Hackney Iron & Steel Co.

National Labor Relations Board - Board Decisions

Sep 28, 1967

167 N.L.R.B. 613 (N.L.R.B. 1967)

HACKNEY IRON & STEEL CO. 613
Hackney Iron & Steel Co. and International Chemi-
cal Workers , and its Local 773, AFL-CIO. Cases
23-CA-2505 and 23-CA-2554
September 28, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 23, 1967, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair
labor practices alleged in the complaint. There-
after, the General Counsel and Respondent filed
exceptions to the Decision and supporting briefs.
The Respondent also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these case to a three-
member panel.
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
briefs, and the entire record' in these cases, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Hackney Iron & Steel
Co., Navasota, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as
herein modified:
1. Delete the following language from paragraph
1(a) and the first indented paragraph of the attached
Appendix:
... by failing or refusing to recognize or adhere
to the terms and provisions of the collective-
bargaining agreement executed between said
Union and Tru-Weld Co., . . . under the terms
of said agreement,. . .
2. Delete the following language from paragraph
2(a) and the third indented paragraph of the at-
tached Appendix:
... as covered by the terms and provisions of
the agreement made between said Union and
Tru-Weld Co., if that agreement is still in effect
and if it has expired, upon request, bargain with
said Union as representative aforesaid for the
purposes and on the subjects aforesaid ....
3. Delete from paragraph 2(d) that part which
reads "to be furnished" and substitute "on forms
provided."
MEMBER BROWN, concurring and dissenting, in
part:
I agree with my colleagues that Respondent vio-
lated Section 8(a)(1) and (5) of the Act. However,
contrary to them, I would also find that Respondent
denied Saturday overtime work to employees Jesse
Perez and W. C. Bradley in violation of Section
8(a)(1) and (3) of the Act.
Briefly, the record shows that the employees in-
volved here are union officials- President Perez
and Shop Steward Bradley. Both took part on be-
half of the Union in negotiating the 1965 collective-
bargaining agreement with respondent's predeces-
sor, Tru-Weld Company. During these negotia-
tions, Tru-Weld was represented by Frank Turner
who is presently Respondent's plant manager. At
the time of Respondent's takeover in late August
1966, Respondent individually interviewed all of
the predecessor's employees as applicants for em-
ployment. During their interviews, Perez and
Bradley inquired about the Union's status and were
told by Respondent that there would be no labor
contract. During the week of August 29, and on
September 6, Perez and Bradley conferred with
Respondent about the labor contract and Respond-
ent reasserted that it had no labor contract. On
September 9, Respondent refused to talk to Perez
and Bradley about the cessation of union dues
checkoff. On September 13, Respondent refused to
accept a formal grievance concerning checkoff that
was presented by Perez and Bradley. On Sep-
tember 19, the Union filed the 8(a)(5) charge.
On Friday, September 23, Perez inquired of Su-
pervisor Burzynski whether anyone was working
the next day, Saturday, and the supervisor replied,
"Yes." Perez then asked whether he and employee
Smith would work Saturday, and Burzynski said,
"No." Perez asked why and Burzynski said he had
"changed his mind." Perez complained to Burzyn-
ski that whenever he changed his mind "I am the
one gets `goofed up."' Burzynski then said, "From
what I hear, since you guys dislike the Company
' The Trial Examiner inadvertently made reference to testimony of ment since such a determination does not come within the scope of the
David Williams who did not testify complaint nor does the record establish whether the agreement is
2 We find it unnecessary to pass upon the Trial Examiner's finding that presently in effect
Respondent was bound by its predecessor 's collective-bargaining agree-
167 NLRB No. 84
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and some of the people around here as much as you
say you do, 1. would not think you would want to
come in on Saturday and work at all so I will let you
work 5 hours less a week." Perez asked, "You still
wonder why we have to organize to talk to you
guys?" Burzynski replied, "That is the way it is."
Perez then sought out Bradley, the union steward,
and both approached Burzynski who admitted he
made the above statements. Both employees ac-
cused Burzynski of refusing to let Perez and Smith
work because of their union activities. Burzynski
denied this, asserted he based his decision on their
work performance, that no one was going to tell him
how to run his job, and that "the subject was
closed." Bradley was then denied Saturday work
for the same asserted reason.
In dismissing the 8(a)(3) allegations, the Trial Ex-
aminer accepted Respondent's "work per-
formance" argument and claimed that Burzynski's
statement had reference to a reported unseemly re-
mark indicating antagonism toward Plant Manager
Turner made earlier that day by employee Smith to
a female office employee in the presence of Perez.
In view of Perez' and Bradley's activities on behalf
of the Union, I would find that the only reasonable
inference which can be drawn from Burzynski's
comment is that it was Perez' and Bradley's union
activities, and not the alleged incident of an em-
ployee's remark which caused Burzynski to deny
Perez3 and Bradley Saturday overtime work on
September 24 and thereafter.
In addition, the record shows that Perez has
received no Saturday overtime work since the Sep-
tember 23 incident. Instead, Respondent has given
such work that consists mainly of racking plates and
disposing of scrap, Perez' main work function dur-
ing the workweek, and the work of assisting Turner
in the taking of inventory, to employee Sam Wil-
liams, the highest paid cutter, and to the present
night-shift leadman David Williams. Further, both
Sam and David Williams have been given Saturday
work after working the night shift which is a depar-
ture from the normal practice.
In finding no discrimination against Bradley, the
Trial Examiner was particularly impressed by the
fact that machinist Bohack who received most of
the Saturday overtime work was the vice president
of the Union. Thus, the Trial Examiner referred to
this as "another factor weighing against discrimina-
tion," and later stated this "weakens the inference
of discrimination." However, the Trial Examiner's
reliance is misplaced since the record affirmatively
establishes by Burzynski's own testimony that he
did not know of Bohack's position in the Union.
Furthermore, in contrast to Bradley's working on
one Saturday following September 23, the other
machinists have received more Saturday work
although superior ability is offered only with
respect to Bohack. Moreover, the inference drawn
by the Trial Examiner with respect to the Sep-
tember 23 incident is completely refuted by the
evidence showing that Bradley was not a party to
the alleged conversation which was supposed to
have motivated Burzynski's actions against Perez.
