May & Bigley, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1969

178 N.L.R.B. 653 (N.L.R.B. 1969)

MAY & BIGLEY, INC. 653
May & Bigley , Inc. and United Brotherhood of
Carpenters and Joiners of America , Carpenters
District Council of Western Pennsylvania,
AFL-CIO. Case 6-CA-4317
September 26, 1969
DECISION AND ORDER
By CHAIRMAN MC'CUi LOCH AND MEMBERS
JENKINS AND ZAGORIA
On April 21. 1969. Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, tinding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's
Decision. Thereafter the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the General Counsel
filed limited exceptions with a brief in support of the
Trial Examiner's Decision.
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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions.' and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner found, and we agree. that
Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge, threatening to
close the plant, and engaging in surveillance. The
Trial Examiner also found, and we agree. that
Respondent violated Section 8(a)(3) of the Act by
discharging employee Alfred Barnes on July 5. 1968,
because of his union activity. We adopt the Trial
Examiner's finding that the credited evidence shows
that Barnes was not drinking on the job as
Respondent contends.2 and his conclusion that
Respondent's contention that Barnes voluntarily quit
was an afterthought.
Contrary to the Trial Examiner, and in agreement
with the General Counsel and Respondent. we find
that Respondent's holiday pay policy required
employees to work both the day before and the day
'These findings and conclusions were based , in part, upon credibility
determinations of the Trial Examiner, to which the R,spondent has
excepted Having caretuliy renewed the record, we conclude that the 'trial
Examiner's credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly, we rind no basis for disturbing
those lindings Standard Drv Wall Products , Inc 91 NLRB 544, enfd 188
E 2d 362 (C A 3)
'in doing so , we find it unnecessary to adopt the Trial Examiner's
lindings with regard to the attitude manifested by the Respondent toward
the drinking habits of Doyle May, a supervisor
after July 4 to qualify for holiday pay . For the
reasons stated below, we find that Respondent
violated Section 8(a)(3) by denying holiday pay for
July 4 and by refusing to allow 12 employees to
work on July 3, as alleged in the complaint.
The credited evidence shows , and the Trial
Examiner found , that Respondent ' s president,
Houseworth . on July 2 went to a union meeting at
Egulf Park and told the employees he would never
recognise the Union but would close the plant
before doing so, and that they were fired and could
pick up their checks in the morning. The employees
on the following morning. July 3. went to the plant
to pick up their paychecks as directed . They were
told by Houseworth ' s secretary that she knew
nothing about their discharge and suggested they
wait for President Houseworth The employees then
returned to the street and waited for Houseworth.
lie arrived and then departed , telling them that the
plant was theirs if they wanted it. Shortly thereafter,
Houseworth returned and told the employees, "I
can't fire you here on the street ," and that they
could go to work if' they wanted . He also said that
he would not tolerate a union .' The employees
decided to leave and seek the aid of the Union.
Ihey were informed by the Union agent that they
could not be discharged for union activity and told
to return to work the next day The employees
returned to work on the next working day. July 5,
but were not paid for July 3 or for the July 4
holiday
These circumstances reveal that President
Houseworth discriminatorily discharged these
employees on July 2 because of their union
adherence and their attendance at a union meeting.
Thereafter, on .luly 3, he clearly indicated that union
adherence was incompatible with employment with
Respondent . While Houseworth offered at that time
to reemploy the employees , he made it clear that
they could not work for him unless they repudiated
the Union. We therefore find that Respondent
violated Section 8 ( a)(3) of the Act when it
discriminatorily discharged these employees on July
2. As the Respondent at no time on July 3 offered
them full and unconditional reinstatement , they are
entitled to backpay for July 3 which they failed to
receive because of Respondent ' s discrimination
against them.'
Furthermore, the employees ' failure to qualify for
the July 4 holiday pay was due solely to
Respondent's unlawful refusal to permit them to
work on July 3 as found above. .Accordingly, we
find that Respondent ' s denial of holiday pay to
them was in violation of Section 8(a)(3) of the Act.
'Employees Donald Carl and Raymond Dixon, upon whom the 'trial
Examiner relied in other material aspects . testified that Houseworth made
this statement Although Houseworth denied this , the Trial Examiner
found that he was not a credible witness. In these circumstances , we credit
the testimony of Carl and Dixon
'Cf Keystone Floors, Inc. d/b/a Keystone Universal Carpet Company,
130NLRB 4
178 NLRB No. 102
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall, therefore, order that these employees also
be reimbursed for July 4, 1968.5
Finally, we adopt the Trial Examiner's finding
that the Union, on and after July 2, when the Union
first demanded and Respondent refused recognition
and bargaining, had been duly designated by a
majority of employees in an appropriate unit to act
as their collective-bargaining agent. In essential
agreement with the Trial Examiner, we find that
Respondent violated Section 8(a)(5) of the Act by
rejecting the Union's recognition and bargaining
demands and engaging in numerous independent
unfair labor practices in its efforts to undermine the
Union's majority. Those unfair labor practices
destroyed the conditions necessary to the holding of
a fair election and are so coercive and pervasive that
they tend to preclude the likelihood that an election
would be a more reliable indication of the
employees' desires than the card majority achieved
before their commission. For these reasons, we
conclude that. in order to protect the statutory
rights and interests of the employees and to remedy
the unfair labor practices committed, it is essential
that the Respondent be ordered to recognize and
bargain with the Union as the statutory
representative of its employees for the purposes of
collective bargaining 6
As requested by the General Counsel, we shall
substitute for the Notice recommended by the Trial
Examiner, a notice expressed in simple and readily
understandable language as set forth in the attached
Appendix.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent
May & Bigley, Inc., Bedford, Pennsylvania, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as amended below.
