Certain Teed Products Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1966

161 N.L.R.B. 88 (N.L.R.B. 1966)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the R*s ogdent has engaged in unfair labor practices within the meaning of
Section ,,a) (1) of the Act
4 84 dascrimmatmg with respect to the hire and tenure of employment of
Gary A. M'achaby the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting cam
merce within the meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]
Certain Teed Products Corporation and United Stone and Allied
Products Workers of America, AFL-CIO-CLC Cases 16-CA-
p383 and X387 October 19,1966
DECISION AND ORDER
On Ju e 13, 1966, Trial Examiner Ivar H Peterson issued his
Decision in the above entitled proceeding, finding that the Respond
end had engaged in and was engaging in certain unfair labor prat
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examen
er's Decision He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
brief in support, and the General Counsel filed cross exceptions
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 JOhairlrian McCulloch and Members Fanning and Jenkins]
The board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no pre]udicial error was committed The
rulings are hereby affirmed The Board has considered the entire rec.
otd) In this case, including the Trial Examiner's Decision, the excep
tiolis and, brief, and the cross exceptions, and hereby adopts the Trial
Examiner's findings, conclusions, and recommendations, except to the
extent modified herein
Lie find it unnecessary to reach the question raised in the General Counsel a cross
exdeptidn I concerning a continuing duty to bargain at least until August 12 1,965 by
reason of the time consumed by the Respondent in requesting review of the Regional
Director a decision at the beginning of the certification year The Trial Examiner treated
this problem at footnote 16 of his Decision Without passing upon that facet of the
8(a) (5) violation we fully agree with the Trial Examiner that the record here establishes
a refusal to bargain as of June 26 1965 within a period of 1 year after the Union e
Jqly 2 19641, certification
As to cross exception 2 We find merit in the General Counsel s contention that pendency
k nnieniedied unfair labor practices-in this ease extensive 8(a)(1) and ( 8) violations--
found by the Board in its prior decision 153 NLRB 495 additionally warrants the Eliding
of 8(a) (5) and ( 1) violation based upon the Respondents July 6 1965 withdrawal of
Wognitlon Itseirbed to the union s apparent loss of majority
161 NLRB No 11
CERTAIN-TEED PRODUCTS CORP 89
[The Board adopted the Trial Examiner's Recommended Order
and dismissed those portions of the complaint as to which no viola-
tions have been found]
TRIAL EXAMINER S DECISION
STATEMENT OF THE CASE
Upon charges duly filed 1 by United Stone and Allied Products Workers of
America AFL-CIO-CLC herein called the Union against Certain Teed Products
Corporation herein called the Respondent, the General Counsel of the National
Labor Relations Board by the Acting Regional Director of Region 16 issued a
consolidated complaint against the Respondent on August 11 1965 As amended at
the hearing the complaint alleged that the Respondent had engaged in unfair labor
practices violative of Section 8(a)(1) (3) (4) and (5) of the Act In its answer
the Respondent denied that it had engaged in any of the alleged unfair labor
practices
Pursuant to notice a hearing was held before Trial Examiner Ivar H Peterson
in Hillsboro Texas on October 27 to 29 and November 15 to 19 1965 All parties'
were represented by counsel and participated in the hearing Briefs submitted by
the General Counsel and the Respondent have been duly considered
Upon the entire record in the case and from my observation of the witnesses
and their demeanor I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent a Maryland corporation maintains its principal office and place
of business in Ardmore, Pennsylvania and plants in several States including the
plant at Hillsboro Texas with which this proceeding is concerned , where it manu-
factures various asbestos products During the year preceding issuance of the com-
plaint the Respondent manufactured and shipped from the Hillsboro plant finished
products valued in excess of $50 000 directly to points outside the State of Texas
and purchased and delivered to this plant raw materials valued in excess of $50 000
from points outside the State of Texas The Respondent admits , and I find that it
is engaged in commierce within the meaning of Section 2(6) and (7) of the Act.
A THE LABOR ORGANIZATION INVOLVED
United Stone and Allied Products Workers of America , AFL-CIO-CLC is a
labor organization within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background and issues
This is the third unfair labor practice proceeding involving the Respondents
Hillsboro plant instituted by the Union after it commenced organizational activities
in December 1961 In the first case decided by the Board on June 30 1964 2 It was
found that by various acts and statements occurring in 1962 and 1963 the Respond
ent had violated Section 8(a)(1) of the Act and, in violation of Section 8(a)(2)
of the Act had in January 1963 formed and thereafter dominated a Suggestion
Committee The Board further found that the Respondent had not violated Section
8(a) (3) and (4) of the Act In the second case decided by the Board on June 25
1965 3 the Respondent was found to have interfered with the Section 7 rights of its
employees by various acts and statements both before and after a Board conducted
election held on May 28 1964 and on the day after the election had discnmina
tonly discharged two employees and at about the same time unlawfully changed
the duties and reduced the wage rate of another employee Other allegations of
violation of Section 8(a) (1) and (3) were dismissed
I In Case 16-CA-2888 charges were filed on June 28 1965 and in Case 16-CA-2387
on June 30 1965
' Certain-Teed Products Corporation 147 NLRB 1517
' Certain-Teed Products Corporation 158 NLRB 495
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issues in the present proceeding are
I Whetl#er the Respondent violated Section 8(a)(3) and (4) of the Act (a) by
discharging Mickey Crist in May 1965 (b) by refusing to recall or rehire four
employees-J B Bradshaw Clemmie Smith Eugene Knox and James C Riggs-
m June 1965 and (c) by refusing and failing to promote James Corbin to a better
rated job in August 1965
2 Whether the Respondent unlawfully refused to bargain with the Union certi
fled on July 2 1964 as the exclusive representative of the Respondents production
and maintenance employees by engaging in surface bargaining and refusing to
make economic counterproposals and by withdrawing recognition from the Union
on July 6 1965 and unilaterally placing in effect a wage increase on July 8 1965
B The alleged discrimination in employment
1 The discharge of Crist
Mickey Crist was first hired by the Respondent in September 1964 as a laborer
in the manufacturing department under Foreman William Cole In January 1965
after receiving a 10 cent increase at the end of his 90 day probationary period
Crest was assigned as a floorman at the end of the pipe manufacturing line at no
increase in pay His duties in this capacity included stenciling pipe to indicate the
date size and shift assisting in operating an overhead hoist used to load pipe from
the end of the conveyor line upon large metal trays and then by means of a fork
lift loading the trays of pipe on the autoclave train prior to the pipe being placed
in the oven and the transporting and stacking pipe on the loading dock
Crest signed a union authorization card in about December 1964 shortly after