Accordingly, I would find that Respondent violated
Section 8(a)(1) and (3) in denying Saturday over-
time work to Perez and Bradley, and would issue an
appropriate order remedying the Respondent's dis-
crimination.
' Without the benefit of any testimony from employee Smith or the
female employee, the Trial Examiner has apparently discredited Perez'
testimony that he was not present at the time of employee Smith's remark
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FRET, Trial Examiner: The issues in this
case are: (1) whether Respondent, Hackney Iron & Steel
Co., as the purchaser of the physical assets of Tru-Weld
Company (herein called Tru-Weld) located in its
Navasota, Texas, plant, became obligated to recognize
and bargain with the above-named Union as the certified
bargaining agent of employees in an appropriate unit in
said plant, and whether it failed in various ways to bargain
with the Union as such agent, in violation of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., and (2) whether it
denied Saturday overtime work to two employees
because of their union activity, in violation of Section
8(a)(3) of said Act. The issues arise on complaints issued
November 23, 1966, and January 17, 1967, by the
General Counsel of the Board through the Board's Re-
gional Director for Region 23,' and answers of Respond-
ent admitting jurisdiction but denying the commission of
any unfair labor practices. A hearing on the issues was
held before me at Anderson, Texas, on February 7 and 8,
1967, with all parties except the Union participating
through counsel. After the hearing closed, the parties sub-
mitted a stipulation of fact regarding certain company
records, and that stipulation is hereby admitted in the
record as Respondent's Exhibit 5. All parties waived oral
argument at the close of testimony, but General Counsel
and Respondent have submitted written briefs which I
have carefully considered in preparation of this Decision.
Upon the entire record in the case, and from my obser-
vation of all witnesses on the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND STATUS OF THE
UNION
Respondent is a Texas corporation with its principal of-
fice and place of business in Dallas, Texas, where it is en-
gaged in the manufacture of tank heads. It has since Au-
gust 1966 conducted part of its business in a plant in
Navasota, Texas, formerly owned by Tru-Weld. Since
August 29, 1966, Respondent has in course of its busi-
I The complaint in Case 23-CA-2505 issued after Board investigation
of charges filed by the Union on September 19 and November 7, 1966,
and the complaint in Case 23-CA-1554 issued January 17, 1967, after fil-
ing of a charge by the Union on November 8, 1966 The cases were con-
solidated by order of the Regional Director dated January 17, 1967
HACKNEY IRON & STEEL CO.
ness had a direct outflow of products valued in excess of
$50,000 from the Navasota facility to points outside Tex-
as. I find that at all material times mentioned herein,
Respondent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Events
Prior to August 28, 1966, Tru-Weld manufactured well
caps and tank heads or caps in the Navasota plant owned
by an affiliate of Tru-Weld. Pursuant to a stipulation for
consent election signed by Tru-Weld and the Union in
Case 23-RC-2413, a Board-conducted election was held
in 1965 at that plant in a unit consisting of all production
and maintenance employees of Tru-Weld employed
therein , excluding office clerical employees, guards,
watchmen, and supervisors as defined in the Act. The
Union won the election, and the Regional Director for
Region 23 on May 18, 1965, duly certified the Union as
the statutory bargaining agent of all employees in said
unit pursuant to Section 9(a) of the Act. Thereafter Tru-
Weld and the Union negotiated and executed a collective-
bargaining agreement which was in effect on August 29,
1966, the date that Trinity Industries, Inc. (herein called
Trinity), which owns Respondent, purchased certain as-
sets and equipment used by Tru-Weld at Navasota, and
leased that plant from its owner, Four-S Corporation.
The details and effect of that transaction, and the han-
dling of employees in the unit aforesaid, will be discussed
below. On September 9, 1966, the Union sent a telegram
to Frank L. Turner, Jr., as manager for Tru-Weld and/or
Respondent, at Navasota, claiming that the current labor
agreement between the "Union and your company is in
full force and effect," and requested a reply as to "Com-
pany's position." Turner replied by telegram of the same
date that the Union's telegram had been referred to "our
attorneys." Turner signed the telegram as "plant
manager , True-Weld Pressed Products, Div. of Hackney
Iron & Steel Co." On September 13, counsel for Re-
spondent wrote the Union in answer to its telegram, stat-
ing that, since Respondent was not the successor of Tru-
Weld, Respondent did not recognize any obligation to
comply with "whatever agreement may have existed
between Tru-Weld Company and the Chemical Workers
Union."
B. The Succession of Respondent as Employer at
Navasota
Prior to the purchase by Respondent, Tru-Weld had
been making steel pressure well caps and pressure heads
or caps for pressure tanks at Navasota with a work force
of about 36. Extended negotiations between Trinity and
the principal owners of Tru-Weld and Four-S Corp. (be-
ing members of the Sollberger family) early in 1966 cul-
minated in a purchase and sale agreement and agreement
to lease executed as of August 26, 1966, between Trinity
as buyer, and Tru-Weld, Four-S Corp., and A. G. Soll-
berger, as sellers, whereby the sellers transferred to Trini-
ty all of the Tru-Weld property, equipment, and invento-
615
ries in the Navasota plant, including equipment, machin-
ery, and tools owned by Sollberger personally and for-
merly leased to Tru-Weld, and Four-S Corp. leased the
plant to Trinity for 15 years, with an option to buy. The
inventories involved included work in process by Tru-
Weld at time of transfer. The sale excluded the business
of the various sellers,2 their trade records, cash, accounts
receivable, customer lists, insurance rights, corporate and
accounting records, and liabilities, the parties agreeing
specifically as to the last item that Trinity was not
deemed to be a successor to the sellers, as it was buying
only certain of their assets, and that Trinity did not as-
sume any liability of the sellers under any contracts by
which any of them might be bound. On or before August
29, 1966, Trinity assigned all its rights under these agree-
ments to Respondent.
