Imperial Outdoor Advertising

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1248 (N.L.R.B. 1971)

1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Imperial Outdoor Advertising and Sign and Pictorial
Painters of Omaha , Nebraska, Local No. 752, affili-
ated with Brotherhood of Painters and Allied
Trades, AFL-CIO. Case 17-CA-4439
August 27, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On May 19, 1971, Trial Examiner Arthur M.
Goldberg 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. He
also found that Respondent had not engaged in
certain other unfair labor practices and recommend-
ed that the allegations pertaining thereto be dis-
missed . Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision with supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner, except as modified herein.
The Trial Examiner found that Respondent com-
menced bargaining as part of a multiemployer
bargaining unit and did not unequivocally manifest
its desire to withdraw from that unit.3 In reaching
this finding, the Trial Examiner relied on testimony
of Union Business Representative Penix that in the
opening statements made by Dayton Rasmussen, Jr.,
the Employer's representative, at the beginning of
each of the 6 negotiating sessions , he stated that the
employers "would bargain as a group for conven-
ience but would sign individual contracts." The Trial
Examiner concluded that the statements were ambi-
1 We find no merit in Respondent 's contention that the Trial
Examiner was biased and prejudiced and that the hearing was not fairly
conducted.
2 The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188
guous and not necessarily inconsistent with an intent
to continue to bargain on a multiemployer basis and,
therefore, were not the clear and unequivocal
statement of an intent to withdraw from the
multiemployer bargaining essential to accomplish
that purpose.4 We disagree. It is clear to us that
Rasmussen's statements are susceptible to no other
reasonable interpretation than that he intended to
bargain on an individual basis for each employer and
that the Union so understood those statements.
As noted, Imperial became a part of the multiem-
ployer unit by virtue of its successorship to Naegle
and its adoption of Naegle's collective-bargaining
contract with the Union on November 1, 1968. At
the first bargaining session on April 8, 1970, and
again at the beginning of each of the other five
sessions , Rasmussen informed not only Penix, the
Union's business representative, but also Gibson, the
International representative, that the employers
would bargain as a group for convenience but would
sign individual contracts. Furthermore, Penix admit-
ted that at the'very outset Rasmussen also stated that
he would be chairman of the employer negotiating
group, that he represented all of the employers
present, and that the employers were not bargaining
as an association. The Union did not dispute the fact
that the employers had never bargained as an
association, that no association of sign companies in
Omaha had ever existed, and that the Union knew
this to be the case. To assume, therefore, as did the
Trial Examiner, that Rasmussen's statement did not
indicate any change in the Employer's bargaining
status would place a strained and unreasonable
interpretation on his words . Rasmussen's insistence
that the employers were there to bargain as a group
for convenience, that they were not bargaining as an
association when no association had ever existed,
and that they would sign individual contracts could
have had no rational purpose if it had been his intent
to bargain on a multiemployer basis. In that case, a
simple statement, or no statement at all, would have
indicated to the Union that bargaining was to
proceed on a multiemployer basis. Moreover, when
we consider that Mathey, Respondent's general
manager, had strong feelings against bargaining with
the Union on any basis, had sought to induce the
employees to abandon the Union, and, as credibly
testified to by the former plant superintendent, stated
that his attorney would know how to deal with the
F.2d 363 (C.A. 3). We have carefully examined the record and find no basis
for reversing his findings, except as noted below.
3 The Trial Examiner noted that the Board had previously determined
that Respondent's predecessor, Naegle Outdoor Advertising Co., was part
of a multiemployer bargaining unit . Omaha Neon Sign Co., 170 NLRB No.
150.
4 Retail Associates, Inc., 120 NLRB 388.
192 NLRB No. 183
IMPERIAL OUTDOOR ADVERTISING 1249
Union to accomplish that purpose, it is difficult to
believe that Respondent would not have retained its
freedom to bargain on an individual basis. Indeed,
Mathey testified that in January 1970, he orally told
Rasmussen that Imperial did not want to be part of a
multiemployer bargaining group. Furthermore, prior
to the commencement of the negotiations, at a
meeting of the representatives of the various compa-
nies involved in the bargaining, Mathey claimed that
the employers agreed to have Rasmussen act as their
bargaining agent, but that they wanted to negotiate
separately because there were differences in the way
the companies operated. There is no clear indication
whether the Trial Examiner specifically discredited
this testimony, and neither Wolford nor Tibbetts,
employers who were present at the negotiations and
whose testimony the Trial Examiner credited, contra-
dicted Mathey.
We therefore believe that Rasmussen's statements
could reasonably have had no other meaning than
that the employers were undertaking collective
bargaining on an individual basis and would sign
individual contracts, although the employers would
bargain as a group. Bargaining as a group for
convenience only is not inconsistent with an intent to
bargain on an individual basis only.5 We conclude,
therefore, contrary to the Trial Examiner, that
Respondent is not, and has not been at all times
material , a member of and bound by any agreements
reached by a multiemployer bargaining unit consist-
ing of Respondent, Omaha Neon Sign Co., Neon
Products Company, Inc., and Globe Neon Sign C0.6
We also do not agree with the Trial Examiner's
finding that Respondent violated Section 8(a)(5) of
the Act by employing strike replacements at wages
below those established in the expired contract
without bargaining with the Union. The record
shows that the employees went on strike on June 1,
1970, upon the expiration of the contract. On June 6,
Respondent began hiring replacements at a wage
rate of less than the hourly rate contained in the
expired contract. We believe, contrary to the Trial
Examiner, that Respondent was under no obligation
to hire the replacements at the wages in the contract
and that it does not violate the Act by paying them
lower rates .? We consider Harold W. Hinson, d/b/a
Hen House Market No. 3, 175 NLRB No. 100, as not
in point. There the issue involved a unilateral
increase in the wages and other modifications of
existing terms and conditions of employment of unit
employees and not, as here, the question as to what
wages may be paid strike replacements. We shall,
therefore, dismiss this 8(a)(5) allegation.