completing his 90 day probationary period In April 1965 he authorized A J Ship
pey the union representative engaged in organizational activities at the plant to
include his name in a charge (Case 16-CA-2331) filed by the Union on April 29
alleging that the Respondent since October 30 1964 had discriminatorily withheld
wage increases from Crist and four other named employees Crist testified that
after he was named in this charge James Landrum general foreman of the manu
factunng department observed his work more closely than theretofore So far as the
record shows Crist engaged in no union activity except as stated above 4
On May 26 1965 Crest caused considerable damage to the door frame of an
overhead door hitting it with an empty tray as he was backing the forklift through
the doorway coming from the dock area 5 After Plant Manager Naaman Rhoades
and General Foreman Landrum had Inspected the damage Landrum conferred
with Foreman Cole later in the day and shortly before 4 p in Cole discharged
Crist at the direction of Landrum According to Cole he and Landrum first con
sidered giving Cnst a 5 day suspension but concluded that wouldn t do any good
and thereupon agreed to terminate him Jesse Hunt still employed as a floorman
with duties similar to those of Crist but on the following shift and who was a sup
porter of the Union testified that he spoke to Cole about 4 15 p m after observing
Cole speak to Crest and asked Cole what was the trouble with Mickey Cole
replied that he had to lay him off because matters had come to the point where
it was either him [Cole] or Mickey
The General Counsel contends that Crest s discharge was in fact brought about
because of his union activity and in reprisal for having permitted his name to be
included in the charge filed a month earlier alleging that he and others had been
unlawfully deprived of wage increases The Respondents defense is in substance
that the May 26 incident involving damage to the door frame was but the final inci
dent of several involving Crist that had occurred after he became a floorman in
January and which demonstrated that he was a careless workman
About a month after being assigned the job of floorman at the end of the pipe
conveyer line Crest admittedly damaged an air duct by raising the forklift too high
while moving an empty pip-, tray For this so he testified Foreman Cole cautioned
him to be more careful Crist also testified that in March he bent an empty pipe tray
by running into it with the forklift loaded with a tray of pipe it was necessary to
send the bent tray out of the plant to be repaired On another occasion during the
* A complaint was issued in Case 16-CA-2331 on June 30 1965 hearing thereon was
indefinitely postponed on September 8 and on October 29 during the course of the hearing
in the instant matter the Union s request to withdraw the charge was granted by the
Acting Regional Director
5 John Taylor former maintenance mechanic on Cole s shift and president of the Union
local at the time estimated the cost of repairing the damage at $80 or $90
CERTAIN-TEED PRODUCTS CORP 91
winter he ran the forklift oft the dock with no apparent damage being unable
to stop its movement because there was ice on the dock Again Cole cautioned him
to be careful One aspect of his job required that he stencil pipe indicating the class
of pipe the date and the shift on which it was produced and to cut the proper
stencil for this purpose Foreman Cole testified that Crist was forever getting the
wrong date on the stencils and also misclassifying pipe Crist testified he had been
corrected about a month before his discharge for smearing the ink while applying
stencils but was unable to recall whether Cole had cautioned him about incorrect
dating Cole further testified corroborated by employee Hunt who performed the
same job as Crist on the following shift that Foreman Bernart Lenart (also Leon
and in the transcript) had several times complained to Cole about the untidy and
disorganized condition in which Crist left the dock area Crist acknowledged that
such complaints had been called to his attention by Cole more than once Cole also
testified that Crist stacked pipe in the trays in such fashion that the pipe would hang
over the ends of the trays with the result that when the trays were loaded in the
autoclave the protruding pipe were apt to be broken by being bumped into pipe in
the other loaded trays Crist admitted that Cole had warned him about stacking the
pipe properly inside the trays Finally Cole testified that Cnst took considerably
more time than was allowed on break periods
John Taylor who had been the shift maintenance mechanic on Foreman Cole s
shift until he quit late in June 1965 and had been president of the Union local dur
iiig the latter part of his employment testified to having three conversations with
Cole regarding the wbrk performance of Cnst and his discharge Early in May
Cole told Taylor that Plant Manager Rhoades had talked to him (Cole) about
Mickey Cnst and some of the accidents in the plant apparently Rhoades had
mistakenly b.dieved that Crist rather than another forklift operator had damaged
a guide rail with the forklift Later Cole told Taylor that Roades and Landrum
were `watching James Corbin and Mickey Crist whereupon Taylor went and told
both the boys to do their best and perk up After Crist s discharge Cole told
Taylor that he really didn t want to fire Mickey and had recommended a 5 day
suspension but that Plant Manager Rhoades said that he thought it would be best
if we could just get rid of Mickey now and let him go I credit Taylor whose
testimony was uncontradicted
There is evidence that other forklift operators on occasion had mishaps resulting
in damage In one instance the operator was suspended for 3 days in other instances
no disciplinary action was taken The evidence however is too fragmentary to per
and a comparative evaluation of the circumstances
The facts set forth above which rest upon testimony that is virtually uncontro
vtrted establish that Cnst was a somewhat careless and inattentive workman In the
course of about 5 months he had four mishaps in operating the forklift three of
them resulting in damage to plant structures or facilities In addition Cost conced
edly had been cautioned about the manner in which he placed pipe in the autoclave
trays and maintained the dock area Foreman Cole s testimony that Cnst was
always taking too long on his breaks while uncontradicted impressed me as some
what exaggerated both With respect to the frequency of such occurrences and the
length of time Crist overstayed the allotted break period However I accept Cole s
testimony that on occasion Crist extended his break period that Cnst s relief man
had registered complaints about this with Cole and that Cole had spoken to Cnst
about it
So far as it appears Crist s union activity was limited to signing an authorization
card and in April authorizing his name to be included with those of other employ
ees in the charge filed by the Union alleging discrimination in that raises had been
withheld Presumably Crist also attended union meetings as did other union adher
ents Aside from the charge which listed Crist s name first as one of five employees
allegedly discriminated against there is no evidence that he took a leading role in
enlistmg other employees to join in the charge or that any management representa
tive or supervisor spoke to him about the charge or about any aspect of union activ
ities Two others named in this charge James Corbin and Maxie Riley were still
employed at the time of the hearing
While the issue is by no means free from doubt I conclude that the General
Counsel has failed to establish by a preponderance of the evidence that the
Respondent discharged Crist on May 26 1965 because of his union activity or