1. Incorporate in paragraph 2(b) of the Trial
Examiner's Recommended Order, immediately
following the words "July 4, 1968," the following.
"and pay for July 3. 1968 "
2. Substitute the Appendix attached hereto for the
Appendix set forth in the Trial Examiners Decision.
'Member Lagoria does not agree that the evidence establishes that the
discrimmatees were required to repudiate , the Union as a condition of
reinstatement He nevertheless concurs in the award of backpay as, in his
opinion, Houseworth 's statements and conduct on July 3 did not constitute
the unequivocal offer of reinstatement to which the discriminatees were
entitled Laminating Services. Inc . 167 NLRB No 31.
`N L R B v Gissel Packing Compani . 395 U S 575.
'Bilyeu Motor Corp. 161 NLRB 982
APPENDIX
NOTICE ro ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended.
we hereby notify our employees that:
Alter a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we, May & Bigley, Inc.. violated the
National Labor Relations Act, and ordered us to post this
notice. The Act gives all employees these rights
To organize themselves.
To form, join or help unions.
To bargain as a group through a representative
they choose.
To act together for collective bargaining or other
mutual aid or protection.
To refuse to do any or all of these things
WE WILL NOT do anything that interferes with these
rights.
WE wil r. NOT threaten to close the plant because you
join a union
WE Wit 1. NOT threaten to fire you because you join
United Brotherhood of Carpenters and Joiners of
America. District Council of Western Pennsylvania,
AFL-CIO or any union.
We WIT i. NOT spy on your union meetings or union
activities or make you think we are spying on you.
WE WILL NOT fire you, or punish you, or treat you
differently in any way if you join United Brotherhood
of Carpenters and Joiners of America, District Council
of Western Pennsylvania, AFL-CIO or any union
W'EWILLgive these employees the pay they lost for
July 3 and July 4, 1968, and also pay them 6 percent
interest. The names of these employees are: Gary
Stickler, Harry Traynham, Donald Carl, Raymond
Dixon, George Edwards, Ronald Bloom, Milfred
Bookhammer, Raymond Duncan, Alfred Barnes,
Arthur Rugg, Jesse Hafer. and Ross Evans.
As to Alfred Barnes, WE WILL give him,back his job
and seniority, and will make up the pay he lost and also
6 percent interest.
WrwiLLnotify Alfred Barnes if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act. as amended, after discharge
from the Armed Forces.
WE WILL bargain, upon request, with United
Brotherhood of Carpenters and Joiners of America.
District Council of Western Pennsylvania, AFL-CIO,
on wages. hours and conditions of employment, and
any agreement we reach will be put in writing and
signed.
The bargaining unit is:
All regular production and maintenance employees
employed by us at our facility located on Railroad
Street in Bedford, Pennsylvania, excluding all
woodcutters, office clerical employees and guards,
professional employees and supervisors as defined in
the Act.
Dated By
MAY & BIGIJ-Y, INC.
(Employer)
(Representative ) (Title)
MAY & BIGLEY, INC.
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, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 412-644-2977
_IRIAL EXAMINER'S DECISION
S1ATEMENT OF IiIL CASE
ABRAHAM H. MALLER, Trial Examiner: On July 22
1968, United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO, herein called the Union, filed a
charge against May & Bigley, Inc., herein called the
Respondent, and on September 10, and 20, 1968, the
Union filed an amended and second amended charge.
respectively, against the Respondent Upon said charges.
the Regional Director for Region 6 of the National Labor
Relations Board, herein called the Board, on October 16,
1968, issued on behalf of the General Counsel a complaint
against the Respondent, alleging violations of Section
8(a)(1). (3) and (5) of the National Labor Relations Act,
as amended (29 U.S C. Sec. 151. et seq.) herein called the
Act. Briefly, the complaint alleged that the Respondent
interfered with, restrained, and coerced its employees by:
(1) threatening employees with cessation of operations if
they selected the Union as their collective-bargaining
representative, (2) engaged in surveillance of a union
meeting of its employees. (3) interrogating employees in
regard to their union membership, activities, and
sympathies: and (4) threatening employees that they would
be discharged because of their activities on behalf of the
Union.' The complaint further alleged that the
Respondent denied employment and refused to grant
holiday pay to certain employees named therein because
of their activities on behalf of the Union and because they
engaged in concerted activities, and discharged employee
Alfred Barnes, all in violation of Section 8(a)(3) of the
Act. The complaint further alleged that the Respondent
refused to recognize and bargain with the Union,
notwithstanding the fact that the Union had been
designated as the collective-bargaining representative by a
majority of Respondent's employees in an appropriate
unit and notwithstanding the fact that Respondent did not
have a good-faith doubt as to the Union's majority status,
in violation of Section 8(a)(5) of the Act. In its duly filed
answer, Respondent denied the commission of any unfair
labor practices. Affirmatively. Respondent alleged that
Barnes voluntarily terminated his employment.