Although we have found that the Respondent was
not bound by agreements reached by a multiemploy-
er bargaining unit, we have found, in agreement with
the Trial Examiner, that the Respondent violated
Section 8(a)(5) in other respects. We shall therefore
order Respondent to cease and desist therefrom and
take certain affirmative action designed to effectuate
the purposes of the Act. As the strike was an unfair
labor practice strike from its inception on June 1,
1970, it is evident that the Union continues as the
majority representive of Respondent's employees. In
these circumstances, we find that the unit appropri-
ate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act comprises the
following employees:
All sign painters and helpers, designers, and sign
hangers employed by the Employer, excluding
office clerical employees, guards and supervisors
within the meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Imperial Outdoor Advertising,
Omaha, Nebraska, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order, with the following
modifications:
1. Modify paragraph 1(c) by deleting therefrom
the words "by unilaterally changing established
terms and conditions of employment or."
2. Delete paragraph 1(d) and substitute therefor
the following:
"Refusing to bargain with the Union as the
exclusive bargaining representative of its employees
in the unit herein found to be appropriate."
3. Delete paragraphs 2(b) and 2(c) and redesig-
nate paragraphs 2(d), 2(e), 2(f), 2(g), 2(h), and 2(i) as
paragraphs 2(b), 2(c), 2(d), 2(e), 2(f), and 2(g),
respectively.
4. Substitute the attached notice for the Trial
Examiner's notice.
5 Electric Theater, et al., 156 NLRB 1351.
6 For the reasons stated by the Trial Examiner , Member Brown would
find that the bargaining was conducted on a multiemployer basis and that
Respondent , therefore , is bound to sign any agreement the other employers
execute as a result of the 1970 negotiations.
I Overnite Transportation Company, Inc., 175 NLRB No. 127.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT ask our employees to drop out of
the Union or assist them in doing so.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT bypass the Union in dealing with
our employees or ..ask our employees to sign
contracts with the Company without the Union.
WE WILL NOT discriminate against or discharge
employees to discourage membership in the
Union.
WE WILL NOT in any other manner interfere
with, restraint or coerce you in the exercise of
your, rights to organize yourselves , to form, join,
or , assist Sign and ,Pictorial Painters of Omaha,
Nebraska , Local No. 752, affiliated with Brother-
hood of Painters and Allied Trades, AFL-CIO.
WE WILL, upon application, offer to Denzel E.
Barnett, David Pyle , and Emil Lorence immedi-
ate, and full reinstatement to their former jobs or,
if those jobs no longer , exist, to substantially
equivalent positions, without prejudice to their
seniority and other rights and privileges , dismiss-
ing, if necessary , any persons hired on or after
June` 1; 1970. If jobs are not available , we will
place their names on a preferential hiring list.
'WE WILL offer Robert Straka immediate and
full reinstatement to his former job and pay him
for wages lost from the ' date of his unconditional
application for-reemployment in' September 1970.
WE WILL, upon request, recognize and bargain
with Sign and Pictorial Painters of Omaha,
Nebraska , Local No. 752, affiliated with Brother-
hood of Painter`s and,4llied Trades, AFL-CIO, as
the exclusive representative of" all of the employ-
ees in the bargaining unit described below,,with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment and , if an understanding is reached , we will,
upon request, embody such 'understanding in a
signed contract. The bargaining-unit is"'.
All sign painters and' ,helpers, designers, and
sign ' hangers employed, by the" Employer,
excluding office clerical, employees, ' guards
and supervisors within the meaning of the
Act.
IMPERIAL OUTDOOR
ADVERTISING
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and,must not be defaced
by anyone.
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.
,Any., questions concerning, this, notice or compli-
ance with its -provisions may be, directed to the
Board's Office, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone
816-374-5181.
TRIAL EXAMINER'S DECISION
ARTHUR , M. GOLDBERG, Trial Examiner : Based upon a
charge filed on September 21, 1970,1 by Sign and Pictorial
Painters of O"maha, Nebraska, Local No. 752,' affiliated
with Brotherhood of Painters and Allied ' Trades,
AFL-CIO`(herein called the Union or the Charging Party),
the complaint herein issued on December '- 23,alleging. that
Imperial Outdoor Advertising (herein called--Imperial or
the Respondent) violated Section 8(&X 1), (3), and (5) rof the
National Labor Relations Act, as amended (herein called
the Act). The complaint alleged that, Imperial violated
Section 8(a)(1),by offering _to sign individual contractswith
its sign painters, threatening to discharge employees who
refused to sign individual contracts or to end'their ' strike
against-Respondent , suggesting that sign painters ' resign
from the Union, telling its sign painters that it would never
sign an agreement with the Union, 'advising an-employee
that he would be considered for employment 'if - he
withdrewt from- "the Union, and- assisting an employee in
resigning from the Union. Respondent allegedly violated
Section 8(aX3)^ by ,discharging its four sign painters while
they.were engaged in a strike., The -putative 8(aX5) violation
was spelled out, in paragraphs 8 'and 9 of the complaint set
forth below:
8. On or about July 1, 1970, the Union and Sign
Companies [an asserted multiemployer "bargaining
group of which the Respondent ' was allegedly a
member ] reached 'agreement on a collective bargaining
contract covering all, the employees in the appropriate
unit referred to above in paragraph-5 [a unit consisting
of all "sign painters - and helpers, designers,, and sign
hangers employed by the -employer members of Sign
Companies."]
9. At all times
s'to' ce
July 1, 1970, Respondent has
failed and refused sign- and execute the collective
bargaining agreement referred to' in the i preceding
paragraph 8, although requested to do so. -'
As well, certain of the" acts alleged to have violated
Section 8(a)(1) were alleged to have violated Section -8(a)(5)
of the Act.
The answer denied , all material allegations of the
complaint including the, allegations ` pertaining to Sign
Companies as a multiemployer bargaining group.
All parties participated in - the hearing in Omaha,
Nebraska, on February -9 and 10, 197„1, and were afforded
full, opportunity to, be heard, to introduce evidence, to
examine and cross-examine witnesses , and ,to present ,pral
1 Unless otherwise noted all dates herein were in 1970.
IMPERIAL OUTDOOR ADVERTISING 1251
argument. Oral argument was waived and briefs were filed
by General Counsel, the Respondent, and the Charging
Party.