because he had authorized the filing of unfair labor practice charges in his behalf
The weight of the credited testimony persuades me that Crist was terminated on
May 26 because that day he had caused substantial damage to a door frame by
striking it with an empty tray he was transporting with the forklift Considering his
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past mishaps with the forklift and other shortcomings to which his attention had
been called during the few months he had worked at the take -off end of the pipe
machine I think the Respondent could reasonably conclude that he was careless in
the operation of the forklift and generally deficient in the performance of his job
and therefore should be terminated It will be recommended that the complaint be
dismissed with respect to Cnst
2 The refusal to rehire Bradshaw Knox and Smith
Bradshaw Knox and Smith had been first hired by the Respondent as employees
in the shipping and receiving department on September 16 1963 They were laid off
on May 29 1964 thereafter all three were recalled on one occasion (apparently
in July) for 6 days of temporary employment and Bradshaw and Knox later were
recalled for 3 days in August Smith was not available on this last occasion when
the Respondent sought to recall him Their layoff on May 26 1964 was found by
Trial Examiner Nachman in his decision issued March 25 1965 not to have been
discruninatonly motivated the Board affirmed this finding in its decision issued
June 25 1965 (153 NLRB 495)
On Saturday June 12 1965 Bradshaw and Knox having heard that the Respond
ent was hiring some employees went to the plant to see Jack Shadle foreman of the
shipping and receiving department under whom thy had worked According to
Bradshaw and Knox when they asked Shadle whether the Respondent was recalling
any former employees who had been laid off Shadle replied in the negative asked
whether any new employees were being hired Shadle responded that one man
named Russell had been hired 6 Bradshaw testified that when he asked Shadle if he
and Knox could file an employment application Shadle replied that it would not do
any good as they already had applications on file and that Personnel Manager John
Langford is not going to recall any of the old hands that he laid off Bradshaw
testified he asked three times why laid off employees would not be recalled and that
Shadle answered he did not know why but we re just not going to do any recalling
Knox testified to the same effect Shadle according to Bradshaw and Knox informed
them that Langford was then at National Guard camp and that nothing could be
done until Langford returned
Shadle testified that Bradshaw and Knox asked for employment applications and
that he told them at that time that so far as knew they still had an application
on file but I wasn t positive about it that the person for them to see was
Mr Langford, that he was off to camp and would be back and that it appeared
to me that they wouldn t need to make an application at that time until they had
talked to him Shadle denied that he told them the Company did not intend to
recall or rehire anyone who had been laid off
On Monday June 21 Bradshaw and Knox returned to the plant . They spoke to
a guard stationed in the guardhouse who telephoned Langford s office The guard
reported to them that Langford was tied up for the day and would not see anyone 9
Smith testified that be called Langford at his home the evening of June 22 stated
he had heard the Company had been hiring and that he `wondered why I hadn t
been recalled According to Smith Langford replied that he had hired one or two
employees but didn t know whether any more would be hired Smith further testa
fled that he told Langford he had not had a chance to come by the plant to put in
an application to which Langford replied there was no need for him to do so as
he already had one on file In answer to Smith s query about the chances of corn
iiig back to work, Langford replied that at that time he did not know that he
would have to check with Foreman Shadle and would get in touch with Smith if his
work record was satisfactory Smith further testified that he made the call from
Union Representative Shippey s motel room where a meeting of some employees
was being held and at Shippey s suggestion
The Respondents employment policy published in an employee handb9ok pro-
vides that seniority and employment status are lost if an employee is absent, by
reason of layoff or otherwise for 1 year or a period equal to the total length of
employment whichever is the lesser Bradshaw Knox and Smith each had a total
length of employment of about 83'a months beginning in September 1963 Accord
ing to Langford each lost his seniority and employment status in the middle of
6 A seniority roster prepared by the Respondent as of June 24 1965 shows one Edward
Russell in the shipping and receiving department with a seniority date of June 2 1965
T Langford had been at National Guard camp from June 4 through June 20 and
June 21 was therefore his first day in the office in 2 weeks
CERTAIN-TEED PRODUCTS CORP. 93
May 1965, pursuant to this policy. Therefoie, they were not thereafter carried on
the seniority list and, according to Langford, were "in the same category as any-
one else seeking initial employment with us." The employee handbook further pro-
vides that when additional employees are required, "qualified laid-off employees
will be recalled in order of length of service before new employees are hired."
Concerning the appearance of Bradshaw and Knox at the guard shack, Lang-
ford testified that according to his notes, made at the time, this occurred at 10 a.m.
on June 25, rather than at 8 a.m. on June 21 as they testified. In this, I find Lang-
ford to be in error, and accept the testimony of Bradshaw and Knox as the record
shows Langford was in Dallas attending a negotiation session with the Union at that
time on June 25. Langford testified that he was "swamped" when Bradshaw and
Knox sought to see him, as this was his first week in the office after National
Guard camp, and that he told the guard to tell Bradshaw and Knox he could not
see them at that time. He further testified he did not then have any vacancies.
With respect to Smith, Langford testified Smith telephoned him on "Saturday
morning at 9 a.m., on July 12"-rather than on the evening of June 22 as Smith
claimed-and that he told Smith he had a full crew at that time. Langford stated
he "made a note in a little calendar book" of Smith's call and placed it in Smith's
personnel folder. The notation was not produced. Here again I find Langford to be
mistaken as to the date, as July 12, 1965, fell on a Monday and not a Saturday
as he testified; moreover, Smith impressed me as having a good recall of the date
and the circumstances under which he made the call. I find that Smith spoke to
Langford on June 22.
Langford testified that Smith was "a real good employee" and that Bradshaw
and Knox "were adequate, but in comparison to our other work force, they leave
a lot to be desired." He stated that the three men would be considered for reem-
ployment and hired if they were the best qualified applicants for the job. He also
testified he had not advised Shadle that laid-off employees, including the three
here involved, would not be recalled.
On June 21, while Bradshaw and Knox were in the guardhouse, and were told
Langford was too busy to see them, one R. B. Bearden was also there waiting to
be interviewed by Langford. A seniority roster as of June 24, 1965, submitted by
Respondent to the Union at the June 25 negotiating session, lists two new employ-
ees in the shipping and receiving department, Robert Bearden and Mark Davis,
each with a seniority date of June 23, 1965. (As noted above, another new
employee, Russell, had been hired on June 2.)