Tru-Weld performed its last work in the plant on
Friday, August 26, 1966, the purchase and sale agree-
ment was formally consummated with exchange of docu-
ments and consideration on Monday afternoon, August
29, and Respondent took over the plant and commenced
operations in it Tuesday, August 30, after which it
finished some work in process and continued to make
there substantially the same products as Tru-Weld. How-
ever, the employees were officially notified by Tru-Weld
on August 26, that Respondent's representatives would
interview applicants for employment at the plant on
Saturday and Monday, the 27th and 29th. On Saturday,
while Tru-Weld was taking final inventory prior to the
transfer, Ralph Banks, production vice president for both
Trinity and Respondent, began interviewing supervisors
and employees individually. He explained to all that
Respondent would hire them as new employees, each
was thereafter required to make application for employ-
ment on a new form supplied by Respondent. In explain-
ing their benefits and working conditions, he said that
their past seniority did not carry over into their new em-
ployment, except that Respondent would honor their past
service for vacation purposes. They were all hired at new
hourly rates which were 20 cents an hour more than those
paid by Tru-Weld. When some, like W. C. Bradley, the
shop steward under the existing union contract, asked
questions about their benefits and status under the con-
tract, Banks explained that Respondent's other plants
were not unionized, and its policy was to deal directly
with employees, that the union contract was not included
in the purchase of the Tru-Weld assets, so that Respond-
ent would not recognize that contract in any way, and
that Respondent could "show us a better way of life." In
his long interview with Jesse G. Perez, an employee in
the cutting department who was president of the Union,
Banks outlined the business and number of plants of
Trinity and Respondent, said they were all nonunion, and
that while one plant had been unionized, the Union was
voted out a few weeks after Trinity bought it, and those
employees thus showed their "loyalty" to the Company,
and Banks expected the same thing of the Navasota em-
ployees. In expressing the desire to work directly with
employees without a "middle- man," Banks said he would
interview employees and check their production records
every 3 months, and raises would be given to those who
showed they were good employees by putting out more
production.
In line with Banks' announcements Respondent has
2 Tru-Weld continued to operate its business elsewhere in Texas
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not since the transfer checked off dues for the Union or
recognized or followed any other terms of the union con-
tract (except insofar as it recognized past service in
honoring vacation benefits ). Thus, when Bradley and
Perez tried as union officials to confer with Banks in the
week of August 29 about the contract , Banks repeated
that as far as he was concerned "we had no union con-
tract ," and that he would talk to either man individually
about his own personal problems, but "not about union
business ." Banks took the same position in refusing on
September 6 to talk to them as union officials about other
union matters , repeating that the present workers were
"all new employees , there is no union ." When these of-
ficers tried to talk to Turner on September 9 about the
cessation of union dues checkoff, Turner said he would
not talk about union business with any union officials, but
could talk only to individual workers about their
grievances ; and when both officials tried on September
13 to present a formal grievance on this subject on a
union form to Turner , the latter would not receive or
discuss it, and told Perez he would not talk to him about
"union business "; however, he did read the paper, while
Perez held it up in front of him , and also asked who had
signed it , to which Perez replied that he and Bradley had
done so. Turner took the same position when both of-
ficers tried to present other formal grievances to him
later.
In the Saturday and Monday interviews , Respondent
hired Plant Manager Frank L. Turner, Jr., Production
Foreman Raymond J. Burzynski , and Foreman James
Herman , continuing them in substantially the same super-
visory positions in the plant , though with some change of
title, and took on all the former production employees in
substantially the same type of work and job classifica-
tions as they had held under Tru-Weld.
Since the transfer Respondent has continued to make
and market steel tank or cylinder caps and well heads at
Navasota and its Enid plant under the trade name "Tru-
Weld," and has arranged to expand both plant and
machinery facilities at Navasota in order to increase
production of those products and begin production of new
but similar items.3 Respondent admits that Respondent
and Trinity are a common business enterprise, with com-
mon principal office, officers, directors , corporate and
financial records, with all plants of both corporations
operating under a common personnel and labor policy,
and that the Navasota plant has been integrated into that
common enterprise in all material respects.
The basic issue raised by the pleadings is whether
Respondent is a successor employer of the employees at
the Navasota plant to an extent which requires it to
recognize the Union as statutory bargaining agent under
its 1965 certification , and to operate under its contract
with Tru-Weld. It is well settled that a mere change in
ownership of an enterprise is not so unusual a circum-
stance as to affect an existing certification of a labor or-
ganization as bargaining agent of its employees , and that
where the employing enterprise remains essentially or
substantially the same after the transfer, the obligation to
honor the certification and bargain with the certified
union devolves on the successor in title . N.L.R.B. v.
Alamo White Truck Service, Inc., 273 F.2d 238, 239, 240
(C.A. 5), N.L.R.B. v . Auto Ventshade , Inc., 276 F.2d
303, 304 (C.A. 5). Here, the facts that Respondent took
over the entire production and maintenance force of Tru-
Weld, continued the same three plant supervisors in sub-
stantially their same positions and duties within the plant,
and has continued to make substantially the same types
of products there, by the same method of operation, using
the Tru-Weld label, and in the takeover continued work-
in-process of Tru-Weld to complete orders previously
placed by Tru-Weld, are substantial indicia of con-
tinuance of the same employing enterprise. Martin
Marietta Corporation, United Brick Division, 159 NLRB
905; Valleydale Packers, Inc., of Bristol, 162 NLRB
1486. Respondent argues, however, that the Navasota
plant has lost its identity as a continuing employee enter-
prise because (1) Turner, the manager who under Tru-
Weld had full authority to make all personnel and labor
decisions for that plant, no longer has such authority,
which is exercised by higher officials of the Trinity-
Respondent enterprise in Dallas, Texas; (2) the operation
at Navasota has changed from manufacture of com-
ponents to that of finished parts; (3) Navasota is no
longer a small, almost self-contained, local business but
is, in effect, "effaced" by merger into a large multistate
business with 15 plants; and (4) the Navasota plant
procures raw materials from different sources, and serves
different customers Items (1), (3), and (4) are circum-
stances arising from a mere change of ownership which
tend to support Respondent's contention, within the rul-
ing of the court of appeals in N.L.R.B. v. Alamo White
Truck Service, supra, but their effect is diminished
greatly by the fact, contra the claim in item (2), that from
the date of transfer at least to the hearing herein, Respond-
ent continued the operation of the plant substantially as
a "going concern," by finishing out incompleted Tru-