Based upon the entire record in the case, my reading of
the briefs, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Imperial Outdoor Advertising, a Nebraska corporation,
is -engaged in outdoor advertising ., ' Imperial's Omaha;
Nebraska, faciht}1 is Respondent's only location involved
in this proceeding. In the course and conduct of its
business operations Imperial annually sells products and
services in excess of"$50 ,000 to customers ' located outside
the State of Nebraska.
The complaint alleged, the answer admitted , and I find
that Imperial is and has been at all times material herein an
employer engaged - in commerce within the meaning of
Section ' 2(6) and (7) of the Act and -meets the Board's
standards for assertion of its jurisdiction.2
IL THE .LABOR ORGANIZATION INVOLVED
Sign- and Pictorial Painters of Omaha, Nebraska, Local
No., 752, affiliated with Brotherhood of Painters, and Allied
Trades, AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of theAct. i
Products Co., Globe Neon, Omaha Neon, and Cronland
Signs. As in prior years the companies signed identical
individual contracts. -
Beth Wofford, president of Neon Products, testified that.
she participated in the, 1967 and 1968,negotiations as well
as those in 1970 which led to the instant proceeding.
Wofford stated that as far as she- was concerned the 1970
negotiations were no different, at all from the ones in prior
years. Donald Tibbetts, president of Globe Neon Sign
Company, agreed that the 1970 negotiations "were handled
in much the same manner" as prior dealings with the
Union. Tibbetts stated that the companies would get
together and bargain with the Union. Neither Woffordnor
Tibbetts understood the meaning of the term "multi-
employer bargaining."
Dayton Rasmussen, Jr., who represented Respondent in
this proceeding, was the chairman of the employers'
bargaining group in all -the negotiations in question and
served as their chief spokesman.
On November 1, 1968, Imperial purchased Naegle
Outdoor Advertising. -Grant Mathey, Imperial's general
manager and executive officer, of its Omaha installation,
testified that as successor to Naegle Imperial observed
Naegle's contract with the Union.. At the time Imperial
took over from Naegle a number of the sign painters were
told by Imperial officials and 'super'visors - that Imperial
considered itself bound by Naegle's agreement with the
Union.
B. The Multiemployer Bargaining Unit
III. THE UNFAIR LABOR PRACTICES
A. Background
For a number of years negotiations between the Union
and a number of Omaha sign companies had been
conducted- by the companies as a group with each
participating employer signing an individual but identical
contract. 'Chester Penix, the Union's business representa-
tive, testified that he first took part in such negotiations in
1967 when the participating' companies were Naegle
Outdoor Advertising, Globe- Sign Company, Neon Prod-
ucts Company; Inc., and Prominent Signs . A fifth sign
company, Omaha Neon Sign Co., sought to stand aside
from those negotiations but ' was found in a Board
decision) to be 'part of -the 'multiemployer bargaining
group, bound by the outcome of the group bargaining, and
was ordered- to execute the same contract which the other
sign companies signed with the Union. In addition the
Board found that Omaha Neon's employees were part of a
bargaining unit which included the painters employed by
the other sign companies- in the -multiemployer bargaining
group. -
The -1967 negotiations led to a 2-year contract containing
a wage reopener after 1 year. In 1968 the wage reopener
negotiations led to a new agreement with a term running
until May 31, 1970. The companies involved in the 1968
negotiations were Naegle Outdoor Advertising, Neon
a The issues arising from the complaint allegations concerning the
existence of a multiemployer bargaining group and the parameters of the
bargaining unit are treated below as going to the heart of the'alleged refusal
The 1970 negotiations were initiated by the Union
sending reopening letters on March 18 to six employers,
Imperial, Omaha Neon, Neon Products, Globe Neon Sign,
Cronland Sign, and Universal Sign Co. In this letter the
Union asked for a meeting with the employers in early
April. A few days thereafter Dixon, a representative of
Cronland Sign, called- Penix, the Union'' s business repre-
sentative, advised the Union that Cronland did not wish to
be represented by Rasmussen in the upcoming negotia-
tions, and agreed to sign any agreement which came out of
the multiemployer bargaining. Thereafter, Cropland and
Universal Sign signed interim agreements with the Union
providing that the two employers, would .pay wages equal'to
the Union's last demand, would adhere to any agreement
reached in bargaining with the mulfiemployer bargaining
group, and that in the event of a strike the employees of
those employers signing the interim agreement would
continue working.
After mailing the letters to the employers Penix called
Mathey of- Imperial who advised the union- agent that
Rasmussen would represent Respondent in the upcoming',
negotiations. Penix then called -Rasmussen and arranged'
for the first bargaining meeting to be held on April 8. This
meeting was held in Imperial's offices.' In their telephone
conversation Rasmussen told Penix that he should contact
the employers through Rasmussen. Further, Penix testified
without contradiction that in this conversation Rasmussen
to bargain.,
3 170 NLRB No. 150.
1252, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that .the employers would bargain as a group but
would signindividual.contracts.,
Mathey testified that he deemed the multiemployer
bargaining group to have-been ,dissolved when Imperial
purchased Naegle.• Mathey did -' not ; communicate this
understanding to the Union but stated that some time in
January, he orally informed Rasmussen that Imperial did
not wish to be apart of a.multiemployer bargaining group.
Rasmussen did. not iinform Matheythat he had passed this
information- on to, the Union. Rasmussen did not testify.
Mathey=-testified that` he never communicated in writing
Imperial's'-purported"intent to withdraw from the multiem-
' - :.ployer bargaining unit.
Prior to-the first bargaining session with the Union there
was a meeting of representatives of the various companies
involved "in the ^-bargaining. 'Matheyhad received a call
from-Mrs.- Wofford of 'Neon Products who informed him
that- Rasmussen had- `suggested'- that the companies get
together for convenience and'use` Imperial's conference
room for bargaining meetings .` Mathey claimed that at
their, meeting,", the employers agreed that they wanted
Rasmussen to act as their bargaining agent but wished to
negotigte, separately because'there were` differences in the
way the"companies operated. Mathey testified, "I wanted
to be alone, because we `were a-different'company from the
other companies However, for convenience they
would get together as this was` easier than conducting a
number of separate negotiations.
