum "a lot," but if he (Kellum ) "joined the Union
our partnership would dissolve." 18
2. Alleged post election restraint and coercion
a. Alleged discriminatory changes in working conditions
Prior to the election on May 28, the employees were free to leave work to get
water , or to use toilet facilities . A few days after the election, the foremen in the
various departments notified the employees that they would not thereafter be per-
mitted to visit the bathroom or get drinking water, except at lunchtime and normal
break periods. Several of the foremen admitted that they issued and enforced such
instruction , pursuant to directions given them by Assistant Plant Manager Shaw.
14 My findings with respect to this incident are based on the credited testimony of Stoker
Schriver did not specifically deny Stoker's testimony The latter testified that several
employees ( naming only Vance Kellum ), asked him about the Union and about seniority;
that he told them if they were talking about plant seniority , to go check the roster and
they would see who had the seniority and who had the least desirable jobs ; and that this
was all he made reference to He did admit , however, that in a conversation with em-
ployee Kutscherousky , concerning a merit raise, which took place after the election, he
told the latter that he would not receive such a raise because Respondent was in labor
trouble ; that the election came "when the raise was supposed to be" ; that Respondent
was still defending the raise given the prior year ; and "if we give you any more, then
we will just be in more trouble." To the extent that Schriver 's testimony may be
regarded as in conflict with that of Stoker , I credit the latter.
1S The findings in this paragraph are based on the uncontradicted and credited testi-
mony of Nelson.
16 Langford denied that he ever made such a statement , but did admit that he had
several conversations with employees wherein he gave as his interpretation of the Texas
right-to-work law, that if a "wildcat strike is pulled" an employee can be permanently
xeplaced . I credit Kellum.
17 Based on the uncontradicted and credited testimony of Riley.
18 Schriver did not specifically deny this portion of Kellum's testimony To the extent
that Schriver's testimony, set out in the footnote supra, may be regarded as in conflict
with that of Kellum, I credit the latter. Other statements made to Kellum concerning
his union activity are hereafter set forth.
CERTAIN-TEED PRODUCTS CORPORATION 501
The latter testified that he had been directed by Plant Manager Rhoades to see that
employees stopped abusing bathroom and water fountain privileges; that he passed
such instruction on to the general foremen who in turn passed them on to the various
shift foremen.
Respondent's asserted justification for the aforementioned changes in working
conditions, is that Union Representative Shippey had on May 24, attached to his
car a jug on which was the legend, and distributed among the employees a circular
stating, in substance, that Pluto Water 19 Works, that enough of it would be good for
a 30-cent raise, and, fearful employees would accept Shippey's suggestion and thereby
engage in a slowdown, it prohibited the use of toilet facilities and the water fountain
until it felt the danger was over. Shippey testified that he took the aforementioned
action because of a campaign circular distributed by Respondent, over the signature
of Plant Manager Rhoades, that the only means available to a union to enforce its
demands on an employer is to call the employees out on strike.
b. Suspension of the wage-progression plan
Respondent operates under a wage progression plan for advancing its employees
as they gain experience and value to the Company. Under the plan, all jobs are
classified into grades, and within each grade there are various steps. Upon initial
hire, an employee's compensation is set at the bottom step of the pay grade for the
particular job. At the end of 3 months, 6 months, and the first year, and thereafter
at the end of each year, the employees' work performance is reviewed for a possible
merit increase to the next higher step in the grade.20 It is fair inference from the
testimony that at least the first two, and probably the third merit increases are,
rather automatic.
Langford admitted that since the election no steps (merit) increases have been
granted. The General Counsel contends that the withholding of such increases was
in retaliation for the employees having selected the Union as their bargaining repre-
sentative, and hence was violative of Section 8(a)(1). Respondent contends that
as the Union was certified as a result of the May 28 election, and the parties are-
now bargaining, it would be an unfair labor practice for it to grant wage increases,
relying on N L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co.
369 U.S. 736.21
c. Statements to employees
Following the election, the General Counsel contends, statements restraining and
coercing employees were made by Respondent's management officials. There were
as follows:
(1) The day following the election, Langford commented to employee Alton Allen
that the latter was not wearing a union button and added "I see your friend Ronnie
Kennedy is wearing one." Langford then told Allen that Kennedy had "let [him]
down when he voted for the Union," that he had hired Kennedy when the latter was
"shoveling manure at Neuhoft's" and that he (Allen) should ask Kennedy, "How he
would like to [again] shovel manure at Neuhoff's." Langford also told Allen that
he (Langford) would "like to pick out the ones that voted for the company and do
something nice for them." Also following the election, Allen was asked by Foreman
Schriver whether he had voted for the Union, and when Allen answered in the
negative, asked why he was wearing the union button. Allen replied that he was
doing so because the employees had been deprived of their toilet and water fountain
privileges. Schriver then stated that this was done because the Union had been voted
in, and asked if Allen knew the Company had planned a 10-cent wage increase for
early June, adding that the increase would not be given now that the men had
voted for the Union.22
(2) After the election Langford grabbed the union button being worn by employee
Ronnie Kennedy and stated "I sure am disappointed in you Ronnie," and that he
just wanted to ask "why." 23
19A strong cathartic.
20 The employee may also be promoted to a higher pay grade when the duties of his job
are increased to justify such promotion.
21 Respondent has moved to dismiss paragraphs 7(i) and 10 of the complaint, which
allege, the withholding of wage increases to be violative of Section 8(a)(1) of the Act.
This motion is disposed by my rulings hereafter made, on this aspect of the case.
22 The findings in this paragraph are based on the credited testimony of Allen, which
on this aspect of the case , is uncontradicted.
23 The foregoing finding is based on the credited and uncontradicted testimony of Ronnie
Kennedy.