I am not convinced that Bradshaw, Knox, and Smith were not rehired or
recalled in June 1965 because of their adherence to the Union or because charges
respecting their original layoff in May 1964 had been filed. The layoffs were found
nondiscriminatory by the Trial Examiner in his Decision and by the Board in its
Decision, 153 NLRB 495. All of them had been recalled after their layoff, Brad-
shaw and Knox twice and Smith once. It is clear that under the Respondent's
established policy these three men had lost their seniority and employment status
a month before they sought employment in June 1965. They were not, therefore,
entitled to be recalled, and given preference over other applicants for employment,
contrary to the impression they entertained as revealed in their testimony con-
cerning their conversations with management. In view of this stated policy and the
further requirement of written application, and considering that a new employee
(Russell) had been hired in the shipping and receiving department on June 2, 10
days before Bradshaw and Knox spoke to Foreman Shadle, the statement ascribed
to Shadle by Bradshaw and Knox-to the effect that Respondent was "not going
to do any recalling"-is nothing- more than a statement of a long-established pol-
icy and does not necessarily connote a discriminatory intent as to Bradshaw and
Knox. I accept Shadle's account that they would have to see Langford to find out
whether they needed to file new applications in order to be considered for employ-
ment, or whether their old applications would suffice for this purpose (as Shadle
apparently thought). The reasonable inference, which I draw, is that Bearden and
Davis, whose seniority date is June 23, 1965, had filed applications prior to June 21
(when Bradshaw and Knox attempted to see Langford for that purpose) and had
in fact been hired by the time Smith talked to Langford the evening of June 22.
So far as appears, none of the three men pursued his effort to be reemployed by
actually filing a new employment application. Nor is there any evidence regard-
ing what, if any, vacancies arose after the latter part of June.
I have considered the fact that in prior proceedings the Respondent has been
found to have committed substantial unfair labor practices. However, that does
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not automatically taint every subsequent action or permit suspicion to be substi
tuted for proof Considering all the evidence I conclude that it falls short of estab
lishing that Bradshaw Knox and Smith were discriminatorily refused recall or
rehire in June 1965 because they had filed earlier charges of discrimination in
connection with their May 1964 layoffs Accordingly these allegations of the coin
plaint will be dismissed
3 The refusal to rehire J C Riggs
By amendment of the complaint during the hearing the General Counsel alleged
that Respondent had discriminated against Riggs by refusing to recall or rehire
him on or about June 22 1965 because of his union activity and because he had
filed charges or given testimony in the prior proceeding In that case ( 153 NLRB
495) the Board had found in agreement with the Trial Examiner that Riggs had
been discriminated against with respect to job duties and compensation from
May 29 1964 In November 1964 while that issue was pending before the Trial
Examiner Riggs quit the Respondents employ So far as appears Riggs first sought
to be rehired by the Respondent on June 21 1965
During the evening of June 21 Riggs without prior arrangement called at the
home of Foreman Shadle under whom he had previously worked According to
Riggs the sum of the conversation was that he stated to Shadle that he had heard
that you re looking for some experienced help out at the plant Shadle replied that
one man had been hired and indicated that about nine temporary employees would
be hired and that if he got anything good he would give me a buzz Riggs did
not attempt to see any other management official
Shadle testified that Riggs came to his house said he understood the Respond
ent was hiring some people and that he was looking for a soft job Shadle
replied so he testified that the Respondent was hiring some new employees and if
a new epoxy pipe coating process ever gets going we may be hiring quite a num
her of employees There was some talk about Riggs present job construction
work and difficulties connected therewith Shadle testified he told Riggs that he
would keep Riggs in mind and the conversation then ended
Shadle does not do the hiring or interviewing of new employees in his depart
ment This function is performed by Personnel Manager Langford The latter tes
titled without contradiction that the Respondent has consistently followed the
practice of not rehiring permanent employees who voluntarily quit and that his
policy applied to Riggs Langford referred to two other employees who had quit
and later had been refused rehire pursuant to this policy although they otherwise
were desirable workers
I find that the record does not support the allegation that Riggs was refused
rehire in June 1965 Riggs did not apply to Personnel Manager Langford , who does
the interviewing and hiring His only contract was with Foreman Shadle On Riggs
version of their conversation Shadle said that if he got anything good he would
give me a buzz Shadle s account is not materially different he testified he told
Riggs Okay, J C 111 keep you in mind Thus it seems plain that Foreman
Shadle expressed himself as willing to consider Riggs for employment should open
ings occur Riggs, however did nothing further to obtain work with the Respond
ent So far as appears no occasion arose for the Respondent to )apply to Riggs
the no rehiring policy to which Langford testified that the Respondent followed
with respect to employees who had quit There is no basis, in my opinion for
concluding that the Respondent unlawfully discriminated against Riggs by not
rehiring him in June 1965 Accordingly this allegation of the complaint will be
dismissed
4 The failure to promote James Corbin
During the hearing the complaint was amended to allege that James Corbin
was discriminatorily denied a promotion to the job of mixer operator on or about
August 1 because of his union membership and activity and because his name was
included in charges previously filed (Case 16-CA-2331 supra footnote 4) Corbin
was employed July 6 1964 and worked under Foreman Cole as a floorman in
the manufacturing department , and working in that capacity at the time of the
hearing
Corbin testified that about the middle of August 1965 he first spoke to General
Foreman Landrum about being assigned to a mixer job on another shift which
had become vacant because Malcolm Yeaman who had filled the job had quit.