The first bargaining session was held on April 8 at
Imperial's office. `Present for "the employers were Rasmus-
sen and representatives of Imperial, Globe Neon, Neon
Products;'and Omaha Neon. Penix represented the Union
and was accompanied by three employees.
PenbC testified that Rasmussen opened the meeting by
stating that' the, employers- would' bargain` as a group for
convenience but'wwould sign individual contracts. Further,
Penix stated that Rasmussen advised that he would be
chairman of the employer- negotiating group and that he
represented all of the employers present Rasmussen stated
as` well that' the"employers were not bargaining as an
association.
Mathey , `testified that Rasmussen opened the meeting
with "`the statement that he' was representing each of the
companies separately and that they were not bargaining as''
a collective group. Mathey stated that Penix neither
objected 'nor 'raised any 'questions to Rasmussen's opening
statement.
Wofford stated, that Rasmussen opened each meeting,
including that on April 8, with the statement that he was
bargaining for each `company as an individual, that he was
their attorney She further testified that Rasmussen stated
that, the companies were bargaining at one time for the,
convenience of the, individual sign companies and for the
convenience ,of the Union.
Tibbetts . of, Globe , ,Sign , Co. testified that Rasmussen
opened , the, meeting with the statement that he represented
4 There was general agreement by all witnesses that there is no
association of sign companies in Omaha and that there had not been such
an association for many years . However, the fact that there is no
"association" is not dispositive of the issue of whether there was a
each company , individually, naming the companies in- ,-
volvedG
Employee Pyle also testified concerning Rasmussen's
opening statement , at the April- 8 meeting but his testimony
is not, helpful on--this point as the following question, and
answer disclose:
Q. You are not sure what Mr. Rasmussen said,
then, at that session in his" "opening statement?
A. [Pyle] No; no.
In the absence of any record evidence that Imperial in
any way or at any time prior to April 8 informed the_Union
that it. wished to withdraw from the m"ultiemployer,unit of
which it was admittedly aware, ,I . deem ; the opening
statement by Rasmussen at the . April 8 meeting to be
controlling of the question wheth er"the multiemployerunit
continued beyond that date and l whether, Imperial , re-
mained part of that unit , bound by whatever results, were,
reached in its bargaining-, with the , Union . Further, if
Respondent , entered the--bargaining as part of a multiemr,
ployer unit, any subsequent effort by Imperial to withdraw
from , the multiemployer negotiations , in the absence, o€
unusual conditions, and there are no,unusual , conditions
shown here,5 would have been untimely.6
The controlling legal-elements in determining ,whether
Respondent withdrew in timely fashion from the multiem-
ployer bargaining'unit'were,succinctly ' stated -by the-Board
in Retail Associates,' Inc., 120 - NLRB . 388, 393-394:
... the intention by a party to withdraw must be
unequivocal , and exercised at a an ` appropriate' , time.
[footnote omitted ] The decision to withdraw must'
contemplate a sincere abandonment , with relative
permanency, of 'the multiemployer- unit and the
embracement of a different course of bargaining on an
individual-employer basis.
In the instant case determination of whether the
intention to withdraw was "unequivocal" boils down to a
resolution of, the conflicts in the ,, testimony concerning
Rasmussen 's opening ,, statement at the April 8 meeting.
Whether "the decision to - withdraw. [contemplated] a
sincere, abandonment .., . of the multiemployer, unit and
the embracement of a different course of bargaining on an
individual-employer basis" must ' be determined- from,,
actions in the bargaining , during the course of the meetings
following April 8. ,
On the first issue, whether, there was an "unequivocal"
withdrawal, Penix testified that Rasmussen stated on April,;
8 that the, companies would ,bargain as, a= groups for
convenience ' but would; ,sign individual contracts, that
Rasmussen would be chairman of, heremployer negotiating
group, and that Rasmussen represented^all of=the employ-
ers, present. Based on my observation of Penix during.his
appearances on the witness stand I found himto; be a
credible witness. While I do not accept his claim that ,„tire,
parties ;had agreed upon all terms of a new collective
agreement, this determination- , is based not,,upon,-my
evaluation of, his personal credibility but rather. upon ;a
choice between the testimony of equally credible witnesses,
multiernployer bargaining unit.
5 Cf. U.S. Lingerie Corporation 170 NLRB No. 77 ; Spun-lee Corporation,
171 NLRB No.64.'
6 'Omaha Neon SignnCo, 170^NLRB No: 150.
IMPERIAL OUTDOOR ADVERTISING
Penix, Wofford, and Tibbetts, in a situation where Tibbetts
and-, Wofford corroborated each other while Penix's
testimony as to that aspect of the case was uncorroborated.
Mathey "claimed that Rasmussen opened the April 8
meeting with the statement that he was representing each
of the companies separately and that they were not
bargaining as a collective group. Based upon my observa
tion of Mathey as, a, witness `I do not credit his version of
events except where he is unequivocably corroborated by a
credible witness. In connection with Mathey's credibility in
this proceeding I note the testimony of Joseph Scott,
Respondent's plant manager during the time of the events
herein: Scott,'whom I credit, testified that about the middle
of May he asked Mathey how negotiations were proceed-
ing. Mathey replied that the contract would be taken care
of and that the Union had some surprises coming. Scott
testified that Mathey "told" me that he had hired a very
reputable "attorney, I believe his name was, that he
identified him, Mr. Rasmussen, that he was quite capable,
that this was his field, that he had success in breaking,
union negotiations before and that everything was going
along smoothly in the: negotiating at the present time." In
theirf'testimony as to Rasmussen's opening statement on
April 8, neither Wofford norTibbetts offered corrobora-
tion to Mathey. Wofford testified that Rasmussen stated
that he was "bargaining for each of us as an individual."
This statement is more susceptible of interpretation as
explaining Rasmussen's,role in the negotiations rather than
in defining the status of the participating companies vis-a-
vis the_ existing multiemployer bargaining unit. Thus, at
best Rasmussen's statement as reported by Wofford was
ambiguous and does not meet the Board's requirement that
the intention to, withdraw be "unequivocal." I find,
Tibbetts' version of Rasmussen's opening statement to be
equally equivocal. Although this statement does not
pertain as clearly to Rasmussen's position in the negotia-
tions rather than that of the participating companies, it too
can reasonably be, so, interpreted. I note that Rasmussen,
who would, best know what he said on April 8, did not take
the stand in this, proceeding.