-502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Shortly following the election , Personnel Director Langford engaged employee
Jesse Hunt in conversation . After some general talk about the election , Langford
told Hunt that he (Langford) was disappointed in employees Cordell and Kennedy
because they wore union buttons. With reference to Kennedy, Langford commented
that when he hired Kennedy the latter was "out at Neuhoff 's shoveling manure," and
now "he is wearing a union button around here and I am really disappointed in
him." 24
(4) Employee Kutscherousky credibly testified that shortly after the election, he
talked with his then foreman, Cecil Schriver, about his failure to receive a merit
raise which he (Kutscherousky) felt was due him. Schriver told Kutscherousky that
he would not get the raise, and pointing to the union button the latter was wearing,
said "that is why you won't get it." After some comment by Kutscherousky as to
his reason for wearing the union button, Schriver stated, "Well you boys were due
to get a raise, but you won't get it now." Kutscherousky remarked that the preced-
ing year the employees had received a 10-cent raise, and Schriver replied, "Well, it
would have been a whole lot more than that." 25
d. Alleged interference with Board processes
Following the May 28 election, Respondent filed objections to conduct affecting
the results of the election 26 To support its objections , Respondent obtained from
employees, and submitted to the Board, certain statements relating to alleged prom-
ises by union representatives during the course of the campaign. The complaint
alleges, and the General Counsel contends, that these statements were created from
the employees, were knowingly false, and that their submission to the Board with
knowledge of their falsity constituted interference with the Board's processes, and a
violation of Section 8(a)(1) of the Act. In support of this allegation of the com-
plaint the General Counsel relies on the testimony of James Moss and Jonnie Lee
Wilson.
Moss employed in Respondent 's shipping and receiving department testified that:
2 or 3 days after the election Langford came to his home and asked that he (Moss)
sign a statement that Union Representative Shippey had promised him (Moss) an
hourly increase of 25 cents for support of the Union; he told Langford that Shippey
had made no such promise to him; Langford left, telling him (Moss) to come to the
office when he came to work the next day; in Langford's office the following day,
the latter read a prepared statement and asked him (Moss), how it sounded, and
that he replied, "Well it did not sound right but I guess it was right": Langford then
took him to a notary where he (Moss) was sworn and he signed the document which
Langford had read to him.27
Langford did not contradict or give any different version of the facts concerning
which Moss had testified on this branch of the case, but he did admit that he talked
to other employees on this subject.
Wilson testified on direct examination , in substance, that 2 or 3 weeks after the
election Langford came to his (Wilson's) home and stated that he was trying to
find someone to whom Shippey had promised a wage increase; that he (Wilson) told
Langford that no such promise had been made to him; and that Langford then
offered him a 5-, 10-, or 15-cent raise for such information, saying that he needed it.
On cross-examination Wilson admitted, as Langford thereafter testified, that Lang-
ford's statement was in the context that he was trying to find evidence that Shippey
had offered a guarantee of a 5-, 10-, or 15-cent wage increase, and that Langford had
made it clear that he only wanted the truth. On redirect, however, Wilson again
stated that Langford had offered him (Wilson) a 5-, 10-, or 15-cent raise for the
24 The findings in this paragraph are based on the uncontradicted and credited testi-
mony of Hunt.
25 Schriver's version of this conversation is set forth in footnote 14, supra It will be
noted that Schriver did not specifically deny the statements attributed to him by
Kutscherousky . I credit the latter.
26 The objections were subsequently overruled and the Union was certified.
27 The statement signed by Moss recited that : Shippey had promised wages equal to
those at a neighboring Johns Manville plant, and while he did not know what they were,
he was led to believe that they were "considerably more" than the rates paid by Respond-
ent ; Shippey also guaranteed jobs anywhere in the plant if the employee had the qualifica-
tions and sufficient seniority ; and the employees understood the statements to be promises
which Shippey could deliver , and that they "had a direct effect on the way some of us
voted . .. . 11 The statement was admittedly delivered to the Board 's Regional Office
by Respondent , in support of its objections to the election.
CERTAIN-TEED PRODUCTS CORPORATION 503
information which Langford sought. Wilson gave no statement to Langford, nor
is there any evidence that Wilson obtained any wage increase as a result of the con-
versation with Langford.
Although I am convinced that Wilson was honestly trying to state the facts truth-
fully, I am not satisfied that his testimony on direct and redirect correctly reflected
what Langford said to him. Accordingly, I do not credit Wilson' s testimony in
that regard.
3. The alleged discrimination
a. The discharge of Vance Kellum
Kellum had worked for Respondent since April 1962, and had received wage
increases at the end of the first 3, 6, and 12 months, in accordance with Respondent's
progression plan. Kellum had, at some time not disclosed by the record, signed a
union card and attended about three union meetings. As set forth in section I, B,
1, f, (4), above, Foreman Schriver had shortly before the election, interrogated
Kellum as to his union sympathies, threatened that if the Union came in, Negroes
could replace him, and while management officials liked him, his "partnership [with
Respondent] would be dissolved" if he (Kellum) joined the Union.
On May 29, the day following the election, Kellum reported for work on the
4 p.m. shift. On this occasion Kellum for the first time, wore a union button to
work. Foreman Schriver assigned Kellum to operate a hydrotester.28 According to
Kellum, after he worked with the hydrotester for about 15 minutes Schriver
approached, pointed at the union button Kellum was wearing and said , "You lied
to me, I will never believe another word you say." Shortly thereafter Langford came
over and commented, "I see you stuck with me this time Kellum." Langford then
said he smelt liquor and asked Kellum if he had been drinking. Kellum at that time
denied he had been drinking, but when Langford pulled him over and smelt his
breath, Kellum admitted that he drank a beer before coming to work. Kellum testi-
fied that Langford left without anything more, and shortly thereafter Schriver returned
and told Kellum that as he had admitted to Langfod that he had been drinking, he
should clock out and, this being his first offense he would receive a warning letter,
but that for a second offense the penalty would be a suspension, and for a third
offense, discharge.29 Kellum left the plant as directed, but in a telephone conversa-
tion later that day with Plant Superintendent Reeves, Kellum was told to return to
plant on Monday, his next scheduled workday. However, before going to the plant
on Monday, Kellum telephoned Reeves and told the latter that he heard from fellow
employees that he (Kellum) had been fired. Reeves told Kellum to come to the
plant and that Langford would see him. At the plant, Langford discharged Kellum,
saying Respondent could not have anyone drinking on the job.
Schriver admitted that when Kellum reported for work on May 29, and was
assigned to operate the hydrotester, he (Schriver) observed nothing to indicate that
Kellum was drinking or was otherwise unable to perform his duties to the fullest
extent. According to Schriver, about 20 to 30 minutes after he assigned Kellum to
the hydrotester, he began making his rounds in the plant, and when he approached
Kellum that he thought he detected an odor of alcohol, but was not sure, and asked
Langford to check; that Langford reported to him that Kellum had admitted "drink-
ing beer prior to coming to work;" that he got out the "Rule Book" which provides
for "discharge for intoxication on the job," 30 and for that reason told Kellum "to go
home." When asked whether there was anything that indicated to him that Kellum
was under the influence of intoxicants, Schriver replied, "Well, by the action of
poking that badge out, you know, you can just tell, you work around a person
so long."