Pursuant to notice a hearing was held before me at
Bedford, Pennsylvania, on November 6 and 7, 1968 The
General Counsel, the Respondent, and the Charging Party
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument, and to file briefs with me Briefs were filed by
the General Counsel and by the Respondent
Upon consideration of the entire record' and the briefs,
and upon my observation of each of the witnesses, I make
the following:
The last allegation was added as an amendment to the complaint at the
opening of the hearing.
'The General Counsel has tiled a motion to correct the record in certain
particulars therein specified . No opposition to such motion has been filed
FINDINGS OF FACT AND CONC'I LSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
655
The Respondent is. and has been at all times material
herein, a Pennsylvania corporation engaged in the
manufacture of wooden insulator pins at its plants located
in Bedford, Pennsylvania During the 12-month period
immediately preceding the issuance of the complaint,
Respondent shipped goods and material valued in excess
of $50.000 from its Bedford. Pennsylvania, plants directly
to points outside the Commonwealth of Pennsylvania
Accordingly, I find and conclude that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act for the Board
to assert jurisdiction here.
ti. THE LA13OR ORGANIZATION iNVOLNE1)
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania , AFL-CIO, is. and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act
III. IIIL ISSUES
I Whether Respondent engaged in the following
conduct in violation of Section 8(a)(1) of the Act. (a)
threatened employees with cessation of operations if they
selected the Union as their collective-bargaining
representative. (b) engaged in surveillance of a union
meeting of its employees, (c) interrogated employees in
regard to their union membership, activities and/or
sympathies; and (d) threatened employees that they would
be discharged because of their activities on behalf of the
Union
2 Whether Respondent committed the following acts in
violation of Section 8(a)(3) and (1): (a) discharged Barnes
because of his activities on behalf of the Union, and (b)
denied employment to 13 of its employees on July 3 and
denied the same employees holiday pay for July 4 because
of their activities on behalf of the Union.
3. Whether the Respondent refused to recognize and
bargain with the Union in violation of Section 8(a)(5) and
(1).
IV. THE AI IEGED UNFAIR iABOR PRACTICES
A. Sequence of Events
The Union's organizational campaign began on June
13, when Alfred Coughanour, a special business
representative for the Union, appeared at Respondent's
plant and distributed pamphlets and blank authorization
cards to Respondent's employees as they went to work.
Shortly thereafter, a notice was posted on the bulletin
board at Respondent's plant. The notice was signed by
Meairl Houseworth, president and (jointly with his wile)
the owner of all the stock of the Respondent, and stated
that if the Union came into the plant, the Union should
sign the paychecks, because the plant would be closed
The notice remained posted for approximately 2 weeks.'
Upon .onstderation of the motion , it is hereby ordered that such motion be
and it is hereby granted
'The uncontradicted testimony of employees Donald Carl and Alfred
Barnes.
656 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
On June 20, a union meeting was held at Egulf Park, a
public park located about 2 to 3 miles from Respondent's
plant. The meeting was attended by approximately 12 to
15 employees of Respondent. At that meeting,
Coughanour solicited signatures of authorization cards for
the Union.' Fle told the employee, that the cards had it
dual purpose, viz., to authorize the Union to act as the
collective-bargaining representative of the employees and
to obtain a representation election. Coughanour collected
12 authorization cards.
A second union meeting was held after working hours
at 4 30 p m., on July 2 at Egull Park. The meeting was
attended by 14 employees 5 At the meeting, Barnes took
the floor and spoke in favor of the Union As he was
doing so, President Houseworth stationed himself behind a
pavilion. some 50 to 75 feet from the union meeting, and
was observed looking toward the meeting . After about 15
minutes, Houseworth went to his truck and drove up to
the place where the employees were assembled. He got out
of his truck and walked toward the meeting As he did so,
Barnes was still speaking in favor of the Union Union
Representative Coughanour introduced himself to
Ilouseworth and told him that the Union represented a
majority of his employees and requested that Houseworth
recognize and bargain with the Union. President
Houseworth replied that he would never recognize the
Union and that he would close his plant before doing so.
President Houseworth then told the employees that they
were fired and that they could pick up their checks the
following morning He then got into his truck and drove
toward the main road that runs in front of the park
There he stopped and began to write on a pad as he
glanced back toward the meeting He drove back and
forth three or lour times'
On July 3, the Union wrote Respondent a letter in
which it claimed majority status and demanded
recognition. In its letter, the Union offered to prove its
majority status through an impartial card check.