Weld orders for components of pressure tanks and ves-
sels for storing and handling liquids and gases, continuing
manufacture of the same basic products as before (except
for about 10 percent which was transferred to the Enid
plant), with the same work force and plant supervision,
using the same work methods, and continuing use of the
Tru-Weld name and label on products made at Navasota
(as well as at Enid). While it is true, as Respondent ar-
gues, that the Navasota plant is now part of a large busi-
ness complex which makes and sells finished products,
the salient fact is that this plant still operates as a maker
and supplier of components, as before, which'go into
fabrication of larger finished products; Respondent sup-
plies therefrom the same type components to other por-
tions of the Trinity business complex that Tru-Weld had
supplied to its independent customers. Hence, the nature,
purpose, and functions of the Navasota operation as an
employing enterprise have not been changed in any es-
sential aspect by its merger into a larger enterprise whose
end product is a line of larger, finished products. In these
respects, the case thus closely parallels the situation in
Valleydale Packers, Inc., of Bristol, supra, where the
Board held that the buyer of the operation was a succes-
sor employer. The circumstances that Respondent has
gradually enlarged the Navasota operation by moving
into production of other but similar products, and even
making the old products by new methods, and that
Navasota has become a cog in a larger business endeavor
which markets completed products, which is a normal
consequence of technological changes and requirements
3 About 10 percent of the Navasota production, consisting mainly of
specialty items made of alloy steels, has been moved to the Enid plant
HACKNEY IRON & STEEL CO. 617
of competition , cannot serve to alter the basic picture of
a substantial continuance of the old employing enterprise
from the outset , insofar as the basic employer-employee
relationship in that plant is concerned . In these aspects,
I consider the Alamo White Truck Service case, and
others cited by Respondent which involved drastic
changes in nature of product , business, composition, and
size of work force, or lack of continuity of operation, as
inapposite on the facts.4
On all the pertinent facts and circumstances, I con-
clude and find that Respondent took over the Navasota
plant as a "successor employer " which substantially con-
tinued as a "going concern " the employing enterprise
which Tru-Weld had formerly conducted , and that as
such it is bound by the Union ' s existing certification as
representative of Respondent's employees who at the
time of transfer and have been for an indefinite period
since that date the same in numbers and duties as those
employed by Tru-Weld before the transfer . In these cir-
cumstances , the existing agreement , as an embodiment of
the "law of the shop ," remained as the basic charter of
labor relations at the plant after the change of ownership,
which as a matter of national labor policy must survive
any general or specific exclusion of its terms and obliga-
tions from the transfer of assets , so that Respondent is
bound to recognize and carry on all its terms, so long as
the Union remains the statutory bargaining agent of the
employees . See United Steelworkers of America v.
Reliance Universal Inc. of Ohio, 335 F. 2d 891 , 894, 895
(C.A. 3) and The Wackenhut Corporation v.
International Union, United Plant Guard Workers of
America and its Local 151, 332 F.2d 954, 958 (C A. 9);
both citing John Wiley & Sons, Inc. v. David Livingston,
376 U.S. 543, 549-551 (C.A. 2).5 It follows that the
Union 's assertion of September 9, 1966 , to Respondent
that it considered its contract in full force and effect and
requesting a reply was a sufficient request for recognition
of the Union as bargaining agent , especially where the
record shows that Respondent , through Banks , already
knew of the existence of the contract , and Banks had
clearly advised most former employees of Tru-Weld on
August 27 and 29 that Respondent would not recognize
or operate under agreement .6 I therefore find that
Respondent unlawfully refused to bargain with the Union
as the statutory bargaining agent for employees in the ap-
propriate unit found in the certification and recognized in
the contract , in violation of Section 8(a)(5) and (1) of the
Act, by the following conduct:
1. Banks' announcement to former Tru-Weld em-
ployees, when they applied for work on August 27 and
29, 1966, that Respondent would not recognize the con-
tract, but would talk to employees only individually about
their problems , and said employees would be hired by
Respondent as new employees without continuance of
their seniority rights acquired during their prior employ-
ment with Tru-Weld.
2. Respondent's unilateral actions in employing
former Tru-Weld employees on said dates as new em-
ployees, without benefit of prior seniority, and at new
rates of pay. Martin Marietta Corp., 159 NLRB 905.
3. The refusals of Plant Manager Turner on Sep-
tember 9 and 13 to accept or discuss with union officials
formal grievances presented by them under the terms of
the union contract. Orkin Exterminating Company of
Florida, Inc., 152 NLRB 83, 117.
4. Respondent's letter of September 13 to the Union,
refusing to recognize its contract with Tru-Weld.
C. The Alleged Refusal of Overtime Work
The remaining issue is whether Union Officials Perez
and Bradley were denied their fair proportionate share of
Saturday overtime work after Respondent took over the
plant, because of their activities for the Union. At the out-
set, it is clear that Respondent, through Turner and Bur-
zynski, knew that both men were union officials who
were constantly trying to process grievances under the
Union's contract with Tru-Weld and thus have Respond-
ent recognize the Union. Since Respondent made it
clear from the outset that it felt it had no legal obligation
to recognize the Union or enforce its contract, and that it
preferred a nonunion condition at the plant, Respondent's
treatment of the two union leaders as regards overtime
work must be scrutinized closely, to see whether Re-
spondent discriminated against them in this respect.
At the time of the transfer, Perez was working on one
shift with cutters John L. Grice, James McConnaghy, and
Charles Smith; Bradley, the union steward, was a
machine operator on the same shift as operators Lewis
Bohack, vice president of the Union, Adam Ubnoski, and
Sylvester Tomkivits. Before the transfer, Tru-Weld had
followed the practice of assigning Saturday overtime
work mostly to press operators and employees in the
processing department, because during the week those
workers usually could not keep up with the volume of
prior operations done by the cutters and machine opera-
tors. Where the work volume required extra cutting work,
Saturday overtime was normally given to cutters who had
been on day shift during that week, rather than requiring
cutters who had worked night shift Friday night to come
in again early Saturday morning Under the rotation
system, however,' the Saturday overtime work was
usually equitably distributed among the cutters of both
shifts. However, this distribution was not completely
mechanical, for workers in various classifications
received it according to the amount and type of overtime
work to be done, the classification of the employees, and
the supervisor's judgment as to the comparative ability of
' In Alamo White Truck Service, Inc , supra, the main circumstance
which apparently influenced the decision of the court was the drastic
change from a large, nationwide organization into a small local business,
whose nature had been changed from that of manufacture and sale of
products, with incidental service functions, to that of a general service or-
ganization, which facts are far different from those at bar.