Personnel Manager Langford testified that: when he passed through the department
about 4.30 p.m., on May 29, Foreman Schriver told him of his suspicion that Kellum
had been drinking, and at Schriver's request he checked Kellum; Kellum was in a
rs A hydrotester is a machine designed to test hydraulically the pressure , which a piece of
pipe will withstand There is some danger in operating it In fact, Kellum prior to
this occasion , broke his hand while operating such a machine.
SO The rule book, which as late as September 1964 Langford distributed to newly hired
personnel as the rules governing their conduct as employees , provides that for "Report-
ing to work whale under the influence of alcohol or narcotics" [emphasis supplied], the
penalty would be, for the first offense, suspension for 1 day ; for a second offense suspen-
sion for 5 days ; and for a third offense , discharge . Schriver testified that the plant rules
provide for discharge "for intoxication on the job." He admitted , however, that he told
Kellum to go home and return the next day when he would get a warning letter.
30 The exact provisions of the rule book are quoted supra.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"rather jovial mood," and he and Kellum "passed the time of day," and that he
finally asked Kellum what the latter had been drinking; after Kellum denied he had
been drinking, he pressed Kellum's stomach, told him to exhale, and then stated,
"I know you have been drinking, now tell me what"; Kellum then stated he was not
going to lie about the matter, that he had a beer before he came to work; he (Lang-
ford) then told Kellum there had been too many accidents in the plant, and directed
him to "hit the time clock and come back when you are in a condition to work;" he
told Schriver that Kellum admitted having a beer before reporting to work, and that
he had directed Kellum to check out and return when he was in condition to work.
Langford further testified that after the last-mentioned conversation he reported to
Plant Manager Rhoades that he found Kellum under the influence, that Kellum had
admitted it, and that he had told Schrivei to tell Kellum to "punch out;" that Rhoades
regarded this as an "extreme violation," and directed that Kellum be terminated;
and that when Kellum came to the plant the following Monday, he (Langford)
terminated him.
Plant Manager Rhoades testified that he was informed that Kellum had been sent
home for "drinking on the job;" that he checked out the circumstances of Kellum
"reporting to work under the influence," and instructed Langford to discharge
Kellum. Rhoades admitted that the rule book was in effect at the time of this
incident, and that generally he is bound thereby, but stated that with regard to
offenses which he regards as too serious, naming specifically reporting for work under
the influence, he would not be governed by the rule book. Rhoades also admitted
that if an employee had a drink before reporting to work, but was, in the opinion of
management, in full possession of his faculties, he would be permitted to continue
with his work.
b. The discharge of Roger Omberg
Omberg was hired March 12, and worked under the supervision of Foreman
Flannigan. As set forth in section I, B, 1, a, hereof, Omberg was interrogated by
Langford at the time of his hire concerning his views about Unions. Introducing
Omberg to Production Superintendent Shaw, Langford commented that he did not
anticipate any trouble out of Omberg so far as unions were concerned. Just prior
to the election Langford talked to Omberg on two occasions. On the first occasion
Langford asked whether any of the prounion employees had talked to Omberg, and
receiving a negative reply, told Omberg to keep on his toes and watch out for them.
The second occasion Langford asked Omberg to try to bring employee Stoker around
to voting for the Company. Toward the end of the workday on May 29 (the day
following the election), Omberg was discharged by Foreman Flannigan because he
was "not cleaning up fast enough." Omberg protested that his work had not there-
tofore been criticized by Flannigan, but the latter insisted that he had to let Omberg
go. According to Omberg, some 3 or 4 weeks after he started work, he asked
Flannigan how he (Omberg) was doing, and that Flannigan replied, "fine." While
Omberg admitted that from time to time Flannigan would show him how to perform
his work, his testimony that Flannigan never told him his work was unsatisfactory
stands undenied.
Respondent contends that Omberg was terminated during his probationary period
because his work did not measure up to its required performance. Plant Manager
Rhoades testified 31 that the foremen have a list of all probationary employees under
their supervision, and from time to time review their work performance during the
probationary period; that as plant manager he spends at least half of his time in the
plant observing employees at work; that his observation of Omberg convinced him
that the latter "was better at talking than he was at working;" that he discussed this
with Flannigan, and when the latter agreed, he directed that Omberg be terminated.
c. Alleged reduction of wage rate and changed duties of J. C. Riggs
Riggs had worked in Respondent's shipping and receiving department for about 2
years. Beginning a few days after his hire, he was permitted, from time to time,
to operate the small forklift. For about a year prior to the events hereafter referred
to, no employee other than Riggs operated the small forklift, but admittedly he was
never classified as a "hoister." Riggs' rate of pay when he operated the small forklift
was $2.17 per hour 32 Riggs was among the shipping and receiving employees
31 Foreman Flannigan, who discharged Omberg, did not testify.
82 Respondent follows the practice of assigning employees in this department to different
tasks which carry different rates of pay. However, for purposes of computing the com-
pensation to be paid the employee , the highest rate applicable to any work performed on
a particular day will be applied to all hours worked that day.
CERTAIN-TEED PRODUCTS CORPORATION 505
addressed by Rhoades and Langford shortly before the election on May 28, as set
forth in Section I, B, 1, b, above. On the day following the election (Friday, May 29),
Riggs and other employees for the first time wore a union button at work.
During the course of that day Anderson, an admitted supervisor, and Plant Manager
Rhoades, from time to time watched Riggs perform his duties. The next workday
(Monday, June 1), Riggs again wore a union button to work. Reporting for work,
Riggs was directed by Foreman Shaddle to perform certain loading operations.
Riggs prepared the forklift for operation and started with it to the area where the
work was to be done On the way he was intercepted by fellow employee Lacy,
and told by the latter that he (Lacy) had been directed to operate the forklift, and
that Riggs was to assist him by performing other loading operations. Riggs did as
Lacy told him. Since that time, and until the close of the hearing, Riggs has been
assigned to operate the forklift only about three times. When assigned to operate
the forklift, Riggs was paid $2.17 an hour; for all other work he was paid $1.94
an hour.33
The only testimony relating to Riggs which was offered by Respondent, is that of
Foreman Shaddle who testified Riggs works in his department as a "laborer," in pay
grade 1, for which the rate of pay is $1.97; that Riggs has been used for work in
other pay grades, and when so assigned is paid at the rate for the job he performs.