On the morning of July 3, the employees who had
attended the meeting of July 2 (with the exception of Roy
Foor) reported to the plant in order to receive their
paychecks in accordance with President Houseworth's
directions of the day before. They entered the plant office
Some of the employees had mailed in authorization cards to the Union
prior to June 20. but these cards had apparently been misplaced in the
Union' s Pittsburgh oificcs Accordingly, Coughanour asked the employees
who had sent in cards to sign new ones and to date them back to the date
they signed the original cards
`Employees attending the meeting were Gary Stickler, Harry Traynham,
Donald Carl, Raymond Dixon , George Edwards. Ronald Bloom , Milfred
Bookhammer, Raymond Duncan , Alfred Barnes Arthur Rugg, Simon
Hann , Roy Foor, Jesse Hafer , and Ross Evans the last two arrived after
the meeting began
The loregoing is based upon the credited testimony of Coughanour and
of several employees who were present at the meeting President
Houseworth 's version is different He admittedly attended the meeting
because. as he testified, he had heard that there was going to be a meeting
there Ile testified further that he did not recognize any of the employees,
although he knew that they were employees , that there were only seven
employees present and that employees Hafer and Evans came while he was
there He testified that he was between 75 and 100 yards from the meeting,
taking a rest , that he then came closer and watched for about 20 minutes
He then approached to within 50 feet of the meeting and spoke to
Representative Coughanour, that he told Coughanour, "All the guys you
have here can go in and pick up their paycheck the next day it they like
to " Ile then got into his truck and went to Bedford where he had a
"couple of beers " and then went back past Egulf Park on his way to
Charlesville, where he had some business Based upon my observation of
President Houseworth 's demeanor while he was testifying , I find that he
was not a credible witness, and 1 do not credit his testimony
and spoke with Respondent's Secretary Virginia
Winesickle She told them that she knew nothing about
their being discharged and suggested that they wait for
President Houseworth. The employees went back out on
the street and waited for Houseworth. When he arrived,
he went into the office, came out again, got into it truck,
and drove away As he left, he shouted to the employees
that the plant was theirs if they wanted it The employees
then re-entered the office and again spoke with
Winesickle. She suggested that they wait for Houseworth's
return The employees left the office and awaited
Houseworth on the street. When Houseworth returned, he
told them that he could not fire them on the street and
that they could go to work if they so desired. Confused by
Houseworth's contradictory statements, they decided to
leave and to seek the advice of Union Representative
Coughanour Employee Carl telephoned Coughanour who
advised him that President Houseworth could not lawfully
discharge the employed for their union activities and
suggested that they return to work the next day. Carl
disseminated the information to the other employees who
had stayed away from work.
The next day was July 4, and the plant was closed On
July 5, these employees returned to work Sit of the
employees Barnes, Evans, Dixon, Ilafcr, Edwards, and
Carl, found that their timecards were missing The group
went to the office to see President Houseworth He told
them that he considered them to be the ringleaders of the
Union and asked who the spokesman was. No one
answered. llouseworth then produced a hook and quoted
some figures to demonstrate that he was not financially
capable of' recognizing the Union. He told the employees
that he would close the plant before he would recognize
the Union and warned them that he would fire anybody
for joining the Union. He then threw the timecards on the
table and told the employees that they could go hack to
work if they so desired. The six employees returned to
work.
On July 5. the employment of Barnes was terminated.
The General Counsel contends that Barnes was discharged
for union activity. 4hc Respondent contends that Barnes
had been drinking on the job, that he was given the option
of ceasing his drinking or quitting, and that he voluntarily
quit The facts concerning this issue are set forth
separately under the appropriate heading, infra.
On July 8, Union Representative Coughanour called
President Houseworth, repeated his claim of majority
status. and requested recognition. He offered to prove the
Union's majority through an impartial card check.
Houseworth told Coughanour that he would not recognize
the Union and referred hun to Respondent's attorney,
Paul A. Koontz. Coughanour then telephoned Koontz and
offered to prove the Union's majority status through ap
impartial card check. Koontz stated that he doubted the
Union's majority status, and arranged a meeting between
President Houseworth and Coughanour to be held on July
If.
When Coughanour arrived at the Respondent's plant on
July 11, President Ilouseworth came out and told him
that Attorney Koontz had canceled the meeting, but
indicated his willingness to talk to Coughanour.
Coughanour repeated his claim of majority status and
demand for recognition. President IIouseworth rejected
the claim for recognition, stated that he would not bargain
with the Union, and that he would close his plant if the
Union came in.
The next day, Coughanour telephoned Attorney Koontz
and again demanded recognition. Koontz replied that the
MAY & BIGLEY, INC.
Respondent would not recognize the Union voluntarily.
On July 15, the Union received a letter from
Respondent . dated July 12, in response to its letter of July
3. Respondent repeated its doubt as to the Union's
majority , declined the request for recognition, and
suggested that the Union file a representation petition.