It appears that at the time of this conversation another employee Benme Nors a
floorman about 6 months junior to Corbin had been temporarily working as mixer
CERTAIN-TEED PRODUCTS CORP 95
operator for the period after Yeaman quit (about a month) but had not been
classified as such Corbins testimony is that Landrum on this occasion went down
the seniority list and stated that several floormen senior to Corbin had turned down
the job and that Corbin was in line for it As Corbin was going on vacation about
September 1 Landrum so Corbin testified stated that when Corbin returned from
vacation he d check up and see what he could do for me About the middle of
September after returning from vacation Corbin asked Landrum if anything had
been decided about the mixer job Landrum replied that matters were pretty
mixed up because of vacation and some quits and stated that when we kind of
get things straightened out well we 11 check up on it and see about it About 2
weeks later Corbin again asked whether a decision had been made on the mixer
job and Landrum replied that a decision had not been made 8
Corbin passed his military physical examination on June 10 which made him
subject to 6 months active duty in the National Guard When Corbin first spoke to
Landrum about the mixer job in mid August Landrum asked about his military
service status and Corbin said he had passed his physical The day he testified
November 15 Corbin stated he had received notice to report for duty on Novem
ber 29 Corbin further testified that between the time he passed his physical and
when he last spoke to Landrum about the mixer job he told Foreman Cole that
he wasn t sure when he would be called into military service
The job of mixer operator entails more responsibility than that of floorman and
pays 10 cents more per hour According to Landrum it would take maybe 8
months or a year to qualify as a good mixer operator Corbin had temporarily
worked for 6 days operating the mixer while he was relief man Nors also as
Landrum testified had had a little experience operating the mixer as relief man
on his shift (which was different from Corbin s shift)
The unfair labor practice charge (Case 16-CA-2331) naming Cnst Corbin, and
others as having been discnminatonly denied raises was filed on April 29 1965
and amended on May 25 According to Corbin about June 17 Foreman Cole
warned him to do my work real good and watch out what I do because Plant
Manager Rhoades and General Foreman Landrum were trying to find some
excuse to fire me Corbin further testified that Cole said he didn t know what
they had against me or why they didn t like me but he said that his feelings was
that it was on account of the union activities Cole was not questioned about his
conversation
While the Respondent recognizes departmental seniority it does not follow a
system of strict seniority in making promotions The employee handbook provides
that employees are placed in jobs according to their experience qualifications, and
ability if ability and work records are relatively equal preference will be given
to the senior employee " The handbook further provides that vacancies in jobs
above labor grade 3 (the job of mixer operator was above this grade ) "which
cannot be filled by normal move up the progression lines will be posted on the
bulletin board for 24 hours however such vacancies may be filled immediately
pending final selection of the applicant " I infer from Landrum a testimony that at
the time of the hearing three of the four incumbents in the job of mixer operator
had not been so classified although they were being paid the rate applicable to the
job, and from Corbin s testimony that when he last spoke to Landrum early in
October he was told no decision had been made on the mixer job that Nors who
was in the normal line of progression and on the shift on which the vacancy
occurred was temporarily placed in the job pending a final selection At the time
of the hearing Nors was still carried on the payroll as a floor man according to
Langford
No evidence was adduced by the Respondent questioning the ability or general
qualifications of Corbin for the job of mixer operator However it seems evident
that in view of his limited experience in doing the job for a brief period of 6 days
and the fact that substantial experience in it was required to become fully qualified
his imminent entry into the military service was a relevant factor to be considered
in determining whether to assign him to the mixer operator job in mid August
when he first asked for it At that time Nors had been performing the job for a
month Corbin testified that when he first spoke to Landrum about the mixer job
Landrum asked whether he had passed his physical and Corbin replied that he had
8 Landrum did not controvert Corbin s testimony about the foregoing conversations re-
garding the mixer operator job Landrum testified he believed Corbin brought this matter
up more than once but that he had never promised Corbin would get the job I credit
Corbin s account of his conversations with Landrum
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Corbin s undemed testimony that in June Foreman Cole told Corbin to
do his work real good because Rhoades and Landrum were `trying to find some
excuse to fire Corbin for reasons not known to Cole but which Cole suspected
or felt were based on Corbin s union activities However this opinion entertained
by Cole of the attitude of Rhoades and Landrum toward Corbin is not shown to
have been based on anything more than Cole s feelings I am unable to conclude
that Cole s statement explains why 2 months later Corbin was not given the mixer
operator job that became vacant At the time Corbin was subject to being called
for active duty having passed his physical examination a fact which Landrum
ascertained upon inquiry For about a month before Corbin asked about the job
Nors had been performing it Under these circumstances I think the more reason
able inference is that Landrum concluded not to place Corbin in the mixer job
then being filled temporarily by Nors because Corbin was soon due to be called
for active duty I find that there was no unlawful discrimination in the failure to
promote Corbin and shall accordingly dismiss this allegation of the complaint
C The refusal to barghin
I The negotiations
On May 28 1964 the Union won a Board-conducted election among the
Respondents production and maintenace employees,9 by a vote of 55 to 37, with 1
challenged ballot, out of approximately 93 eligible voters The Respondent filed
timely objections which the Regional Director in a Supplemental Decision issued
July 2 1964 found lacking in merit he accordingly certthed the Union as the
exclusive representative of the employees in the aforesaid unit, within the mean.
sxc of Section 9(a) of the Act The Respondent filed a request for review with
the Board which was denied on August 12 1964 as raising no substantial issues
warranting review
The parties first met for contract negotiations on September 9 1964 Between
then and January 27 1965 when negotiations were suspended not to be resumed
until the following June 25 and 26 the Respondent and the Union met a total of
some 10 or 12 tunes The Unions contract proposals (other than wages) were
submitted at the first meeting on October 6 the fourth meeting, the Union made
its wage proposal At the next meeting on November 5 the Respondent submitted
a counterproposal on items other than wages According to the undemed testimony
of Plant Manager Rhoades he and Joseph McGee, an international representative
of the Union who participated in the negotiations as the Union a crief spokesman
agreed that the economic or cost items would be bypassed until essential agree
anent had been reached on the wording of the other contract clauses .O
Marvin Menaker attorney for the Union who attended all formal sessions
of the negotiations and Plant Mapager Rhoades were the principal witnesses to
testify regarding the contract negotiations . Neither of them testified in any detail
concerning the meetings that were held prior to June 24 and 25, 1965 and it is
therefore not possible to reconstruct the precise course of negotiations through the
sheeting of January 26 and 27, 1965 It is clear, however, that early in the negoti-
ations the parties found themselves in serious disagiesnient regarding them positions
on two interrelated items proposed by the Union (1) hours of work and shift
scheduling and (2) overtime both of which represented substantial changes from
the arrangements then in effect At the conclusion of the November 12 and 13
ineetthge, the Union refused to modify its original proposals in regard to these
subjects under which the Respondent claimed it would be very difficult and uneco-
nomical to operate At the January 26 and 27 sessions a mediator met with the
parties but no progress was made on these so -called hard core items Plant Man
ager Rhoades testified without contradiction that the mediator commented at the
end of the January 27 meeting that the parties appeared to be at a complete dead
6 The unit found appropriate was described as follows in the Regional Directors De-
cision and Direction of Election All production and maintenance employees including
plant clerical employees and shipping and receiving employees at the Employer s Hills-
boro Texas plant but excluding office clerical employees machine tenders inspectors
storeroom men laboratory technicians technical and professional employees guards watch
men and supervisors as defined in the Act The Respondent admits and I find that this
unit is appropriate within the meaning of Section 9 (b) of the Act
10 McGee did not testify
CERTAIN-TEED PRODUCTS CORP 97
lock and suggested no further meetings be scheduled until some change of pose