Shaddle did not deny that Riggs was the only employee that operated the small fork-
lift for about a year prior to May 1964, nor did he give any reason for taking that
work away from Riggs so suddenly after the election and Riggs' appearance in the
plant wearing a union button.
d. The discharge of Alton Allen
Allen had worked for Respondent since October 1963. Respondent makes no
complaint that his work performance was in any way inferior. As set forth in Sec-
tion I, B, c, (i ), above, Allen was interrogated by both Langford and Schriver with
respect to his union sympathies, and was questioned about the wearing of union
buttons in the plant the day following the election. Late in June or early July, Allen
was scheduled to change from the day shift to the night shift 34 In view of the
anticipated birth of his child early in July, Allen sought permission from Plant Super-
intendent Reeves to continue on the day shift so that he might be available to take
his wife to the hospital when that became necessary. Reeves refused Allen's request,
but did agree to furnish him with an unlisted night telephone number which his wife
might call should Allen be needed while at work.
About 11:30 p.m., Tuesday, July 7, it became necessary for Allen to take his wife
to the hospital at Whitney, Texas, some 12 miles from Hillsboro, where Allen lived.
Because he was due at work at midnight, and having no telephone at home, he drove
by the home of fellow employee Ronnie Kennedy and asked the latter to advise
Foreman Schriver that he (Allen) would not be at work that night, and the reason
for his absence.35 Following the birth of his child during the afternoon of Wednes-
day, July 8, Allen remained at the hospital in Whitney, Texas, until about 6 p in., and
then returned to Hillsboro. He then went first to the home of his mother,36 where
he spent a short time, and then went to a motel to confer with a Board agent and
sign an affidavit in connection with matters the latter was investigating. The time
Allen spent with the Board agent does not appear. From the motel, Allen testified,
he went to his home, reaching there between 10 and 10:30 p.m., set two alarm clocks
for 11:30 p.m., and went to sleep. This was done according to Allen, to enable him
to report for work at midnight. Allen testified that he slept through the alarms and
continued to sleep until about 7:30 or 8 a.m., Thursday, July 9, when he awakened
by his mother who had come to his home pursuant to a telephone call from Lang-
ford asking that Allen come to see him. Thereupon, Allen went to the plant where
he was discharged by Production Superintendent Shaw.
as The findings in this paragraph are based on the uncontradicted and credited testi-
mony of Riggs.
34 On the night shift Allen 's work schedule would be from midnight to 8 a.m.
15 There is a conflict in the testimony as to the delivery of the message. Kennedy
testified that a few minutes after starting work at midnight , he told Schriver that Allen
would not be in because he had to take his wife to the hospital, and that Schriver stated
that Allen should have called in. Schriver testified that he had no recollection of
Kennedy speaking to him about Allen's absence . I find it unnecessary to resolve the
conflict.
38 Although his mother does have a telephone , he admittedly made no effort to call
the plant to explain or otherwise check on his absence from work.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Shaw, he had been informed that Allen was, without permission,
absent from work for 2 or 3 days, and that he asked Langford to try and find out if
Allen had quit; that when Allen came to the plant on July 9, he discharged Allen
because the latter apparently did not care for his job if he would not take a few
minutes to telephone and explain the reason for his absence,37 Shaw admitted that
Respondent had rules relating to unexcused absences, but that he did not consider
them in discharging Allen.38
e. The layoff of Bradshaw, Smith, and Knox
Bradshaw, Smith, and Knox were hired on the same day (September 16, 1963),
for the shipping and receiving department. Bradshaw and Knox admitted that when
they were hired, Langford told them that the job was temporary and that there was
no assurance it would become permanent.39 Bradshaw and Smith attended the meet-
ing addressed by Rhoades and Langford prior to the election. Knox, while aware of
that meeting, did not attend it Knox signed a union card and attended several
meetings. Bradshaw apparently also signed a union card. On the day following
the election Bradshaw and Knox, as well as other employees, came to work wearing
union buttons.40 This was the first occasion any employee wore a union button in
the plant. Toward the end of that workday, Bradshaw, Smith, and Knox were told
by Shipping and Receiving Superintendent Shaddle that they were being laid off as of
the end of that day for lack of work. It is undisputed that Bradshaw, Smith, and
Knox had the least seniority of any employees in the shipping and receiving depart-
ment, and that since their layoff no other employees have been hired for that depart-
ment. It is also undisputed that on at least two occasions, when extra work in the
department developed, these employees were recalled and were employed until the
extra work was completed.
f. Alleged withholding of wage increases from specific employees
The complaint alleges that during the period between July 10 and August 28,
Respondent discriminatorily withheld and continues to withhold wage increases from
employees Mills, Farquhar, Davison, Gordon, Broughton, and Holbert because they,
or other employees joined or otherwise assisted the Union, and that Respondent
thereby violated Section 8(a)(3) of the Act. This contention of the General Counsel
is apparently in addition to that referred to in section I, B, 2, b, hereof, with
respect to which it is contended that the general suspension of wage progression was
violative of Section 8 (a)( 1) of the Act.
Of the employees named above, only Farquhar and Gordon were called as wit-
nesses. Farquhar testified that he received the increase due 3 months after his hire on
February 24, but did not receive the 6-month step increase normally due August 24.
He apparently did not ask for or receive any explanation for Respondent's failure
to grant the last-mentioned increase 41 Gordon testified that he received the increase
due 3 months after his hire on January 16, but did not receive the 6-month increase
normally due on July 16. On two occasions he asked his foreman about the matter
and was told that the raise could not be given at that time. No reason was given.
Shortly thereafter Gordon was promoted to a higher pay grade. In addition to this
oral testimony, the General Counsel introduced a departmental seniority list, pre-
pared by Respondent as of May 28, 1964, which shows the date of hire, classification,
97 Shaw admitted that Allen explained that his absence on July 7, related to the birth
of his child, which he (Shaw) would have probably excused, and that on July 8, he slept
through the alarm clock ; but that even under these circumstances Allen could have found
some time to call the plant and explain his absence. Shaw also admitted that Allen
claimed he sent word about his absence through Kennedy, but he (Shaw ) felt it was
Allen's responsibility to make certain the company was in fact informed concerning his
absence.
sa The rule book heretofore referred to, provides that for two unexcused absences in a
period of 3 months, an employee will be given a written warning: the next unexcused
absence will result in suspension for 3 days ; and a subsequent unexcused absence will
result in discharge. I do not consider this rule inconsistent with Shaw's requirement that
the Company be informed by the employees of the absence, although unexcused, or be sub-
ject to discharge.