B. Concluding Findings
1. Interference, restraint, and coercion
The notice posted by the Respondent in its plant shortly
after the inception of the Union's organizing campaign,
stating that if the Union came into the plant, the plant
would be closed, was a threat in violation of Section
8(a)(l). This threat was orally repeated by President
Houseworth when he came to the union meeting on July
2, and was reiterated on July 5 when he spoke to the six
employees whose timecards he had pulled on the morning
of that day.
President Houseworth engaged in surveillance of the
union meeting of July 2, and gave the employees the
impression of such surveillance. Houseworth admitted that
he knew that there was going to be a union meeting at
Egulf Park, went there and, by his own admission,
watched the meeting for about 20 minutes Even if
Houseworth did not, as he claims, recognize the
employees present at the meeting (a statement which I do
not credit), his uninvited presence at the meeting gave the
employees the impression of surveillance which is violative
of Section 8(a)(1) of the Act. And this impression was
strengthened by his conduct in writing on a pad of paper
after he left the meeting, while glancing back at the
meeting. Houseworth's conduct was clearly violative of
Section 8(a)(1) of the Act, and I so find.
I further find and conclude that President Houseworth
told the employees who attended the union meeting on
July 2 that they were discharged . In addition , on July 5,
he threatened the six employees whose timecards he had
pulled that he would fire anybody for joining the Union.
These statements by President Houseworth were patently
violative of Section 8(a)(1) of the Act and I so find
2. The discharge of Barnes
Barnes went to work for Respondent on May 1. His
employment terminated on July 5. Respondent contends
that Barnes had been drinking on the job and was given
the option of stopping his drinking or quitting his job. and
that Barnes thereupon voluntarily quit. It is
uncontradicted that Barnes was reprimanded only once
while working for the Respondent. This had nothing to do
with drinking on the job and occurred before the start of
the Union's organizational campaign.
Barnes was one of the most active union adherents
among Respondent's employees. He signed an
authorization card for the Union on June 13. He also
spoke in favor of the Union to other employees as they
gathered outside of Respondent's plant during the lunch
hour In addition, he solicited employees to sign
authorization cards for the Union Barnes was
instrumental in setting up the union meetings of June 20
and July 2 and urged employees to attend the meetings.
At both of these meeting,,, Barnes spoke in favor of the
Union. and as previously noted, President Houseworth
observed Barnes speaking to the employees at the meeting
of July 2. He was one of the employees who did not
report to work on July 3, in view of President
657
Houseworth's statement that the employees who attended
the meeting of July 2 were fired Also, he was one of the
six employees whose timecards President Houseworth had
pulled on the morning of July 5, and who were told by
Houseworth that he considered them to be ringleaders of
the Union.
While working on July 5, employee Dixon cut his finger
as he was tiling a saw. Barnes volunteered to go to his car
to get some gauze. bandage, and mercurochrome. While
Barnes was at his car, Houseworth approached and asked
him what he was doing. Barnes explained that he wanted
some bandages for Dixon's finger. Houseworth inquired as
to why he had not gone to the office for the materials,
and Barnes explained, "Well, he cut his finger in the
morning and didn't have no bandages then so I went and
got him one." Barnes and Houseworth then returned to the
plant where Houseworth observed that Dixon's finger was
cut
At quitting time on July 5, Barnes noted that his
timecard was missing. He went into the office and asked
Winesickle about this She told him that Houseworth had
informed her that he had discharged Barnes for drinking
on the job and had instructed her to prepare Barnes' final
paychecks'
President Houseworth denied discharging Barnes. He
testified that on July 5, he saw Barnes drinking on the job
and that he told him that he would either have to cease
drinking on the job or quit. He testified further that he
heard nothing about the matter until Monday, July 8,
when Winesickle told him that Barnes had picked up his
check I have heretofore indicated that, based upon his
demeanor while testifying, I did not find Houseworth to
be a credible witness. I do not credit his testimony in this
instance either. Houseworth's testimony was general and
lacking in essential details. Thus, he did not state where in
the plant or what time of the day he had seen Barnes
drinking on the job, or whether he drew this conclusion
from Barnes' behavior. Moreover, the. testimony of several
employees contradicts that of I-Iouseworth. Thus,
employee Dixon whose cut finger was being dressed by
Barnes and who, of necessity, was standing very near to
Barnes while the finger was being bandaged, testified that
he smelled no alcohol on Barnes' breath. Also, employees
Dixon and Carl spoke with Barnes during the day of July
5 and testified that he spoke coherently and that they did
not smell any liquor on his breath. They also testified, as
did employee Edwards, that they saw Barnes performing
his work on a large saw on July 5, that he performed his
work in a normal manner, and that they did not see him
stagger or manifest any of the other indicia of
drunkenness. Barnes, himself, testified credibly that he
had not drunk any alcoholic beverages on July 5. Finally,
Houseworth's testimony was contradicted by Winesickle,
Respondent's secretary, who admitted that Houseworth
had told her that Barnes was fired.