5 There is no substantial proof that either at time of the transfer or since
any employees who constituted the Union's majority or had been actively
represented by it since execution of the contract have withdrawn their
designation of it as their bargaining agent , so as to indicate that the Union
no longer has majority status Hence, it must be presumed that the majori-
ty status of the Union has continued up to and following the transfer, and
its certification of May 1965 must still be honored N L R B v Auto
Ventshade, Inc, 276 F 2d 303, 307 (C A 5), Quaker Tool & Die, Inc,
162 NLRB 1307
Having found that Respondent continued the employing enterprise as
a "going concern," it follows that the appropriate unit found in the certifi-
cation , as noted above , still continues to be appropriate , and I so find.
8 Even if the Union's telegram of September 9 were legally insufficient
as a bargaining or recognition request , Respondent ' s announcements
aforesaid to the employees clearly demonstrated an intent not to recognize
the Union or its contract and amounted to a waiver of a formal bargaining
request See N L R B v Burton-Dixie Corporation, 210 F.2d 199, 201
(C A 10)
' The cutters were divided into two shifts, with each rotating from day
to night work every 4 weeks.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers to do the extra work. Under this arrangement,
Respondent normally gave Saturday work, not to a full
shift of employees in a particular classification, but only
to as many as were needed depending on the amount of
overtime work to be done, and in such instances the su-
pervisors would choose the best workers in the classifica-
tion required.8
The record shows that prior to the transfer Tru-Weld
had followed this assignment procedure in nondiscrimina-
tory manner, and Respondent did likewise during the first
3 weeks of September 1966, with Bradley working one
out of three Saturdays, and Perez two out of three.
General Counsel makes no claim of discrimination
against either man during these periods.
On Friday, September 23, 1966, Foreman Burzynski
received a report from a female office employee that,
while she was out in the shop that afternoon, cutter
Charles T. Smith had asked her, in the presence of Perez,
where Manager Turner was, and when she replied that
Turner was out of town and would not return until Mon-
day, Smith had said "when Frank Turner comes back,
just flush his head-stick his head in the commode and
flush it," and that this offended her, so she reported it to
Burzynski. The foreman did nothing about the report at
the time. Later that afternoon, Perez asked Burzynski if
anyone would work Saturday, and the latter said yes.
Perez asked if he and Smith would work, and Burzynski
said no Perez asked why and Burzynski said he had
changed his mind. Perez then complained that when he
changed his mind "I am the one gets `goofed up."' Bur-
zynski then said, "From what I hear, since you guys
dislike the company and some of the people around here
as much as you say you do, I would not think you would
want to come in on Saturday and work at all so I will let
you work 5 hours less a week." Perez then asked "you
still wonder why we have to organize to talk to you
`guys?"' to which Burzynski replied, "That is the way it
is." Perez then sought out steward Bradley, and the two
approached Burzynski at another point in the shop, and
Bradley asked Burzynski if he had made the above-
quoted remark. Burzynski admitted he did. The officials
then accused Burzynski of refusing to let Perez and Smith
work because of their union activities, and criticized the
foreman for not negotiating with Bradley and the Union
about it. Burzynski denied the decision was based on
their union activities, and said the real reason why he was
not bringing them in Saturday was because their produc-
tion was not good enough, there were other workers who
could do more work in less time, and that no one was
going to tell him how to run his job, and that "the subject
was closed."
Perez did not work Saturday, September 24, but Bur-
zynski worked cutters Grice, McConnaghy, and Sam
Williams for the usual 5 hours General Counsel con-
tends, on Perez' testimony, that after that date, Perez did
not work a single Saturday up to the time of the hearing,
arguing this indicates rank discrimination. However, ac-
cording to the summary of the timecard records, neither
did Grice, McConnaghy, or Smith, the other cutters on
Perez' shift, work Saturdays, at least up to the end of
1966; the months of October and December, when the
four worked nights, must be ruled out because of the
practice of not giving night-shift men Saturday overtime;
and Perez admits that in November 1966 and January
9 These facts are found from credited testimony of Burzynski, as cor-
roborated in large part by admissions of Bradley and Perez
9 In the past, workers brought in to work overtime on Saturday usually
received 5 hours of work
1967, the whole shift failed to get Saturday work, though
it was on day work. There is no claim that Respondent
was discriminating in the last 3 months or later against the
above three cutters on that shift Perez admits from his
own recollection that all men on his shift received about
the same amount of Saturday work in this period. These
facts and testimony indicate strongly that the failure to
receive Saturday work affected, not Perez alone, but all
the men on his shift, which militates against any finding
that there was discrimination against him individually.
The manner and reason for the choice of workers for
Saturday overtime is brought out affirmatively by
Respondent, however, in answer to the additional argu-
ment of General Counsel, based on Perez' complaint in
testimony, that other workers performed racking and han-
dling of plate and disposal of scrap on Saturdays,
although that was his main work during the week. The
clear and persuasive economic answer appears from
credible testimony of Burzynski, Sam Williams, and
David Williams, as well as admissions of Perez, that: In
line with his consistent policy of using the most efficient
workers, as he told Perez, Burzynski since September has
been calling on Sam Williams, the oldest worker in the
plant and a good cutter, to work Saturdays to handle
plates and scrap, which comprises most of the Saturday
work, and to perform cutting that is needed occasionally.