36 Smith did not testify.
40 There is no evidence whether Smith also wore such a button or not
41 Langford , of course , testified that no merit increases were granted after the election
on May 28.
CERTAIN-TEED PRODUCTS CORPORATION 507
pay grade, and step within the grade.42 The exhibit also discloses that the 3-month
increase from the entrance step to step 2, and the 6-month increase from step 2 to
step 3, are both automatic, subject only, I assume, to proper work performance. As
the employees in question were on the payroll as of August 21, 1964, when Respond-
ent prepared the aforementioned exhibit, the work performance of these employees
was apparently satisfactory to Respondent.
C. Conclusionary findings
On the facts heretofore set forth, I find and conclude that Respondent violated the
Act in the following particulars:
1. The independent Section 8 (a) (1) violations
(a) The interrogation of employees Gordon, Farquhar, and Omberg, at the time
of their hire, as to whether they had ever belonged to a union.
(b) The conversation with employee Shaffer.
(c) Langford's observing the contacts of Union Representative Shippey with
Respondent's employees under the circumstances set forth in section I, B, 1, c, above
The credited testimony shows that Langford regularly, over a period of several
months, went to the guard room when Shippey appeared on the access road at shift
change time. That he in fact was there to observe the contacts of the employees with
Shippey is indicated by the nose-thumbing incident, which, as stated, Langford did
not deny. Moreover, it is a little too pat that Langford's presence at the guardroom
was required virtually daily because of the necessity of leaving messages with the
guards in order to insure the admission of new employees to the plant, in view of the
fact that Langford could talk to the guards by telephone. Accordingly, I do not
credit Langford that his presence in the guardroom, under the circumstances detailed
above, was only in connection with the performance of his duties, and that Shippey's
presence on the access road was a fortuitous circumstance which meant nothing to
him. On the contrary, on this record I find and conclude that Langford's presence
in the guardroom was dictated by his intent and purpose of observing what employees
stopped to converse with Shippey. This factor, I believe, distinguishes this case
from Salant & Salant, Incoipoiated, 92 NLRB 417, 446-447.
(d) The statement made by Rhoades at the meeting with shipping and receiving
employees that a 10-cent iaise was in the making and might be effective by June 1.
Under the circumstances this was a promise of benefit made to induce those employees
to withhold their support from the Union.
(e) By the distribution of the "No Union Wanted" stickers to employees with
the request that they be displayed in their automobiles. The fact that employees were
told that display of the sticker was optional with them, and that such display was
not required by Respondent, is immaterial. The critical fact is that Respondent placed
the employees in a position of having to declare themselves as either for or against
the Union. This constituted coercion proscribed by Section 8(a)(1) of the Act.
Beiser Aviation Corporation, 135 NLRB 399, 400, and cases there cited.
(f) Langford's statement to Bradshaw, a Negro employee, to the effect that if
the Union won the election, white employees could take the jobs of the Negroes, but
Negroes could not get jobs held by white employees. This was clearly a threat to
Bradshaw's job security if the Union won the election, Atkins Saw Division, Borg-
Warner Corporation, 148 NLRB 949. For the same reason Schriver's statement to
Stoker and Vance Kellum, white employees, that a Negro might replace them if the
Union won the election, was a threat to their job security.
"The relevant portion of this exhibit shows with respect to these employees, the
following:
Employee Date of Hire or
Seniority
Pay Grade Step
Mills----------------------------------------- 1-13-64 3 2
Farquhar--------------------------------- 2-24-64 3 2
Davison------------------------------------- 1-10-64 2 2
Gordon------------------------------------ 1-16-64 2 2
Broughton ----------------------------------- 1-28-64 2 2
Holbert-------------------------------------- 2-10-64 2 2
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Schriver's statement to Stoker that Respondent had planned a wage increase
for June, but that with the Union now on the scene, the employees would have to
strike to get it, and the similar statement to employee Riley.
(h) Langford's statement to employee Nelson that he had been warned about
the Union.
(i) Langford's statements to employee Billy Kellum threatening to replace any
employee that struck in support of the Union.
(j) Schriver's interrogation of Vance Kellum as to how the latter felt about the
Union, and his statement to Kellum to the effect that the latter was liked by manage-
ment, but that such would cease if Kellum supported the Union.
(k) Langford's statements to employees Nelson, Allen, Kennedy, and Hunt that
he (Langford) was disappointed because employees Kennedy, Cordell, and Nelson
were supporting the Union, and his request of Allen that the latter ask Kennedy how
he would like to again "shovel manure at Neuhoff's."
(1) Schriver's statement to employee Kutscherousky that his wage increase and
wage increases to other employees were being withheld because of the Union.
(m) Schriver's statement to employee Allen that the toilet and water fountain
privileges of the employees had been revoked, and wage increases withheld because
the employees had selected union representation.
(n) Langford's statement to employee Allen that he (Langford) would "like ...
to do something nice" for those employees that voted for the Company.
(o) The revocation of the employees toilet and water fountain privileges. An
employer is, of course, free to withhold such privileges from employees if his business
judgment so dictates, provided the action is not taken because the employees have or
indicate a desire to engage in activity guaranteed them by Section 7 of the Act. On
the facts disclosed by record I am convinced, and so find, that Respondent took this
action because a majority of the employees had voted in favor of the Union at the
May 28 election, and not, as Respondent contends, to guard against a possible show-
down by reason of Shippey's Pluto Water publicity. Several factors lead me to
this conclusion. To begin with Shippey's circular referring to the use of Pluto water
is dated May 24-4 days prior to the election-and 5 or 6 days before Respondent
put the new rules into effect. If Shippey's publicity called for action to avert a
possible slowdown, it is difficult to understand why such action was not taken imme-
diately, rather than after the results of the election became known. Secondly, the
timing of Respondent's action-a day or two after the election-particularly in view
of the statements by Langford and Schriver voicing their union animus in general,
and their displeasure about the display of union buttons in the plant, in particular,
strongly indicates that the decision to revoke toilet and water fountain privileges,
was motivated by the desire to retaliate against the employees for having selected
union representation. And finally there is the credited testimony of Allen that
Schriver told him that the action referred to was taken because the men voted for
the Union-testimony which Schriver did not deny when he testified as a witness
for Respondent.