It may also be noted that Respondent has tolerated not
only drinking in the plant, but also extended periods of
drunkenness. Thus, Doyle May, a supervisor, was drinking
in the plant in the early part of 1968, at a time when
President Houseworth was in the plant. May was drunk
for a period of 2 weeks thereafter During that time
President Houseworth attempted to get May to come
back to work. At the end of the 2-week period. May
returned to work and continues to work at Respondent's
'There were two checks . One was for $20, which Barnes endorsed and
returned to Winesickle to repay a loan from Houseworth The other was
for the balance of his pay
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant as a supervisor. He was not disciplined in any way
In view of all the foregoing, I find and conclude that
Barnes did not voluntarily quit his job, but was discharged
because of his activity on behalf of the Union.
Respondent's contention that Barnes was given the choice
of stopping his drinking on the job or quitting and that he
voluntarily quit thereafter is nothing more than an
afterthought, and the antecedent contention that Barnes
was drinking on the job is nothing more than an obvious
pretext.
3. The holiday pay issue
It is undisputed that the employees who did not work
on Jute 3 did not receive holiday pay for July 4. The
General Counsel contends that these employees were
denied holiday pay because they engaged in concerted
activities for the purpose of collective bargaining and
other mutual aid or protection, and in order to discourage
membership in the Union The Respondent contends that
under its preexisting policy, an employee must work the
day before and the day alter a holiday in order to receive
pay for the holiday. It was stipulated that all of the
alleged discrimmatecs worked on July 5.
In support of Respondent's contention, President
Houseworth testified that the plant rule regarding holiday
pay, which required an employee to work the day before
and the day after the holiday in order to be eligible for
holiday pay, was instituted on May 30, and a notice to
that effect was posted in the plant and remained posted
for about I month. Respondent was unable to produce a
copy of the notice referred to When asked what the
notice said. President Ilouscworth replied: "I believe it
said. 'Any employee not working the day before a holiday
or the day alter won't receive holiday pay."' It should be
observed that the notice quoted by President Houseworth
was in the disjunctive. i.e.. "the day before a holiday or
the day after" (emphasis supplied). 'lo make sure that
President Ilouseworth had not inadvertently misquoted
the notice, I put the followin g questions to him:
TRikL L\ vii\ER: Or day alters
Tier, WITNESS, 'I hat's right.
TRI&L FxA\ii\I-R. Or did it say "and day after9"
THE WITNLSS: It said "or day after."
In view of the foregoing, it is clear that under
Respondent's stated policy, an employee was entitled to
holiday pay if he worked either the day before the holiday
or the day after the holiday, but was not required to work
both the day- before and the day after the holiday The
denial of holiday pay to the employees who worked on
July 5, but did not work on July 3 was not, therefore, in
accord with Respondent's policy. In view of Respondent's
antiunion conduct both before and after lulu 3, 1 find and
conclude that Respondent's denial of holiday pay to the
employees who did not work on July 3 was discriminatory
for the purpose of discouraging membership in the Union.
Accordingly, I find and conclude that the Respondent
thereby violated Section 8(a)(3) and (1) of the Act.
4. Respondent's refusal to recognize and bargain with
the union
a The appropriate unit
it was stipulated and I find that the following is an
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
All regular production and maintenance employees
employed by the Employer at its facility located on
Railroad Street in Bedford , Pennsylvania , excluding all
woodcutters , office clerical employees and guards,
professional employees and supervisors as defined in the
Act.
b Membership in the appropriate unit
It was stipulated and I find that on July, 2, there were
29 employees in the appropriate unit Raymond Dixon,
Ken few, Sewell Harbaugh, Russell Smith, Dennis
Ileming. Gary Stickler, Fred Dively, Simon Jack Hann,
Roy Foor, George Edwards, Jacob Herline, Albert Hann,
Ronald Bloom, Virgil Turner, Paul Traynham, Milfred
Bookhammer, Ronald Claybaugh, Earl Cornell, Alfred
Barnes, Donald Carl, James Hann, Jesse Hafer, Russell
Rose, Theodore Fleck, Raymond Duncan. Harry
Traynham, Arthur Rugg, Raymond Drenning, and Ross
Evans. It was further stipulated and I find that on July 3,
Ronald Stcvey became an employee in the unit, and
Simon Bann terminated his employment. On August 10,
Gary Stickler terminated his employment On September
7, Earl Cornell terminated his employment. On September
30, Harry Traynham terminated his employment.
Excluded from the foregoing stipulation as to the
membership in the appropriate unit is the question of the
status of Robert Custer who Respondent claims should be
included in the unit. Custer is the son-in-law of President
Houseworth. He was paid on an hourly basis and acts in
the place of Supervisor Doyle May when the latter is not
working. When acting in place of May, Custer assigns
duties to the employees and supervises their work On one
occasion, Custer did a special work assignment for
Respondent unconnected with bargaining-unit work 'the
General Counsel contends that by virtue of Custer's
relationship to Houseworth he enjoys a special status
which allies his interests with those of management and,
therefore, should not he counted as a member of the
appropriate unit. It is probably unnecessary to decide this
particular issue. inasmuch, as noted infra, Custer's
inclusion in the appropriate unit would not affect the
Union's majority Vera Ladies Belt & Novelty Corp . 156
NLRB 291. 292, fn 2 However, should -a sufficient
number of the Union's authorization cards be found to he
invalid, Custer's inclusion in the unit might become
critical. In Browne and Buford, Engineers and Surveyors.