On the basis of the credited testimony I find that at the
critical _time for withdrawal =from the multiemployer unit
Imperial's authorized spokesman did not repudiate the
ongoing existence of, the multiemployer bargaining unit
and did not unequivocally express Imperial's intention to
withdraw from the multiemployer unit.
Further, the companies' course of bargaining which
ended on July 1 fails to establish "a sincere abandonment
. of the multiemployer unit and the embracement of a
different course of bargaining on an individual-employer
basis." Thus, a wage offer of 5 percent by Rasmussen on
May, 25 was made on behalf of all four companies.? On
May 27 Rasmussen raised the offer to 7 percent on behalf
of all four employers. 3 As - to this increased wage offer
Mathey testified, "We didn't speak individually for
7 Omaha Neon did not havea representative at the May-25 bargaining
session.
s, The revised collective agreement was submitted to the Union by
Rasmussen as the "Company Proposal." The covering letter was on the
letterhead of the Midwest Employers Council, Inc., and was signed
MIDWEST EMPLOYERS COUNCIL, INC.
/s/ Dayton
1253
ourselves." Finally, in connection with the nature of the
bargaining much testimony was offered by Respondent
that separate bargaining was desired and needed because
the operations of the companies involved varied to a
considerable degree and the one contract which they had
executed in the past was inappropriate for the divergent
operations. Yet, the formal contract proposal submitted by
Rasmussen8 covered all four companies involved in the
negotiations and there were no addenda adjusting the
terms to meet the needs of, the individual employers.
All things considered I find that at all times material
herein Respondent was a member of a multiemployer
bargaining unit, 9 that all sign painters and helpers,
designers, and sign hangers employed by the employer
members of that multiemployer unit 10 constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, and that
Imperial was bound by any agreement reached as a result
of bargaining between the Union and-said multiemployer
bargaining unit.11
C. The Issue of an Agreed Upon Contract
1. The 1970 negotiations
At the April 8 meeting in Imperial's office Union
Representative Penix distributed copies of the Union's
proposal. Two items, the pension and the health and
welfare plans, had been omitted from the draft and Penix
read those proposals to the employers. As well, Penix
announced that the Union was requesting a 35-percent
wage increase. The balance of this meeting consisted of a
point by point, discussion of the Union's, proposal with
such items as the classification of employees debated at
length.
The meeting of May 14 was convened at Imperial's
office. At this meeting Rasmussen read a counterproposal
containing a number of changes in. contract language.
Rasmussen agreed to send a copy of this counterproposal
to Penix.12 The Union was still demanding a 35-percent
raise and Rasmussen offered a 5-percent increase on behalf
of the four companies in the bargaining group.
The third bargaining meeting -was held in the officesi of
the Federal Mediation and Conciliation Service but the
mediator assigned to the negotiations was unable to attend.
Management's counterproposal was discussed and the
parties stayed with their wage proposals of 35 percent and
5 percent, respectively.
The parties met again on May 27 at the mediator's office.
On this occasion and all subsequent meetings the mediator
was in attendance. This was the last meeting at which
Imperial was present. Penix announced that the Union was
rejecting Rasmussen's counterproposal. The Union re-
duced its wage demands to 25 percent and Rasmussen
offered 7 percent on behalf of the employer group. Tibbetts
recalled that this wage, proposal was made as a "last offer:"
Dayton O. Rasmussen, Jr.,
Executive Vice-President
9 Referred to in the complaint as "Sign Companies."
50 Imperial , Globe Neon Sign Co., Neon Products, and Omaha Neon.
11 Cf. Wm. T. Kirley Lumber Company, 189 NLRB No. 9.
12 See fn . 8, supra.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employers' -wage offer was tied to a no-strike
commitment by the Union., The issue of subcontracting
was discussed with the Union .asking for a limitation on
management's right to subcontract and the companies
insisting on no restrictions. ,Fenix said he would present the
7-percent wage offer to; a union meeting that -night but
stated that,the proposal would be rejected.
The penultimate bargaining session was held on June 22.
The contract had expired on June 1 and the Union had
called a strike against the four companies involved in the
negotiations, including Imperial. Penix testified that he
took note of Imperial's absence but raised no question as
"[i]t was a common _practice for an employer to miss a
meeting occasionally." Rasmussen reiterated the position
that,a 7-percent increase was enough for anybody. As well,
Rasmussen stated that Imperial and the Union were at an
impasse on wages.
The final bargaining session was held on July 1. For the
employers only Rasmussen, and representatives of Neon
Products and Globe Neon Sign were present. Mrs.
Wofford opened the meeting with a report on her
investigation of what other sign dbinpames in the West
were paying to their painters. Penix testified that after an
hour and a half of discussion the parties were "completely
hung up on contractual language." The mediator suggested
that the parties meet in separate caucuses. In one such
session the mediator suggested to the employers that they
make a new offer of 50 cents-per-hour effective at once, 25
cents effective January 1 1971, and an additional 50 cents
to be paid July 1, 1971. In addition the mediator proposed
that the, employers agree to moonlighting and trade board
clauses,-that the language of the final contract be left to
subsequent discussion, and that the 'employees go back to
work. This offer was made to the Union by Rasmussen and
accepted.
Fenix -agreed that there was agreement on the wage
increase and moonlighting and trade board clauses but
that as to the contract itself the parties agree to continue
with the language of the former agreement.'At that point,
Penix ^ stated; he said he would, prepare copies of the
contract-and mail them to the employers. Mrs. Wofford
and Tibbetts testified to the agreement to continue meeting
to work out the final language for the'collective-bargaining
agreement. `As earlier noted I found the three witnesses,
Penix, Wofford, and Tibbetts, to be credible. I choose the
version offered by Mrs. Wofford and Tibbetts not only
because of their earnestness in presentation but also
because their conduct subsequent to the negotiations 13
was consistent with their understanding of the agreement
as to contract language presented above.
2. The postnegot,iation events
Sometime after July 1 Penix had mimeographed and
mailed to ^ six, sign companies 14 copies of what he,
characterized as the new contract. There was no covering
letter with the contracts. Attached to the copies of the
contract was a small piece of paper with a note reading
"Please sign and return."