(p) The general withholding of merit wage increases on and after May 28, 1964.
,On the entire record I find and conclude that such withholding of wage increases was
in retaliation for the employees having selected the Union as their bargaining repre-
sentative. I am led to this conclusion because (a) the strong union animus of
Respondent, hereinabove detailed, (b) the fact, as I have found, that the change
in working conditions was for the same reason, and (c) the several statements by
Schriver, hereinbefore set out, that Respondent's planned wage increases for June 1,
were being withheld because of the advent of the Union.43
I must and do reject Respondent's contention that the continued operation of its
wage plan would, because of the Union's certification and the fact that the parties
were bargaining, have been an unfair labor practice. In N.L.R.B. v. Benne Katz,
d/b/a Williamsburg Steel Products Co., 369 U.S. 736, which Respondent relies upon
in support of its position, the Supreme Court very carefully pointed out that the
unilateral merit increases granted in that case, would not have been violative had
they been granted "in line with the Company's long-standing practice of granting ...
merit reviews-in effect, were a mere continuation of the status quo...."
All Section 8 (a) (1) allegations of the complaint not herein specifically found, I
shall recommend be dismissed, including the allegation that Respondent coerced from
its employees and submitted to the Board knowingly false statements. The only
evidence in this record that could support this allegation, as I have found, was that
43 Rhodes made a similar statement to the shipping and receiving employees when he
addressed them prior to the election. As set forth, p. 4, supra, his statement was that a
10-cent raise was in the making and might be effective by June 1, if everything worked
out right.
CERTAIN-TEED PRODUCTS CORPORATION 509
taken from Moss, after Moss told Langford that while the documents did not "sound
right, but I guess it [is] right." I am unable to conclude that in submitting such state-
ment to the Board, Langford was submitting a statement that he knew was false.
Accordingly, I find and conclude that the General Counsel has failed to prove this
allegation of his complaint.
2. Conclusions as to Section 8(a) (3) allegations
a. Vance Kellum
The issue on this aspect of the case is solely whether Respondent in fact discharged
Kellum for intoxication on the job, as Respondent contends, or whether, as the
General Counsel contends, the discharge was because of Kellum's union activity,
the alleged intoxication being a mere pretext seized upon to conceal the true reason
for the discrimination against Kellum. Upon the record as a whole, I am convinced,
and so find and conclude, that Kellum was discharged because of his support of
the Union.
The evidence shows that Kellum had, at the time of his discharge on May 29,
worked for Respondent for more than 2 years. Respondent voiced no complaint
about Kellum's woik, attitude, or behavior during that period. In fact he was told
by Foreman Schriver that he was a satisfactory worker. The evidence also shows,
as previously detailed, Schriver made several efforts just prior to the election to
dissuade Kellum from supporting the Union, threatening that he might be replaced
by a Negro if the Union came in, and on the evening prior to the election, that his
"partnership" with the Company would be "dissolved" if he continued his support
of the Union. The day following the election, when Kellum reported for work on
the 4 p.m. shift, he, with other employees, wore a union button in the plant for
the first time.44 When Schriver assigned Kellum to work on equipment which he
(Schriver) regarded as dangerous, he admittedly saw nothing to indicate that Kellum
might not be in condition to perform those duties, and when he talked with Kellum
some 15 to 20 minutes later was unable to decide whether Kellum was unable to
perform his duties properly and safely, and permitted the latter to work until Lang-
ford made his check. And when asked to state what gave him the impression that
Kellum might have been under the influence of intoxicants, Schriver made reference
to Kellum's "action of poking that badge [union button] out...." Even Langford,
who talked with Kellum for a short period, and found the latter "jovial" was unable
to satisfy himself as to Kellum's sobriety until he forced him to exhale. It was at
this point that Kellum admitted that he drank one beer before coming to work. It
is significant that both Langford and Schriver, in accordance with Respondent 's rules,
told Kellum to punch out and return the next workday when he would be in condi-
tion to work. Schriver claims he did this after Langford told him that Kellum
admitted drinking one beer, and after he consulted the Company's rules and deter-
mined that the penalty for intoxication on the job was discharge.45 It is significant
also, that when Langford reported the matter to Plant Manager Rhoades, he informed
the latter, not that Kellum had admitted drinking one beer, but that Kellum was
under the influence and admitted it, and that it was on the basis of this report that
Rhoades concluded that Kellum should be discharged. Rhoades, however, testified
that it was reported to him that Kellum had been drinking on the job; that where
possible they try to talk to a man found drinking on the job, and for that reason he
directed Langford to send Kellum home with instructions to return the next workday,
but after checking out the circumstances he concluded that Kellum's offense was much
too serious and directed Langford to discharge him. Rhoades admitted that gener-
ally he is bound by the provisions of the rule book which Respondent issued, but
that he does not abide by it in matters that he considers too serious.
Upon these facts, I can only conclude that Kellum's lack of sobriety, if such was
in fact lacking (and on that question I find it unnecessary to make any finding),
was not the reason for his discharge, but that it was seized upon in an attempt to
cover up the true motive, namely, to rid Respondent of a union adherent whom it
unsuccessfully sought to dissuade from supporting the Union. I so find and conclude.
b. Roger Om berg
With respect to this employee I also find and conclude that the General Counsel
has made out a prima facie case which Respondent failed to refute. That Langford
44 Langford's statements to Allen, Kennedy, and Hunt, and Schriver's statement to.
Kellum, above detailed , plainly reflects Respondent 's hostile reaction to the appearance
of the union buttons in the plant.