145 NLRB 765, the Board held that there is nothing in
the .Act requiring the exclusion of sons-in-law. and that
there was no evidence in that case that the son-in-law
enjoyed a special status by virtue of his relationship to a
partner The Board has held that in the case of a
corporate employer "the mere coincidence of a family
relationship between an employee and his employer does
not negate the mutuality of employment interest which an
individual shares with fellow employees, absent evidence
that because of such relationship he enjoys a special status
which allies his interest with those of management"
(International Metal Products C'ompanv. 107 NLRB 65.
67) The Board has recently affirmed this policy in Foam
Rubber Ciiy 2 of Florida, Inc . 167 NLRB No 81 The
evidence in the instant case concerning Custer's duties is
rather meager and does not indicate that he enjoys such
special status as would ally his interest with those of
management Accordingly. I find and conclude that
Custer should be included in the appropriate unit.
MAY & BIGLEY, INC.
c. The demands for recognition
As indicated above, the Union made demands for
recognition on July 2, 3, 8, 11. and 12. On these
occasions, the Union offered to prove its majority status
through an impartial card check The Union has never
withdrawn its demand. Union Representative Coughanour
explained that the Union did not make any express
demands after July 12, because to have done so would
have been futile. The Union tiled its charge in the instant
case on July 22.
d. The Union's malortiv status
The Union demonstrated its majority status by
authorization cards executed by a number of employees in
the appropriate unit.'
The authorization cards read as follows
I hereby authorize the Carpenters District Council of
Western Pennsylvania, U.B. of C. & J. of A. to act as
my exclusive bargaining agent in regards to wages,
hours and working conditions and to petition the
N.L.R B. to hold an election to determine whether or
not a majority of the employees of the below mentioned
Company. wish to be represented by the above
mentioned Union.'
In its brief, Respondent does not attack the card of any
individual signer. Rather, Respondent contends that the
Union was not authorized by a majority of' the employees
to act as their bargaining representative, because "the
authorization card was plain and unambiguous The
signatories simply authorized the Union to petition the
Board for an election ." 10 In support of this contention
Respondent relies upon NL R.B V. Shelby
Manufacturing Company, 390 1-.2d 595 (C.A 6).
Respondent's contention must be rejected. The Shelby
case is distinguishable. The Court there said at page 596
In our opinion these cards were ambiguous. They were
calculated to and did indicate a purpose to secure an
election This is all the more clear from evidence that
the card solicitors did in tact represent to a number of
employees that their purpose was to secure an election.
1-urthermore, it is significant that the Court in .Shelbtt
distinguished "on its facts" N L R B v Winn-Dixie
Stores. Inc., 341 F.2d 750 (C.A. 6), cert. denied 382 U S.
830. in which the same Court held to be valid for majority
purposes a dual-purpose card the language of which was
strikingly similar to the language of the authorization
cards in the instant case."
The Courts of Appeal for the Seventh Circuit and for
the District of Columbia have sustained the validity of
dual-purpose authorization cards N L R B r. CJ.
Glasgow Company, 356 F.2d 476, 478 (C.A 7); N L.R.B
v. Fosdal, 367 F.2d 784, 787 (C A. 7); International
Union. United A , A. & A IMP Wkrs v. ;Y.L.R B., 363
F.2d 702 (C.A D C.), cert denied sub none 4ero Corp v
N L R B , 385 U.S 973.'=
The number of employees who executed these cards is discussed infra:
previously mentioned. Union Representative Coughanour at the
meeting of June 20, told the employees present that the cards had a dual
purpose, viz , to authorize the Union to act as the collective -bargaining
representative of the employees and to obtain a representation election
"Br p 8
""Over the signature and home address of the signer was a statement
that the undersigned employee does 'hereby authorize District Union Local
237, AFL-CIO, to represent me and in my behalf petition the National
Labor Relations Board for an election to determine bargaining rights "'
IN L R B v Winn -Dixie Stores, Inc . supra, 754 )
659
Having concluded that the authorization cards were
valid for the purpose of proving the Union's majority, I
now turn to a consideration of whether a majority of
Respondent's employees had signed such authorization
cards on the dates when the Union made its demands for
recognition. The following employees testified credibly
that they executed authorztation cards at the union
meeting on June 20 and that they gave the cards to Union
Representative Coughanour at that meeting- Donald Carl,
Alfred Barnes, George Edwards, Ronald Bloom, Milfred
Bookhammer , and Raymond Duncan In addition, Ross
Evans testified credibly that he signed a card on June 14
and gave it to Union Representative Coughanour at the
union meeting of June 20 . Raymond Dixon testified
credibly that he signed an authorization card at the union
meeting of June 20 and gave it to Employee Barnes.