13 Set forth below.
14 Imperial , Globe Neon, Neon Products, Omaha Neon, Universal, and
Cronland Sign.
The Union received signed contracts, from, ,Cronland
Sign, Universal, and Omaha Neon. Sam Marchese„owner
of Omaha Neon since October, was unable, to explain the,
circumstances under which -Omaha Neon had signed since
at the time the documents were executed the company was
a division of another company in Lincoln, Nebraska,and
the documents had been signed by the former owner.
All of the employers, other than Imperial, implemented
the agreement to raise wages, which had been part of the,.,
understanding between the Union and the multiemployer
bargaining,group on July 1,.
Mrs. Wofford of Neon Products testified that after she
received her two copies of the document she received a call,
from Mathey of Imperial and ` that she in turn called,
Rasmussen to ask what he knew about, the proposed
agreement.. , Rasmussen told her that he didn't know^what'it
was all about as he had not received, copies. Thereafter
Tibbetts of Globe Neon called Wofford` to ask about the
documents. Wofford testified that there had been no
agreement on' a contract with the Union but that there had
been agreement 'on wages and she had implemented the
wage increase. As to the contract itself Wofford stated that
there had been an understanding that the parties would
meet once a month after JulyJ to straighten out the'
contract language. ' " ;
Tibbetts testified that some` time after he, had received
the proposed contracts from the Union and had made'
inquiry about them to Mrs. Wofford' and Rasmussen he
received a visit from `Penix who asked if he would not sign
the 'agreements." Tibbetts told the union agent that k was
his understanding that -there, had been no agreement on''
wording and he'refused to sign. Penix testified that things
had been heated during his visit 'to Tibbetts'. The union
agent agreed" that Tibbetts had claimed that there were to
be , further meetings with the mediator , to ^ work out the
contract language.
As noted,, I credit Tibbetts -and- Wofford as to their
recollection on the matter of an agreed= upon contract.
Accordingly, I find that the parties- had not reached
agreement on a collective bargaining contract as alleged in
the complaint and shall recommend dismissal-of `paragraph
9 of the complaint which alleged that Imperial"violated
Section-'8(a)(5) of ' the Act by failing and refusing to sign,,
and execute` the collective bargaining contract allegedly-
agreed -upon on July ,1. Shreveport Garment Manufacturers,
133, NLRB 117.
D. Individual Bargaining With the Employees'
In the middle of May, about 2 weeks before the strike,
Mathey called employees _ Emil Lor`ence and Denzel E.'
(Gene) Barnett to the office. Mathey told the men that the
Union was weak, did nothing for them, and`that_he did not
know why they needed a union. Noting certain provisions
in the contract which he disliked, Mathey told the men that
he did not want a "union son-of-a-bitch" enforcing the
terms of the. contract and telling him,how, to run his
business. Mathey pointed out that the men were well paid,
had good working conditions, received paid holidays, even
IMPERIAL OUTDOOR ADVERTISING 1253
though there was no provision for such benefits in the old
contract, that they had a smooth operation, and said he
didn't know why they could not accomplish the same
results without a union . Lorene testified that Mathey said
he would be willing to sign individual contracts with the
painters but that never under any circumstances would he
sign a contract with, the Union. When Lorence replied that
they were union, members and could- not sign separate
contracts with him Mathey answered that they could quit
the union . Lorence said that even if they wanted to quit the
Union the_ other painters would not go along with such a
move. Mathey commented that Lorene and Barnett did
the bulk of the work in the paint, department, that they
could get ,'along Without the others, and asked Barnett and
Lorence to think over his proposal and give him an answer
as soon as possible. Lorence replied that he did not believe
there was anything for him to think about, that it was up to
the- entire membership whether they went out on strike and
not in the hands of just Lorence and Barnett. Lorence did
not recall that Mathey had presented to them an individual
contract for the employees to sign. Barnett testified that
Mathey had handed him a contract which Mathey had
prepared for Imperial and asked that they take it home and
look it over. Shown-the contract that Rasmussen had
presented as management's counterproposal during the
negotiations Barnett testified that it "looks like the same
one." 1s
Mathey testified that in this conversation with Lorence
and Barnett he had suggested that a revised agreement be
reached which would-better represent actual conditions at
Imperial. Mathey agreed that he had said that if an "SOB"
came along who tried to enforce the literal terms of the old
contract he could change Respondent's operations. Ma-
they,denied that he had suggested individual contracts with
the painters or that he had presented any proposed
agreement to the men other than the Rasmussen counter-
proposal` agreed to by all` the employers involved in the
negotiations . Mathey testified that he gave a copy of the
management ' counterproposal to one or both of the
employees and asked that they take that contract home
and look it over. Mathey -insisted that the proposed
contract he had presented to the men had included the
Union, was not a contract between Imperial and the
individual painters , and -that while he said a number of
times , that he would not sign the contract proposed by the
Union he had not declared an intention not to sign a
contract.
Lorence testified that after the strike began on June I
Mathey called him a number of times. Mathey asked why
Universal was Working and Lorence explained that
Universal had signed an interim agreement and Imperial
could do the same . Mathey replied that he would sign
contracts with the men individually but would not sign a
union contract under any circumstances. Barnett testified
that he received a call from-Mathey about June 10. Mathey
told Barnett that "he could come back to work. When
Barnett asked if Mathey had signed a contract, Mathey
replied that, he had not but that there- was a contract
available if Barnett wanted to resume work. Barnett
checked with the other men as he had told Mathey he
would do and learned that they had been all called by
Mathey with whom they had had a similar conversation.
Mathey testified that he called the men to learn why they
were on strike because he "never received notice that they
had rejected our thing."