4c In fact the rules provide for discharge only for a third such offense.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded Omberg as among those employees who would be opposed to the Union,
is clear from his remarks to Shaw, and his subsequent remarks to Omberg. It is
uncontroverted that during the approximately 80 days that Omberg worked for
Respondent , he was never told by any superior that his performance was unsatis-
factory, nor was his work ever criticized . Not until the day following the election,
when his union adherence was revealed, was he told that he was "not cleaning up
fast enough ," and that he was being discharged for that reason . Rhoades' general
testimony that Omberg's work was deficient because he "was better at talking than
he was at working ," 46 is, I find and conclude , insufficient to refute the prima facie
case established by the evidence adduced by the General Counsel. Moreover, I
deem it significant that Flannigan , Omberg's foreman , the man best qualified to
speak with respect to Omberg 's work performance , was not called as a witness by
Respondent , nor was the failure to call him explained . As the Supreme Court said
in Interstate Circuit V . United States, 306 U.S. 208 , 266: "The production of
weak evidence when strong is available can lead only to the conclusion that the
strong would have been adverse."
c. J. C. Riggs
The facts set forth in section I, B, 3, c, above , plainly establish a prima facie case
that the change in Riggs' duties and the resultant reduction in his compensation was
discriminatorily motivated , and I so find and conclude. The fact that Riggs was the
only employee to operate the small forklift for approximately a year, and that he
was taken off that work, with the resultant loss of pay , immediately following the
Union's victory at the election and Riggs ' wearing the union button in the plant,
when considered in the light of Respondent 's union animus disclosed by this record,
admits of no other conclusion , particularly in view of Respondent 's failure to give
any explanation or justification for its conduct.
d. Alton Allen
On the facts surrounding Allen's discharge on July 9, set forth above , I find and
conclude that the General Counsel has failed to prove that such discharge was for
reasons other than cause. Although Allen was , prior to the election , interrogated
about his union activity , and the day following the election was the subject to Lang-
ford's remarks about the wearing of union buttons , no action was taken by Respond-
ent against him between approximately May 29, and his discharge on July 9. The
circumstances surrounding Allen's discharge were, as distinguished from those which
brought about Kellum's discharge , entirely of his own making . Whether one regards
Respondent 's position as reasonable or unduly harsh , it was certainly a position which
Respondent was entitled to take , and I find the General Counsel's proof insufficient
to establish that such position was a pretext.
Accordingly , I shall recommend dismissal of this allegation of the complaint.
e. Bradshaw , Smith, and Knox
I find and conclude that the General Counsel has failed to establish that the layoff
of Bradshaw , Smith, or Knox was discriminatorily motivated . As set forth above,
these men were all hired on the same day, and were the most junior employees in
their department . They were admitted hired as temporary employees because of the
volume of work then available , and were told that there was no assurance that their
employment would be permanent There is no evidence to impeach that offered by
Respondent that these men were laid off for lack of work; that no one was hired to
replace them ; and that on several occasions , when extra work became available they
were recalled and were permitted to work until the workload again leveled off
While it may be suspicious that these layoffs occurred on the day following the elec-
tion , when they and other employees first wore union buttons in the plant , suspicion
is not a sufficient substitute for proof.
Accordingly , I shall recommend that the complaint be dismissed insofar as it
alleges that the layoff of Bradshaw , Smith, and Knox was discriminatorily motivated.
f. The withholding of wage increases from specific employees
On the evidence set forth in section I, B, 3, f, above, I find that Respondent with-
held automatic increases from employees Mills, Farquhar , Davison , Gordon, Brough-
ton, and Holbert, because its employees had eneaged in activities protected by Section
7 of the Act, as alleged in the complaint . The evidence adequately demonstrates
se Under the most favorable interpretation of Rhoades ' testimony , he only observed
Omberg about half of his working time.
CERTAIN-TEED PRODUCTS CORPORATION 511
that on varying dates in July and August 1964, each of the six employees above
referred to became entitled to an automatic step increase which Respondent admits
they did not receive by reason of its suspension of the operation of the wage progres-
sion plan immediately following the election on May 28. As I have heretofore found
that the aforesaid suspension was in retaliation for the employees having selected
union representation , it follows that Respondent 's conduct in withholding the auto-
matic step increases from the aforesaid employees , constituted discrimination against
them regarding a condition of their employment , and discouraged membership in
the Union, in violation of Section 8(a)(3) and (1) of the Act. I so find and
conclude.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
II. THE REMEDY
Having found that Respondent engaged in unfair labor practices as heretofore
set forth , it will be recommended that it cease and desist therefrom and take affirma-
tive action , set forth below, found necessary and designed to effectuate the policies
of the Act.
Having found that Respondent interfered with, coerced , and restrained its employ-
ees in the exercise of rights guaranteed by Section 7 of the Act-the basic purpose
the Act was designed to achieve-I conclude from the totality of the conduct herein
found, and in light of Respondent 's prior violations , that Respondent should, and I
so recommend , be required to cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of rights guaranteed to them
by Section 7 of the Act. N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4);
California Lingerie Inc., 129 NLRB 912, 915
Having found that Respondent discriminatorily discharged Vance Kellum and
Roger Omberg , and discriminatorily changed the duties and reduced the compensa-
tion of J. C. Riggs , it will be recommended that Respondent offer to each of them,
immediate , full, and unconditional reinstatement to his former or substantially
equivalent position , without prejudice to his seniority or other rights , privileges, or
working conditions , and make each of them, as well as James C. Mills , Travis E.
Farquhar, William S. Davison, Jerry W. Gordon, James W. Broughton, and Jesse R.
Holbert who, as heretofore found, were discriminatorily deprived of wage increases
due them, whole for any loss of earnings they suffered by reason of the discrimination
against them , by paying to each a sum of money equal to the amount he would have
earned from the date of the discrimination against him until such discrimination has
been fully eradicated , less his net earnings during the period of such discrimination.
Backpay with interest at the rate of 6 percent per annum , shall be computed in the
manner set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By the conduct referred to in section I, C, 1, paragraphs (a) through (p),
hereof, Respondent interfered with, restrained , and coerced its employees in the
exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By the conduct referred to in section I, C, 3, a, b, c, and f, above, Respond-
ent discriminated against employees in regard to their tenure of employment, and
terms and conditions thereof, to discourage membership in the Union, and thereby
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have been specifically found, as
above set forth, the General Counsel has failed to establish by a preponderance of
the evidence the remaining allegations of the complaint herein, and it will be recom-
mended that said complaint be, to that extent , dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case , and pursuant to Section 10(c) of the National Labor Rela-
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, as amended, it is recommended that Respondent, Certain-Teed Products
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their membership in, views about, or
activities on behalf of, United Stone and Allied Products Workers of America, AFL-
CIO, or any other labor organization, or directly or by implication promise benefits
to any employee for ceasing to assist or support the aforesaid Union or any other
labor organization.
(b) Distributing to employees and requesting that they display stickers or other
insignia indicating that employees do not want a union, or otherwise requiring
employees to declare themselves as for or against any union.
(c) Telling white employees that they may be replaced by Negroes, or Negro
employees that they may be replaced by whites, if a union is selected as the repre-
sentative of its employees.