tion occurred From the conclusion of the January 27 meeting until June 1 when
the Union asked for a further meeting no effort was made by either party to
resume negotiations
On June 1 1965 Menaker counsel for the Union wrote to Respondents coun
sel George Smith suggesting a meeting during the week of June 7 to complete
work on the contract He noted that the Union had reviewed its position and
assumed that the Respondent had done likewise and expressed the belief that it
would be desirable to meet for the purposes of consummating our negotiations and
arriving at a collective bargaining agreement as soon as is reasonably practical
Menaker also stated that the Union `would very much look forward to receiving
the rest of the company s counterproposal at the next meeting apparently refer
ring to the Respondents wage offer On June 8 Smith wrote to Menaker confirm
ing arrangements for a negotiation session in Dallas on June 25
Both Menaker and Rhoades testified concerning the negotiations at the June 25
and 26 meetings their accounts are not in material conflict 11 The June 25 meet
ing began at 10 30 and lasted until about 3 pan, when Rhoades and Langford
left because of an emergency at the plant necessitating Rhoades attention During
this meeting thet Union yielded to the Respondents position regarding work, sched
tiling and overtime the two hard issues separating the parties Agreement was
also reached on other issues of a less critical character Although the Union several
times asked for the Respondents position on wages, it was not forthcoming
At the outset of the Saturday June 26 meeting which began at 10 15 company
representatives advised that the parties should meet through the lunch hour in order
that Respondents attorney Mr Smith could depart on a 2 p in flight to A tlanta
During the Saturday meeting the Union again unsuccessfully asked for the
Respondent s wage proposal According to Menaker s undenied testimony the
Union then proposed that it was prepared to accept as part of the contract (1) the
entire company proposal of November the 5th 1%4 as modified by our dis
cussions (2) the company handbook as modified therein in our discus
sions" and (3) those portions of the Union s original proposal that had been agreed
to, if the Respondent would agree to arbitration and voluntary checkoff of union
dues, and provided agreement was reached on wages At this point which was about
12 15 p.m the Respondents representatives asked for a recess so that Plant Man
ager Rhoades could confer by telephone with his superiors Rhoades was unable to
reach either of the superiors be attempted to call, but did ascertain that both were
en route to attend a convention in Portland Oregon. After the Respondents repre
sentatives had been in recess about 30 minutes or more , Langford returned to the
meeting room, reported that the effort to reach higher management had been unsuc-
cessful, and suggested that the parties adjourn The Umon objected to adjourning
and particularly to the failure of the Respondents representatives to return to
discuss and arrange for another meeting However the Respondents representa-
tives did not return to the meeting room and the matter of a further meeting was
left for future arrangement.
On June 28 Menaker wrote to Smith requesting a meeting for further negotia
bons beginning Thursday July 1, 1965 and continuing until we reach an agreement
or breakdown He also expressed disappointment at the Respondents failure to
come forward with any answer to our proposal and in particular the wage pro-
posal Smith replied by telegram on July 1 stating he was engaged in long ached
uled negotiations on July 1 and possibly July 2,' and that he would be "in later
contact with Menaker Smith did not contact Menaker about a future meeting The
next communication from tthe Respondent to the Union was the following letter
from Rhoades to McGee dated July 6
I would like to officially advise you of something which we both have been
obviously aware of for some good number of days That is we do not feel that
your Umon either does or has , for the past months represented a majority of
our employees within the bargaining unit in which we held the last Labor
Board Election We do therefore decline to recognize your organization as
the collective bargaining agent of our above mentioned employees
n Rhoades testified after a 2 week recess in the hearing He stated he had read Menaker s
earlier testimony and that in substance it seemed quite correct
264-188-67-vol 181-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From all the indications and information which we have received it is
apparent as were your actions apparent in our last negotiations sessions that
your organization no longer represented our employees and that you were fully
aware of this fact
2 The decertification movement
About the middle of May 1965 Rayford Allen an employee told Plant Manager
Rhoades that a group of employees would like to work on a decertification pets
tion Rhoades testified he told Allen that his procedure should be to contact the
director of the Regional Office of the Board in Fort Worth and that he would
have Personnel Manager Langford supply Allen witth the necessary information for
that purpose According to Rhoades he also told Allen that activity in support of
the decertification effort must be conducted completely during non work time and
off the company property Rhoades testified that it seemed to be common knowl
edge that there was a petition being worked up
Under date of June 28 1965 Robert Jones an employee active in the decertffi
cation movement wrote to Plant Manager Rhoades requesting for myself and in
behalf of a majority of the employees of the Hillsboro plant who join with
me in this request that the Respondent not recognize the Union and advising
`that we do not want this or any other union to represent us in any way Rhoades
replied by letter dated June 29 stating that he felt that this matter should be
decided by the National Labor Relations Board and therefore suggest that you con
tact them in regard to this matter
On Saturday July 3 employee Jones called at Rhoades home and handed him
a letter dated July 2 together with a petition bearing the names of 55 of the
Respondents employees Jones letter referred to the request in his earlier letter of
June 28 that the Company not recognize the Union and then continued
In further pursuance of such request and advise I wish to take this means
to deliver to you the enclosed photocopy of Petition addressed to the National
Labor Relations Board containing the signatures of 54 of the present employees
of the Hillsboro Plant of Certain Teed Products Corporation such Petition
having been signed by all of said employees within the last three weeks You
will of course note that such Petition requests the National Labor Relations
Board to conduct an election to decertify the above named Union and expresses
our desire not to be represented by said Union
The text of the petition, headed PETITION TO THE NATIONAL LABOR
RELATIONS BOARD is as follows
We the undersigned employees of the Hillsboro Texas Plant of Certain Teed
Products Corporation do hereby petition and request the National Labor Rela
tions Board to conduct and hold an election for the purpose of decertifying
the Labor Union at said Hillsboro Plant of Certain Teed Products Corpora
Lion the name of said Union being United Stone and Allied Products Workers
of America We do not desire to be represented for purposes of collective
bargaining by this or any other union
Rhoades testified that during the period from mid May when he was first
approached by Allen concerning the decertification effort, until he received the
June 28 letter from Jones he was aware of a petition being circulated as many of
the employees approached him about it He testified however that he avoided
discussing the petition as such with individual employees He did not issue any
instructions to supervisors concerning the circulation of the petition and testified
that no instances of activity in support of the petition being conducted during work
mg time or on company property came to his attention
Rhoades turned the petition over to Langford on July 5 Langford compared the
names of the petition against the payroll or seniority list He did not check for
authenticity of signatures because he had no doubt about the genuineness of the
signatures Rhoades testified that as a result of receiving the petition , and after
consulting with counsel he wrote the July 6 letter to McGee withdrawing recogni
tion of the Union 12
v It appears that Jones and Allen the employees promoting the decertification move
took the petition to the Regional Office and according to Langford s testimonial account
of what the employees reported to him were told that no election could be held because
of pending charges and that the petition was deficient in that it did not show the dates
the signatures were affixed Neither Jones nor Allen testified
CERTAIN-TEED PRODUCTS CORP 99
There is undenied testimony which I credit that General Foreman Landrum
and Personnel Manager Langford each encouraged an employee to join in the
decertification movement Ronnie Gwin still employed by the Respondent testified
that during the period the petition was being circulated Landrum came to him on
the job and asked How s the petition coming and whether Gwin had signed it yet
Gwin who testified he was a company man at that time said he had not signed
and asked Landrum Do you think it would do any good' Landrum replied It
must do some good There s twenty nine names on it Why don t you get on
it? Gwin testified he told Landrum he had been waiting for someone to bring the
petition to him Either that or the following evening Jones brought the petition to