Joseph Scott, Respondent's then plant superintendent,
testified that about 2 weeks after the strike began Mathey
told him that Respondent's owner was prepared to go to
great lengths to keep the Union out of Imperial. About a
week later, Scott testified, during a discussion about the
crew which had been hired as strike replacements and their
production and -quality, Mathey spoke to Scott about
getting Emil Lorence to return to work. Mathey suggested
that Scott visit Lorence at home and see if Lorence would
return to Imperial "but not under the union authority or
under union contract." Scott visited Lorence at the latter's
home and reported what Mathey had said. Scott told
Lorence that he was there on a mission to see if Lorence
would return to work without the Union. Lorence refused
to do so. Lorence corroborated Scott's testimony about his
visit to Lorence's home and what was said on that
occasion. Mathey did not refer to Scott's testimony during
his own appearance as a witness nor did he deny Lorence's
account of Scott's visit. Thus, Scott's testimony as to his
conversations with Mathey- and the evidence of Respon-
dent's plant superintendent's visit to employee Lorence's
home stand unrebutted-.
As noted above, I do not credit Mathey except when he
is corroborated by a credible witness. I find no such
corroboration in the record for Mathey's denials that he
had sought through individual bargaining with the employ-
ees to enter into separate contracts with them in denega-
tion of Imperial's statutory obligation to deal with their
collective bargaining agent. In concluding that Respondent
violated Section 8(a)(5)-by such conduct I credit Lorence,
whom I found to be an impressively credible witness, and
Barnett and Scott in their version of the events set forth
above. I further find that Respondent conditioned further
employment of the striking employees upon their disavow-
al of the Union and their entering into separate contracts
with Imperial and thereby violated Section 8(a)(1) and (3)
of the Act.
E. The Strike, Discharge q f the Employees, and the
- Strike Replacements,
On June 1 the contract expired and the Union struck
Imperial, Globe Neon,' Neon Products, and Omaha Neon.
That same day Mathey called Lorerice to ask why Lorence
had not reported for work. "Lorene explained that the men
were on strike. Mathey complained that only Imperial's
employees were on' strike while the other shops were
working. After Lorence stated that Mathey was mistaken,
Mathey said that he thought that Lorence should come in
to work and that "as of today (Lorene] still had a job with
Imperial." Lorence replied that he could not come in to
work. Mathey- asked Lorence to come in to talk the next
day and after Lorence explained that he could not do so
15 Except where noted in the text the foregoing account of this
conversation is based on a- synthesis of the credited testimony of Lorence
and Barnett.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because he was scheduled to enter the hospital, Mathey
stated "I repeat, you still have a job with me today."
As noted above in Section III, D, during June Mathey
made a number of attempts to persuade the employees to
return to work without the Union. On or about June 6
Imperial began hiring replacements for the striking
employees. The first replacement was Anderson who had
been first hired by Respondent in Omaha in 1969 and was
subsequently transferred to Lincoln. After the strike began
Anderson was brought back to Omaha on June 6. Mathey
testified that he discussed wages with Anderson and they
agreed on an hourly rate of less than $4, a figure below the
wage rate established by the contract which expired on
May 31.16 Mathey, testified that additional replacements
were hired on June 11 and 16 and July 5 or 6 and than a
fifth man was hired in August. Except for the men hired on
June 11 or 16 and in August the replacements are still
employed by Respondent. Mathey testified that none of
the replacements was hired at a wage equaling that set
forth in the expired contract. Mathey did not discuss with
the Union the wage rates being individually negotiated
with the replacements.
On June 24 Respondent mailed the following letter to
each of the striking employees:
In as much as-you have terminated your employment
as of June 1, 1970, your insurance conversion privilege
extends only until June 30, 1970.
You may contact Banker's Life of Nebraska's General
Office in Lincoln who will process your application for
conversion at your request prior to June 30, 1970.
To assist you, I have ordered conversion forms and will
have them in my office by Thursday, June 25th and if
not picked up on Thursday, I will mail one to your
-home so that you can have it by Saturday, June 27,
1970 at the latest.
Mathey testified that he sent the letter to the employees
as a favor to them and had gone to the trouble of obtaining
the insurance conversion forms out of the same motives.
He assumed that when the employees did not show up for
work on June 23 that they no longer intended to work for
Imperial. Mathey testified that none of the men asked to
come back to work on June 24 and the conversion forms
were mailed to them.
While I have heretofore found that the negotiations did
not lead to an agreement upon all the terms and language
of a collective bargaining contract and that therefore
Respondent's refusal to sign and execute the contract
forwarded by the,Union was not a violation of Section
8(a)(5), the record does establish clearly that Imperial did
not enter into the negotiations with the good faith intent of
reaching agreement with the Union. In a conversation with
Respondent's Plant Superintendent Scott, Mathey dis-
closed Respondent's plan of action when he stated that the
Union had some surprises coming and that Respondent's
bargaining agent "was quite capable, that this was his field,
that he,had success in breaking union negotiations before
and that everything was going along smoothly in the
negotiating at the present time." While still at the
bargaining table Mathey attempted to persuade the
16 That contract provided that as of December 1, 1969, the rate for
Journeymen Sign Painters would be $4.55 per hour and the rate for Sign
employees to - give up the Union and enter into separate
contracts with Respondent. After the strike began,Mathey
continued his efforts to have the employees renounce' the
protection, of a union agreement, sending, Scott to
Lorence's home to ask Lorence to return to workf on the
condition that he give up the Union. Scott's visit to
Lorene, preceded the dispatch of Mathey's'letter- announc-
ing that the employees had terminated'their employment as
of June 1. I find that these unfair labor practices, coupled
with Respondent's self-acknowledged withdrawal from-the
multiemployer bargaining after May 27 was conduct which
"tends to prolong the dispute." Astro Electronics, Ine.; 188
NLRB No. 92. Whether or,, not conceived by the,Union at
the outset as an economic strike, Respondent's 'conduct
converted the strike into an unfair'labor practice strike and
the strikers are entitled to the protection which the status
of unfair labor practice strikers affords them.. Astr,,o
Electronics, Inc., supra.
Despite Mathey's testimony that the letter of June 24
was sent because, he assumed that when the employees did
not show up for ,work on June 23 they,-nolonger intended
to work for Imperial, the letter set the date; on which Ahe
employees had terminated their employment with Respon-
dent as June 1. That this difference; in-date is more. than
academic is shown by the impact on` the employees'. right
of insurance conversion. If Respondent could consider
their employmentat an end as of June 1; those conversion
rights expired only 6 days after' 'the letter ''was' sent.