Williams is proficient at cutting "circles," a particular
form of plate, and knows these products well, hence Bur-
zynski also uses him to assist Turner in taking inventory
of those and other plate items; Williams is also one of the
fastest and most cooperative workers, among the cutters
and noncutters; as against his general and special profi-
ciency, Perez had worked for months as a noncutter,
mostly on racking of plate and disposal of scrap, as an
assistant to the regular cutters, and has done little, if any,
cutting himself, during the past year in the cutting depart-
ment. Thus, comparing the two, it is clear, and I find, that
Burzynski used Sam Williams, the more efficient and ver-
satile worker, as against Perez who was far more limited
in that respect. Sam Williams also gets paid more than
Perez. I also find from Burzynski's credible testimony
that he did not use Charles Smith Saturdays for the same
reason.1° In addition, Burzynski has been working David
Williams, permanent leadman on the night shift, every
other Saturday to help Sam Williams stack plate and
assist Turner in taking inventory, for David Williams
knows all the plate stock well. On the other hand, Perez
has never done inventory work for either Tru-Weld or
Respondent, nor had he ever asked either concern for a
chance to do that type of work. Although David Williams
was on permanent night shift, and Sam Williams often
worked Saturdays when he was on night shift, this is not
a significant departure from the normal rotation practice,
for Perez admits night-shift workers from both cutting
shifts and some doing other work have often been given
Saturday work in the past; he recalls that during I month
under the Tru-Weld regime both cutting department shifts
had worked several Saturdays when a backlog of orders
required overtime work on plates. The Union had raised
no complaints in the past about the general assignment of
overtime work, except that in March 1966, under the
Tru-Weld regime, it filed the same charge with the Board
10 There is no allegation or argument of discrimination against Smith in
this respect, although the Union in its charge had claimed the same dis-
crimination against him as against Perez and Bradley
HACKNEY IRON & STEEL CO. 619
that it now makes, which the Regional Director dismissed
for lack of merit in June 1966. Burzynski also has given
one J. Stevens, a machinist and cutter with longer service
than Perez, Saturday work on several occasions. Aside
from the factors of service, versatility, and type of job, the
record shows that Burzynski also took into consideration
the general attitude and spirit of cooperation of the work-
ers, and in this respect Perez fell short of the qualifica-
tions of those chosen for Saturday work, in that Perez had
a record of more absenteeism than the others; he admits
he had been reprimanded about his work "a lot of times"
while working in the machine department under Tru-
Weld, and that he has recently had much trouble in keep-
ing his plates racked properly in the cutting department
(which he tried to blame on the ineptitude of a junior
worker); it is also clear from Perez' manner of testimony
about Turner that he does not like that official personally,
and he admits there has been "friction" between them in
the past, although he says he has had no trouble getting
along with Burzynski (except when they had some "hot"
arguments during discussion of union problems brought
up by Perez). In contrast, Burzynski apparently had no
trouble with David Williams (another union member until
he resigned upon becoming night leadman a few months
before the hearing), who was given much Saturday
work because of his qualifications noted above. I am
satisfied that Perez had been less than a satisfactory em-
ployee in the past, in his work performance and general
attitude toward and cooperation with management,[[ and
that when Burzynski received a report on September 23
of a disparaging and vulgar remark made by another em-
ployee about Turner to a female employee, in the
presence of Perez and with his apparent approval (which
report Burzynski at the time had no reason to disbelieve),
I am satisfied Burzynski treated this incident as another
instance of Perez' general poor attitude toward manage-
ment and Turner in particular, that it played a part in his
decision not to work either Perez or Smith on September
24 and thereafter, and that it directly motivated Burzyn-
ski's remark to Perez about their apparent dislike of
management when Perez asked about Saturday work.
Against these facts and in light of Perez' mediocre per-
formance as a worker, I consider it no more than specula-
tion to say that Burzynski's oblique reference to Smith's
remarks could only refer to Perez' persistent attempts
(which are protected activity under the Act) since the
transfer to get management to deal with the Union and
recognize As contract with Tru-Weld, particularly since
Burzynski made no reference at the time to Perez' union
position or activity, but only to the episode which oc-
curred a few hours before, and which was undoubtedly
fresh in his mind . Considering the denial of work on Sep-
tember 24 alone, I am satisfied that Burzynski acted
against both on his belief in the report of that Friday in-
cident apparently involving both, but since his comments
about it were equivocal as noted above, it is more likely
that he was acting on the basis of Smith's reported re-
marks than the prior union activities of Perez. In addition,
his use of the lower paid Grice on the 24th is not cogent
evidence of discrimination because he had given the same
5 hours of overtime to Grice as to Perez on two prior
Saturdays, and 5 hours to McConnaghy on one of those
days, which indicates that he had work for at least two
from the cutting department on the 24th, but chose Mc-
Connaghy over Perez because of the report about the
latter. Against the same cogent facts, it is also speculation
to "imagine," as General Counsel does in his brief, that
Burzynski must have been harboring and acting on a new-
found resentment based on the service of the first charge
in Case 23-CA-2505 on Turner on September 20, and
that Burzynski "logically" focused this "gnawing" resent-
ment at once on Perez and Bradley, the union leaders.
There might be some substance to the theory of General
Counsel if Smith had been called to testify about his re-
marks to the office girl and to deny her report about it,
and to support Perez' story that he was not present when
the remark was made, particularly since Respondent did
not see fit to call the female worker who heard it, nor to
explain its failure to call her, and it appears that Burzyn-
ski made no investigation of the incident by talking to
Smith, the girl, or Perez before he made the quoted re-
marks to Perez and Bradley. However, Smith was named
in the charge in Case 23-CA-2554 as the third dis-
criminatee, but the complaint does not mention him, nor
did General Counsel call him to testify on this crucial in-
cident, which warrants the inference that, though he was
apparently a union member or adherent, he could not
truthfully deny the report of the female worker, or sup-
port Perez' story that he was not present when the vulgar
remark was made. In this situation, I cannot conclude
that Respondent's version of the report to Burzynski is
weakened by its failure to call the female worker to sup-
port her report by testifying to the circumstances of the
Smith remarks The weakness of the case as to Perez is
also shown by his collateral contention (not dignified as
a separate allegation of discrimination in the complaint)
that Turner harbored resentment against him because he
had several times refused to let him work on permanent
night shift so that he could advance his education by tak-
ing 15 hours of daytime schoolwork a week, while allow-
ing other workers to take night shift for their personal
convenience. Perez admits that on two occasions Turner
expressed doubt that he could carry night work while
handling 15 hours of schoolwork during the day each
week, although Turner at one point said he could do
nothing for him unless he "cooperated a little more with
the company," this is an equivocal remark which could
apply as well to his general work and attitude, which was
not quite satisfactory, as to his militant union activity.