(d) Telling employees that a wage increase had been decided upon, but because a
union is on the scene, employees would have to strike to get it, or any other statement
of similar import.
(e) Threatening to replace any employee who engaged in a strike in support of the
Union, or any statement of similar import.
(f) Telling employees that management is disappointed in them because of their
display of union buttons or other support of any union, or any statement of similar
import
(g) Telling employees that it would like to do something nice for those who voted
against the Union, or making any other statement of similar import.
(h) Revoking or withholding toilet or water fountain privileges from employees,
withholding wage increases from employees, or changing any other term or condition
of employment, because they select a bargaining representative, or engage in any
other activity protected by Section 7 of said Act.
(i) Engaging in surveillance of its employees, or in any conduct which can reason-
ably be calculated to convey to its employees the impression that their union activities
are under surveillance.
(j) Discouraging membership in the aforesaid Union, or any other labor organiza-
tion of its employees, by discriminatorily discharging, or changing any terms or con-
dition of employment, or in any other manner discriminating against any employee
in regard to hire, tenure, or any term or condition of employment.
(k) In any manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form, join, or assist labor organizations,
to 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 and all such activities.
2. Take the following affirmative action found necessary to effectuate the policies
of said Act:
(a) Offer to Vance Kellum and Roger Omberg immediate, full, and unconditional
reinstatement to their former or substantially equivalent positions, and forthwith
restore J. C. Riggs to the same or a substantially equivalent position held by him on
May 28, 1964, without prejudice to their seniority or other rights, privileges, or work-
ing conditions.
(b) Make whole Vance Kellum, Roger Omberg, J. C. Riggs, James C. Mills, Travis
E. Farquhar, William S. Davison, Jerry W. Gordon, James W. Broughton, and Jesse
L. Holbert for any loss of earnings they may have suffered, severally, in the manner
set forth in the section hereof entitled "The remedy."
(c) Notify Vance Kellum and Roger Omberg, if they, or either of them is presently
serving in the Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
records, timecards, personnel records and reports, and all other records necessary or
useful to determine or compute the amount of backpay due, as herein provided.
(e) Post at its plant in Hillsboro, Texas, copies of the attached notice marked
"Appendix." 47 Copies of said notice, to be furnished by the Regional Director for
47 In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words, "the Recommended Order of a Trial Exam-
iner" in the notice. In the further event that the Board's Order be enforced by a decree
of a United States Court of Appeals, the words, "a Decree of the United States Court
of Appeals , Enforcing an Order" shall be substituted for the words , "a Decision and Order".
CERTAIN-TEED PRODUCTS CORPORATION 513
Region 16 of the Board (Fort Worth, Texas), shall, after being signed by an author-
ized representative of Respondent, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days from the
date of posting, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(f) Notify the said Regional Director for Region 16, Fort Worth, Texas, in
writing, within 20 days from the date hereof, what steps Respondent has taken to
comply herewith 4s
If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT coercively interrogate employees as to their membership in,
views about, or activities on behalf of, any union, or directly or by implication
promise benefits to any employee for ceasing to assist or support any union.
WE WILL NOT distribute to or ask employees to display any sticker or other
insignia indicating that our employees do not want a union, or otherwise require
employees to declare themselves as for or against any union.
WE WILL NOT tell our white employees that they may be replaced by Negroes,
or our Negro employees that they may be replaced by whites, if our employees
select union representation.
WE WILL NOT tell our employees that a wage increase had been decided upon,
but because a union is on the scene employees will have to strike to get such wage
increase, or make any statement of similar import.
WE WILL NOT threaten our employees with replacement if they engage in a
strike in support of any union, or make any statement of similar import.
WE WILL NOT tell our employees that we are disappointed in them because
they display union buttons, or otherwise indicate their support of any union, or
make any statement of similar import.
WE WILL NOT tell our employees that we would like to do something nice for
those who vote against a union in any election that may be held among our
employees, or make any statement of similar import.
WE WILL NOT revoke or withhold toilet or water fountain privileges, or wage
increases from our employees, or change any other term or condition of employ-
ment, because our employees select a union to represent them, or because they
engage in any other union activity which is protected by law.
WE WILL NOT engage in surveillance of our employees, nor in any conduct
which can reasonably be calculated to convey to our employees the impression
that their union activities are under surveillance.
WE WILL NOT discriminate in the hire, tenure, or any term or condition of
employment of our employees to encourage or discourage membership in any
union.
WE WILL offer Vance Kellum and Roger Omberg immediate, full, and uncon-
ditional reinstatement to their former or substantially equivalent positions, and
restore J. C. Riggs to the same or a substantially equivalent position held by him
on May 28, 1964, without prejudice to their seniority or other rights, privileges,
and working conditions.
WE WILL make whole Vance Kellum, Roger Omberg, J. C. Riggs, James C.
Mills, Travis E. Farquhar, William S. Davison, Jerry W. Gordon, James W.
Broughton, and Jesse R. Holbert for any loss of earnings they may have suffered
by reason of the discrimination against them.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist
the above-named union or any other labor organization of our employees, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purposes of mutual aid, or to refrain from
any and all such activities.
796-027--6t3---vol. 153-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becoming or remain,
ing members of any labor organization.
CERTAIN-TEED PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Vance Kellum and Roger Omberg if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice or
compliance with its provisions.
Metropolitan Life Insurance Company and Insurance Workers
International Union, AFL-CIO. Case No. 7-CA-4636(2).
June 25, 1965
DECISION AND ORDER
On March 16,1965, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner as modified herein.
I The first two dates referred to in footnote 4 of the Trial Examiner's Decision should
read, respectively, "November 28, 1962" and "August 1963".
The Respondent urges us to overrule the Trial Examiner's findings that District Man-
ager Speyer interrogated applicant Nunnally on December 12, 1963, about his union activity
and told him that he would not be rehired by Respondent if he had signed a union card.
As the Respondent correctly points out, the Trial Examiner's summarization of Speyer's
testimony regarding this interview is, in one respect, not wholly in accord with the record.
In view, however, of the weight given by the Trial Examiner to demeanor considerations
in his decision to credit Nunnally, whose testimony he considered "forthright and circum-
stantial," we do not find this minor factual discrepancy to be of sufficient importance to
warrant overruling the Trial Examiner on this point. Standard Dry Wall Products, Inc.,
91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
153 NLRB No. 52.