Gwm s home stating that Jun [Landrum) sent me over here for you to sign this
Gwm told Jones that he did not particularly wish to sign but did so
Larry McCulloch testified that about July 7 1965 while at work Langford asked
him referring to the petition whether McCulloch had jumped on the band wagon
yet that the petition had 55 names on it and if McCulloch would sign `we 11 prob
ably have sixty Langford also told McCulloch that well have to get it [the pets
tion] resigned because it was not dated In answer to Langfords specific inquiry
whether McCulloch would sign McCulloch replied Sure however the petition
was not thereafter presented to him and he did not sign
3 The wage increases
As found above the Respondent did not make any counterproposal respecting
wages at the June 25 and 26 negotiating sessions At these sessions the Union repeat
edly requested that the Respondent state its position on wages particularly after the
Union had stated its acceptance of the Respondents November 1964 proposals on
noneconomic issues as modified in negotiations and its willingness to execute a con
tract on the basis of the terms as then tentatively agreed to provided the parties
reached an accord on arbitration checkoff and wages However the Respondent
did not make a wage proposal at that time as Rhoades testified he deemed it neces
sary at this point to advise his superiors of the status of negotiations
According to Rhoades the Respondent had last granted a general wage increase
in about June 1963 in accordance with its policy of normally making a wage survey
every year on about the July anniversary date of the opening of the plant As found
in the prior case (153 NLRB 495) the Respondent after the Union was certified
suspended the operation of its wage progression plant pursuant to which merit
increases had theretofore been given contending that it would be unlawful for it
unilaterally to grant such increases This action suspending merit increases was
found violative of Section 8(a)(1) in the Boards decision issued June 25 1965
Thus as of the tune the Respondent withdrew recognition from the Union on
July 6 1965 no general increase had been granted since June 1963 and merit
increases had been suspended since the Unions certification on July 2 1964
On July 8 2 days after withdrawing recognition from the Union Plant Manager
Rhoades in separate notices to employees announced a general wage increase and
also the resumption of merit increases retroactive to June 1 1964 The announce
merit of the general increases which amounted to about 12 cents per hour was as
follows
I am happy to report that the home office has approved a general increase
for all hourly employees The amount of the increase which each will receive
will be explained to you by your supervisor
The increase will be effective with the payroll period beginning July 12 1965
The notice relating to merit increases read as follows
We are pleased to announce that the personnel and payroll offices are in the
process of calculating merit increases for all affected employees since June 1
1964 These increases will be reflected in the check covering the pay period
beginning July 12 The amounts which have accrued since June 1, 1964, will
be issued in separate checks as soon as the payroll department can complete
their calculations
The Company has always taken the position that once the question was
resolved concerning the legal status of these merit increases it would act and
grant them once it was free to do so We are now able to do this 13
13 The last paragraph is obviously a reference to the Respondent a position in the Board
case referred to above finding that the suspension of merit increases was in the circum
stances violative of Section 8(a) (1) of the Act
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 Concluding findings
Although the complaint alleges that the Respondent violated Section 8(a)(5)
on various dates prior to June 25 1965 as well as thereafter the evidence is too
insubstantial to warrant finding any unlawful refusal to bargain in the events that
occurred before June 25 On this aspect of the case therefore inquiry focuses upon
the Respondent s conduct during the negotiation sessions on June 25 and 26 and the
events which followed thereafter culminating in the withdrawal of recognition on
July 6 and on the announcement of wage increases on July 8
By noon of June 26 the Union had receded from its demands which had caused
the apparent deadlock in negotiations the preceding January It had accepted the
Respondents November counterproposal as therefore modified, thus eliminating the
hard core issues of work scheduling and overtime In other areas the parties were
in basic agreement Aside from wages the only open items were arbitration and
checkoff and the term of the agreement These items had not presented any par
ticular difficulty Instead of responding to the Union s request for a statement of
position on Wages the Respondents representatives recessed in order to report to
higher management and when that effort was unsuccessful the Respondent a repro
sentatives adjourned the meeting over the Union s protest and without arranging
for the resumption of negotiations
In view of the fact that Rhoades as he testified had been given full authority
`way back in September to conclude a contract his explanation for not discussing
wages or making any offer in that regard on June 26-that he felt it proper to my
management before going further to bring them up to date on the progress of
negotiations -impresses me as being more consistent with a purpose to stall nego
tiations than with a desire to bring them to a mutually satisfactory conclusion From
all the circumstances I infer that on June 26 the Respondent refused to make any
statement on wages because it had already decided to break off bargaining with the
Union and to withdraw recognition from the Union That the Respondent did not
in fact accord the Union recognition as the exclusive representative on June 26 to
which it was entitled under the well-established rule that the majority status of a
union certified by the Board may not be questioned for the period of 1 year follow
mg certification absent unusual circumstances not present here ,34 is apparent from
the Respondents letter of July 6 formally dec)Aamg to recognize the Union In that
letter Rhoades stated that the Respondent had felt for the past months that the
Union had not represented a majority and that the Unions actions (not specified)
at the last negotiations sessions revealed that your organization no longer repre
sented our employees Significantly Rhoades did not refer to the decertification
petition he had received on July 3 as the basis for withdrawing recognition which
would have been the logical course if a determination to question the Union s
majority status had not been made and acted upon prior lo the receipt of the peti
tion In short I view Rhoades July 6 letter not as stating a new position occasioned
by the receipt of the decertification petition on July 3 (2 days after the expiration
of the certification year ) but as formalizing and confirming the state of mind which
prompted the Respondent on June 26 within the certification year to refuse to
make a counterproposal on wages and to break off negotiations
I conclude and find that the Respondent terminated negotiations on June 26
1965 in derogation of the Union s status as the certified and exclusive representa
tive of employees in an appropriate unit and that since this action was taken prior
to the expiration of the Union s certification year the Respondent cannot avail itself
of the asserted doubt that the Union on or before June 26 had lost its majority
status, even though such doubt may have beep raised in good faith 15 1 find there
fore that the Reespopdept unlawfully refused to bargain in violation of Section
8(a)(5) and, ( t) of the Act Consistent with the foregoing findings, I also find that
the Respondent, by formally withdrawing recognition from the Union on July 6
14 Ray Brooks v N L R B 348 U S 96 Celanese Corporation of America 95 NLRB 665
ss See Celanese Corporation of America 95 NLRB 665 at 672 during the certifica
tion year an employer cannot absent unusual circumstances lawfully predicate a refusal
to bargain upon a doubt as to the union s majority even though that doubt is raised
in good faith
CERTAIN-TEED PRODUCTS CORP 101
and by announcing a general wage Increase on July 8 engaged in further conduct
violative of its duty to bargain in good faith with the Umon is
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, C, 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 corn
merce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. To remedy the Respond
ent s unlawful refusal to fulfill its statutory bargaining obligation, I recommend
that it bargain on request with the Unon, as the exclusive representative of 14
employees in the unit found appropriate herein and if an understanding is reached
embody such understanding in a signed agreement I also recommend that the
Respondent post at its plant the attached notice marked Appendix "
Upon the basis of the foregoing findings of fact and upon the entire record
in the case I make the following
1 The Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act
CONCLUSIONS OF LAW
2 The Union is a labor organization within the meaning of Section 2(5) of the Act
3 All production and maintenance employees , including plant clerical employees
and shipping and receiving employees at the Respondent s Hillsboro Texas, plant,
but excluding office clerical employees , machine tenders inspectors, storeroom
men laboratory technicians technical and professional employees guards, watch-
men and supervisors as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the ,Act.