Considering all the facts and circumstances, with argu-
ments thereon, pro and con, I find that the issue is a close
one, but overall I must conclude that Respondent has ad-
duced sufficient cogent proof of economic and nondis-
criminatory motive for the failure of Perez to receive sub-
stantial overtime work after September 24, which is
adequate to rebut the prima facie case adduced by
General Counsel, and that on the entire record General
Counsel has not sustained the ultimate burden of proof by
substantial and preponderant proof that Respondent dis-
ii General Counsel argued that Perez must have been a satisfactory
employee because in September his hourly rate was $2 05 an hour, the
second highest paid worker on his shift , Sam Williams is the highest paid
cutter However, lacking other explanation from him or Respondent, it is
inferable that his rate of $2 05 an hour arose in part from his prior employ-
ment in the machine department , where the rates dunng September and
later averaged over $2 an hour, and did not reflect his performance in the
cutting department, where the hourly rates were generally under $2 an
hour Hence, his rate dunng September and after is not clear proof of
satisfactory performance which outweighs his own admissions of poor
work while a machinist and trouble with his noncuttmg duties in the
cutting department
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminated against Perez in assignment of Saturday over-
time work. At the most, the record raises a suspicion of
such discrimination, but suspicion is not proof on which
I can base a finding of violation. Hence, I find a failure of
proof on this allegation and will recommend dismissal of
the consolidated complaint insofar as it relates to Perez.
The situation as to Bradley is somewhat different on
the facts, but the claim of discrimination against him is no
stronger overall than for Perez. At the time of the transfer
Bradley was a machine operator, working on the same
shift with operators Lewis Bohack, Adam Ubnoski, and
Sylvester Tomkivits. General Counsel's claim, based on
his testimony and company records, is that he was given
Saturday overtime in normal fashion prior to the Sep-
tember 23 talk with Burzynski, but after the supervisor's
remarks quoted above, which Bradley interpreted to refer
to his and Perez' recent union activities, Respondent de-
nied him such overtime from Saturday, September 24, for
the remainder of 1966, for discriminatory reasons, except
for 5 hours he worked one Saturday in October, which
contrasts sharply with 58.4 hours received by Bohack,
13.8 hours by Ubnoski, and 27 hours by Tomkivits in the
same period. Considering that Bradley was not present
and had no part in the vulgar remarks by Charles Smith,
to which Burzynski referred in his talk with both union of-
ficials, and the report thereon to Burzynski did not men-
tion Bradley, and Burzynski's remarks did not specifi-
cally identify "you guys" as Perez and Smith, so that one
could reasonably infer from them that he was referring
only to Perez and Bradley, these events present a
stronger prima facie case of discrimination against
Bradley than against Perez. Respondent's defense is the
same as for Perez, that better men were given Saturday
work thereafter. According to Burzynski's credible
testimony , machine operators are called in for Saturday
work almost every other Saturday, if machine work on a
plug, draw ring, or a die is required, and for this purpose
Burzynski normally calls on Bohack, because he is a good
press operator and machinist and handles most of the
diemaking during regular hours ; at times, if the work is
heavy, other machine operators may be called in. The
work records show that in the last 4 months of 1966
Bohack received the most overtime, but on four occa-
sions Tomkivits also worked with him, and on only two
Saturdays, September 17 and November 19, did the
three other operators work together , the earlier occasion
being the one when the entire shift including Bradley
worked 5 hours a piece. Bradley admits that some work-
ers could get more Saturday work than others because
they had more Saturday work to do, and this is consistent
with Burzynski's explanation and the variation in the
number of machinists brought in during the period, hence
this variation supports the inference that the workload on
September 17 was heavy enough to require all to work,
while only on November 19 thereafter was it large
enough to require three to work. Another factor weighing
against discrimination is that Bohack , the good machinist
who got most of the Saturday overtime, has been vice
president of the Union since 1965.12 However, Respond-
ent presents no credible proof as to the experience or su-
perior talents of Ubnoski and Tomkivits which would
show why they got more Saturday overtime than Bradley,
nor does it present anything to discredit Bradley's
testimony that he had left some plug work unfinished on
Friday, September 23 (which he normally could have
finished on Saturday overtime), but found it finished in a
sloppy manner when he came in on Monday.13 Since
Bohack was the only machinist working that Saturday, it
is inferable that he finished the job. Although he may
have been sloppy on this occasion (Burzynski says
nothing about it in his testimony), Respondent's use of a
union official, who was the better worker and also the
highest paid man on the shift,14 weakens the inference of
discrimination . Furthermore, the pay records show that
Bradley was the only machinist given Saturday overtime
work on October 1, a total of 5 hours, though he was paid
at straight-time rates therefor, according to Respondent,
because he had worked only 37 hours straight time during
the week, with only 2 hours' weekday overtime. While
this explanation leaves some question whether he was
properly paid at only straight-time rates for the 5 hours
(neither Bradley nor General Counsel make any com-
plaint on this point), still the fact that he was allowed to
work alone that Saturday, whether to make up a full 40-
hour week or otherwise, is further evidence that Respond-
ent was not deliberately discriminating against him after
September 24, particularly where the record shows Tom-
kivits was given 5 hours' work on Saturday, October 29,
but paid in the same way for the same reason . Further,
the pattern of assignment of Saturday work in October
and later tends to indicate a significant drop in amount of
that work (except for the use of Bohack) so that, by com-
parison with the assignments in September, it cannot be
inferred that Bradley would have been chosen to work
Saturdays in those months , as against the three higher
paid machinists, even absent Burzynski's remarks of Sep-
tember 23.
From all the facts and circumstances, I must conclude
that Respondent has adduced cogent evidence of
economic and business reasons for the lack of assignment
of Saturday work to Bradley on and after September 24,
which is adequate to rebut the prima facie case made by
General Counsel, and General Counsel has not sustained
the ultimate burden of substantial proof on the entire
record to show that Respondent discriminated against
him in this respect. As in Perez' situation, the facts
overall raise a suspicion of discrimination, but suspicion
is not proof adequate to support a finding of violation or
warrant remedial action. I therefore recommend that the
amended complaint be dismissed insofar as it alleges dis-
crimination against Bradley.