Assuming that Respondent had a 'right to terminate their
employment as of the date of the letter, those fights would
have run an additional 24 days. In any event it was
Imperial which close'the effective date of the employees'
termination and Respondent set that 'dale as June, l: On
that date, whether the strike was economic in nature or-as
heretofore' found was an, unfair labor practice strike
because of Imperial's conduct, the, employees, were en-
gaged unprotected concerted activity and had not, been
replaced. Accordingly, by terminating the employees as of
June 1 Imperial violated, Section'8(a)(3) and (1) of the Act.
N.L.R.B. v. U.S. Cold Storage - Coip., 203 F.2d 924,. 927
(C.A. 5), cert. denied 346 U.S. 818. .
Finally, Respondent's unilateral change, in the wages of
painters effectuated-in the employment of "the replacements
at wages below those established in' the last collective
bargaining agreement violated Section 8(axl) and (5) of
the Act. Harold W. Hinson, d/b/a Hen House Market No.
3, 175 NLRB' No. 100. 'Absent- unusual circumstances
requiring deviations in terms and conditions of employ-
ment to' ''insure the continuance of ' operations 17 an
employer may not unilaterally change the economic terms
of, an expired collective bargaining agreement without
prior notification to the collective bargaining, representa-
tive. Bethlehem Steel Company (Shipbuilding, Division) v.
N.L.R.B., 320,F.2d 615 (C.A.3), cert., denied375,U.S. 984.
There was no showing of such unusual circumstances in
this proceeding.
Painters Helpers was set at $4.
17 M. R. & R. Trucking Co. v. N.LR.B., 434 F.2d 689, 696'(C.A. 5).
IMPERIAL OUTDOOR ADVERTISING
F. Robert Straka's Withdrawal From the Union
Robert Straka was first employed by_ Respondent on
November 11-,-1 9,69. Straka was not paid at the journeyman
rate while employed by Respondent. Mathey testified that
Straka had been employed ^ as an apprentice- Straka
testified without contradiction that at the time he was hired
Mathey told him "not to join the-union because it would
only get, me, screwed, up. Straka did' not inform Mathey
that he had joined the Union until about 2 weeks before
the June 1 strike. At that time. Mathey asked a number of
employees if they were planning to strike. When he was
told - that , they, were--planning to go on strike unless he
signed the union contract Mathey asked, Straka if he had
joined the Union. Straka replied„that he,had. Mathey then
said, that--he had been planning to have Straka work while
the others were on strike.
Straka joined the .strike on June 1 and received a:copy of
Mathey's_ June 24 letter, advising that Straka had terminat-
ed his employiuent,as of.June 1.
Straka 'worked for Omaha ,Neon from, early July until
September 5, Upon his layoff byOmaha Neon Straka went
to- Imperial to talk to- Mathey about a job. Straka testified
that Mathey- asked if, he was still in -,the Union. Straka
replied that, he was, and I,athey,asked-if he was going to
get, out of the Union. Straka ,then asked. Mathey if he
withdrew, from the U nion, andcould show athey that he
was ?getting out, ,what:good would "it do him. ;Mathey
replied that if Straka.dropp-ed out of the Union,he would
talk to Straka,abouta Job. Straka claimed that Mathey told
him to write. a ,,certi`fied or, registered letter to the Union
stating. that he wished to withdraw. Straka wrote out on a
piece of Imperial's stationery a letter reading:
Local Union 752,
,This is a letter,of resignation for the Sign Painters
,Local, Union '752. From this date on (9-10-70),; I am no
longer a member of the union. My dues have expired or
will, have shortly. This is also cause to be dropped from
the,union.,
After, writing out, the letter, Straka asked Respondent's
receptionist to type an envelope with the union address,
which she did, and he then gave her the letter in the
unsealed envelope with the request that she show it to
Mathey before mailing. Straka did not mail the letter.
Straka testified that he made` 'a number of visits to
Imperial. At one point when Straka- asked about a job
Mathey said that he did not think he would be, giving
Straka a job because the paint crew was ' doing a good
enough jcb and that he would have, to fire one of them to
make room for- Straka . Mathey advised Straka to-'"check
back in a couple: of weeks.- A, bout'September, 20 Straka
again , contacted 'Mathey and was told there was nothing
available for--him:, Straka testified that Mathey at no time
told him that there was an opening at Imperial but that he
was -under- the impression that if he withdrew from the
Union-he would definitely get his job back.
Mathey testified that Straka visited the plant 10 to, 15
times starting in August or September- and called Mathey
at home ; as °welh-Straka was told that there- was no opening
for him at Imperial. Mathey claimed that the office
1257
secretary and receptionist heard Straka say that he would
drop out of the Union if he could have his job back.18
Mathey stated that he never , saw -Straka's letter, of
withdrawal from the Union, noting that Straka had worked
-for Imperial- long enough to know that -if he wanted
something to be brought to Mathey 's attention it should
have been given to Mathey's secretary whotook care of his
mail rather than to the receptionist: Mathey testified that
at one point Straka asked for- advice about withdrawing
from the Union. Mathey had answered- that he -did -not
know how this - was to be done but that, he would check
with his attorney if Straka 'wished .- Mathey 'testified that
there was no followup to'this 'offer. - '
As is so often the case determination of the credibility of
witnesses, who, have given conflicting versions of, the same
transaction is` determinative of whether General - Counsel
has sustained his burden of proving ' allegations ' in the
complaint. However, there are certain facts which tend to
tip the balance toward a finding for General Counsel other
than the ,'ultimate" choice between Straka's and Mathey's
versions `of Ithe events . The ithdrawal letter was handwrit-
ten on Imperial's letterhead' and the envetope was typed on
Imperial stationiy Respondent's stationery would not
have been available for the purpose of Straka 's withdrawal
if Respondent was not , at ,least cooperating with Straka in
withdrawing from the Union. Although Mathey claimed
that the receptionist and secretary had heard Straka make
statements about his willingness yto withdraw from the
Union neither was called to corroborate his testimony.
Finally, Straka 'sclaim that , Mathey had , conditioned
consideration , of Straka's, application for, reemployment
upon, withdrawal from the Union was consistent, with
Mathey's repeated efforts to separate the employees from
their collective bargaining , agent. Although