4 At all times since July 2 1964 the Union has been the exclusive bargaining
representative of the employees in the aforesaid appropriate unit within the mean
ing of Section 9(a) of the Act
5 By refusing on and after June 26 1965, to recognize and bargain collectivity
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit the Respondent has engaged in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act
6 The aforesaid unfair labor practices are unfair labor practices affecting coin
merce , within the meaning of Section 2 (6) and (7) of the Act
7 In other respects alleged in the complaint the Respondent has not engaged
in unfair labor practices
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case it is recommended that Certain Teed Products
Corporation, Hillsboro Texas its officers, agents, successors and assigns, shall
1 Cease and desist from
(a) Refusing to recognize and bargain collectively with United Stone and
Allied Products Workers of America AFL-CIO-CLC as the exclusive represents
Live of all production and maintenance employees including plant clerical employ
ees and shipping and receiving employees employed by the Respondent at its
u In his brief counsel for the General Counsel contends that the certification year
should date from August 12 the date upon which the Board rejected the Respondents
request to review the Regional Director a action of July 2 dismissing the objections of the
Respondent and certifying the Union As I understand the law however the certification
year dates from the certification and is not extended by a period equal to the time claps
Ing between the date of certification and the date a request for review is denied Section
fi(b) of the Act provides that a review by the Board of any action of a Regional Director
pursuant to the delegation of powers under Section 9 shall not unless specifically
ordered by the Board operate as a stay of any action taken by the regional director
This provision would appear to indicate that the certification was operative when issued
and its effectiveness not affected or stayed by a request for review unless the Board ordered
otherwise Accordingly I have regarded the certification year as dating from July 2 1964
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hillsboro Texas plant but excluding office clerical employees machine tenders
inspectors storeroom men laboratory technicians technical and professional
employees guards watchmen and supervisors as defined in the Act concerning
rates of pay wages hours of employment and other terms and conditions of
employment
(b) 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 organs
zations to join or assist the above named Union or any other labor organization
to bargain collectively through representatives of their own choosing and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any and all such activities
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act
(a) Upon request bargain collectively with the above named Union as the
exclusive representative of all the employees in the unit described above con
cerning rates of pay wages hours of employment and other conditions of employ-
ment and if an understanding is reached embody such understanding in a signed
agreement
(b) Post at its plant in Millsboro Texas copies of the attached notice marked
Appendix 17 Copies of said notice to be furnished by the Regional Director for
Region 16 after being duly signed by a representative of the Respondent shall
be posted by the Respondent immediately upon receipt thereof and maintained
for a period of 60 consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted Reasonable stejis shall
be taken by the Respondent to insure that said notices are not altered defaced
or covered by any other material
(c) Notify the Regional Director for Region 16 in writing within 20 days
from the date of receipt of this Decision and Recommended Order what steps
the Respondent has taken to comply herewith 18
17 In the event that this Recommended Order is adopted by the Board the words a
Decision and Order shall be substituted for the words the Recommended Order of a
Trial Examiner in the notice In the further event that the Board s Order is enforced
b 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
>e In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read Notify the Regional Director for Region 16 in writing within
10 days from the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act as amended we hereby notify our employees that
WE WILL NOT refuse to bargain collectively upon request with United Stone
and Allied Workers of America AFL-CIO-CLC as the exclusive representa
tive of all employees in the bargaining unit described below of in any like
manner 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 to bargain collectively
through representatives of their own choosing and to engage in other con
certed activities for the purpose of collective bargaining or other mutual aid
or protection or to refrain from any and all such activities
WE WILL bargain collectively upon request with the above named Union
as the exclusive representative of all our employees in the bargaining unit
described below with respect to rates of pay wages hours of employment
and other terms and conditions of employment and if an understanding is
reached embody such understanding in a signed agreement The bargaining
unit is
All production and maintenance employees including plant clerical employ-
ees and shipping and receiving employees at our Hillsboro Texas plant
ROBERTSHAW CONTROLS COMPANY 103
but excluding office clerical employees , machine tenders , inspectors , store-
room men , laboratory technicians , technical and professional . employees,
guards , watchmen , and supervisors as defined in the Act.
CERTAIN-TEED PRODUCTS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76101, Tele-
phone 335-4211 , Extension 2145.
Robertshaw Controls Company, Acro Division and International
Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America , UAW-AFL-CIO
Robertshaw Controls Company , Acro Division and International
Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America, UAW-AFL-CIO, Petitioner. Cases
9-CA-3606 and 9-AC-1. October 19, 1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examin-
er's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal thereof. Thereafter, the General Counsel and
the Charging Party filed exceptions to the Trial Examiner's Decision,
and briefs in support of their exceptions. The Respondent filed cross-
exceptions with a supporting brief. The Charging Party filed a reply
brief to the Respondent's cross-exceptions.
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 these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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, cross-exceptions and briefs, and
161 NLRB No. 2.