Upon the basis of the foregoing findings of fact and on
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
11 I do not credit Bradley 's obviously partisan conclusionary explana-
tion that Bohack was favored because he "leans toward the company" and
"buddies with Burzynski ," for there is no real proof to support this charge
13 It should be noted that, while Respondent at the hearing tried to get
Bradley to admit he had worked and was paid for 5 hours overtime on the
24th, the summary of company records stipulated in evidence clearly
shows that he was paid 10 hours' overtime for the week ending September
30 (which included Saturday , the 24th) in error because a card entry of I
hour overtime during the regular week was keypunched by error in the
payroll records as 10 hours, and he was paid according to that error.
14 At the time, Bohack was paid $2 27 an hour, and Bradley had the
lowest rate of $1 96, as Ubnoski got $2 11 an hour, and Tomkivits $2 13
an hour, which warrants the inference, absent any detailed explanation of
his performance , that he did not command as much pay as the others
because of lack of service, experience , or performance
HACKNEY IRON & STEEL CO. 621
and the Union is a labor organization, within the meaning
of the Act.
2. All production and maintenance employees of
Respondent at its Navasota, Texas, plant, excluding of-
fice clerical employees, guards, watchmen, and super-
visors as defined in the Act, constitute a unit appropriate
for purposes of collective bargaining, within the meaning
of Section 9(b) of the Act.
3. At all times on and after May 18, 1965, the Union
has been and now is the exclusive representative of all
employees in the above unit for purposes of collective
bargaining, within the meaning of Section 9(a) of the Act.
4. By refusing on and after August 29, 1966, to recog-
nize said Union and bargain with it as such representative
of its employees, in the various ways found above,
Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(5) and (1) and 2(6) and (7) of the Act.
5. Respondent has not engaged in any unfair labor
practices in the manner or amount of assignment of Satur-
day overtime work to Jesse G. Perez and W. C. Bradley
since September 23, 1966, as alleged in the amended
complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act. In view of
Respondent ' s unlawful elimination of seniority and
refusal to recognize other rights and benefits which its
employees may have enjoyed under the Tru-Weld con-
tract to which it must adhere, I shall also recommend that
Respondent make its employees whole for any losses
which they may have suffered by reason of the unilateral
change in working conditions subsequent to August 29,
1966, such losses to be computed according to formulae
set forth in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. See
Valleydale Packers, Inc., of Bristol, 162 NLRB 1486.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, I hereby recommend
that Hackney Iron & Steel Co., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain collectively with
the above Union, upon request, as the exclusive bargain-
ing representative of its employees in the appropriate unit
found above, by failing or refusing to recognize or adhere
to the terms and provisions of the collective-bargaining
agreement executed between said Union and Tru-Weld
Co., failing or refusing to discuss grievances with said
Union under the terms of said agreement, or by unilateral
changes of wage rates, wages, seniority rights, or other
rights and privileges, or other terms and conditions of em-
ployment, of its employees in said appropriate unit, which
is described as:
All production and maintenance employees at Respond-
ent's Navasota, Texas, plant, excluding office clerical
employees, guards, watchmen, and supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the Act
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the above Union as the exclusive representative of
all its employees in the appropriate unit found above, with
respect to rates of pay, wages, hours of work, seniority
rights, and other terms and conditions of employment, as
covered by the terms and provisions of the agreement
made between said Union and Tru-Weld Co., if that
agreement is still in effect and if it has expired, upon
request, bargain with said Union as representative
aforesaid for the purposes and on the subjects aforesaid,
and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Make whole its employees for any loss of pay or
other benefits they may have suffered by reason of the
unilateral change in their working conditions on and after
August 29, 1966, but no provisions of this Order shall
operate or be construed to allow Respondent to eliminate
or reduce any wage raises or other benefits given by it on
and after said date.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant or necessary to facilitate a determination
of whatever payments may be required to make its em-
ployees whole.
(d) Post at its plant in Navasota, Texas, copies of the
attached notice marked "Appendix."15 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 23 after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from date of receipt of this Decision, what steps
Respondent has taken to comply herewith.16
1 FURTHER RECOMMEND that the amended complaint
be dismissed insofar as it alleges an unlawful denial of
Saturday overtime work to Jesse G. Perez and William C.
Bradley.
15 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 by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
1 6 1 n the event that this Recommended Order is 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 Re-
pondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to recognize or bargain col-
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lectively with International Chemical Workers, and
its Local 773, AFL-CIO, upon request , as the exclu-
sive bargaining representative of our employees in
the appropriate bargaining unit set forth below, by
failing or refusing to recognize or adhere to the terms
and provisions of the collective -bargaining agree-
ment executed between said Union and Tru-Weld
Co., by failing or refusing to discuss grievances with
said Union under the terms of said agreement, or by
unilateral changes of wage rates, wages, seniority
rights, or other rights and privileges, or other terms
and conditions of employment , of our employees in
the following appropriate unit:
All production and maintenance employees at
our Navasota , Texas, plant , excluding office
clerical employees , guards, watchmen , and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in said
unit in the exercise of rights guaranteed to them by
Section 7 of the Act.
WE WILL, upon request , recognize and bargain
with the above -named Union as the exclusive
representative of all our employees in the unit
aforesaid with respect to rates of pay, wages, seniori-
ty rights, and other rights and privileges , and other
terms and conditions of employment , as covered by
the terms and provisions of the agreement aforesaid
between said Union and Tru-Weld Co., if that agree-
ment is still in effect ; and if it has expired , we will,
upon request , bargain collectively with said Union as
the representative of our employees aforesaid, for
the purposes and on the subjects aforesaid , and, if an
understanding is reached , embody such understand-
ing in a signed agreement.
WE WILL make whole our employees in the unit
aforesaid for any loss of pay or other benefits they
may have suffered by reason of our unilateral change
in their working conditions on and after August 29,
1966; however , we will not eliminate or reduce any
wage raises or other benefits we have given our em-
ployees on or after said date.
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of the
above -named Union or any other labor organization.
Dated By
HACKNEY IRON & STEEL
Co.
(Employer)
(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 question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board 's Regional Office , 6617 Federal
Office Building , 515 Rusk Avenue , Houston, Texas
77002, Telephone 228-0611.