Barnes testified credibly that he gave it to Coughanour at
the same meeting. The foregoing cards should be counted
in determining whether the Union had a majority
Union Representative Coughanour testified that Jesse
Hafer gave him a signed authorization card at the union
meeting held on June 20 Employee Donald Carl testified
credibly that Earl Cornell gave him a signed authorization
card at the union meeting held on June 20 and that he,
Carl, gave it to Coughanour at the same meeting. Carl
also testified that he saw Gary Stickler sign his
authorization card at the meeting of June 20, that Stickler
gave him the card and he. in turn, gave it to Coughanour
at the same meeting. Carl also testified that he saw Harry
Travnham sign his card at the union meeting of June 20,
that Traynham gave him the card and that he, in turn,
"In the recent cases of Yazoo Valley Electric Power Association, 163
NLRB No 106. and Kawneer Company. 164 NLRB No 138, the Board
held valid for a majority purposes dual-purpose authorization cards I note
that the Court of Appeals for the Fifth Circuit rclused to enforce the
bargaining portion of the order in the Yazoo Lase, holding the
authorization card to be ambiguous N L R B v Yazoo Valley Electric
Power Association , 405 F 2d 479 It is apparent that the f ifth Circuit is in
disagreement with the Seventh Circuit and with the Court of Appeals for
the District of Columbia In any event , it is my duty as a Trial Examiner
to apply established Board precedent which the Board or the Supreme
Court has not reversed Insurance Agents ' International Union , 119 NLRB
768, 773, Novak Logging Company , 119 NLRB 1573, 1575-1576, Scherrer
and Davisson Logging Company , 119 NLRB 1587, 1589. In this
connection . I do not consider Silver Fleet , Inc . 174 NLRB No 141. to
constitute a departure from the holdings in Yazoo and Kawneer In Silver
Fleet , the authorization card contained the following statement in bold
letters "THIS DOES NOT OBLIGATE ME IN ANY WAY" A
majority of the Board considered this statement as misleading , as it could
imply that by "signing the card, the employee was not doing anything that
he would not have an opportunity to reconsider " Furthermore, in finding
that cards obtained by the Union were insufficient for the purposes of
proving maionty status, the Board said "[wle rely not only on the
language of the card itself, but also on testimony dealing with the
solicitation of the cards "
"It appears that the cards which were executed at the meeting of June
20 were dated "June 13" Union Representative Coughanour testified
credibly that at the June 20 meeting he told the employees that he knew
that many of them had executed cards that he had passed out at the plant
on June 13 and had mailed the Lards to the Union's office He testified
that these cards had been lost by the Union , and that he told the
employees to sign new cards and date them as of the date that they had
executed the cards originally The fact that these cards were executed on a
date different from that which appears thereon does not destroy the
validity of the cards, particularly in light of the credible evidence
establishing the actual date on which each card was signed Henrv Spen &
Company. Inc , 150 NLRB 138, 150 Similarly, the fact that the dates on
some of the cards involved in the instant proceeding may have been filled
in by someone other than the signer does not destroy the validity of the
cards Southland Paint C'ompani Inc , 156 NLRB 22, 43, Henri, Spen &
Company. Ina , supra
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gave it to Coughanour at the same meeting. With regard
to Arthur Rugg. Carl testified that Rugg gave him his
signed authorization card "sometime in June" and that
he. Carl, gave it to Coughanour at the meeting of July 2.
The foregoing cards were properly authenticated and are
valid. Sandy's Stores. Inc, 163 NLRB No. 95, Lifetime
Door Co., 158 NLRB 13, 21; Colson Corporation v.
N.L.R B., 347 F 2d 128, 134 (C.A. 8), cert. denied 382
U.S. 904.
Ronald Claybaugh signed his card in June and gave it
to Employee Dixon on the same day at Claybaugh's
home." Dixon testified that he gave it to Employee Carl
on June 21, and Union Representative Coughanour
testified credibly that he received the card approximately 1
week after the July 2 union meeting. Since Claybaugh
delivered the card to Carl, an employee-representative of
the Union, on June 21, the card may be counted toward
the Union's majority from and after July 2.
Simon Hann testified credibly that he signed an
authorization card on July 2 at the union meeting and
gave it to Coughanour at that meeting The card is valid
and may be counted toward the Union's majority.
Paul Travnham testified credibly that during the month
of June, his son Harry. an employee of the Respondent
and a card signer, came to him after a union meeting and
asked him to sign an authorization card. Paul Traynham
told his son that he was very busy at the time and could
not sign the card then. His son told him that the card was
needed immediately. Paul Traynham then authorized his
son to sign his name, and his son did so in the presence of
Paul Traynham and the latter's wife. Paul Traynham's
authorization card hears a second signature which, he
testified, is his own . He testified further that on August
14, an agent of the Board visited his home in order to
take an affidavit in connection with the investigation of
the instant case. Paul Traynham told the Board agent the
facts outlined above in regard to his son 's signing the
authorization card He offered to sign the card again in
order to "verify the signature." The Board agent told
Traynham that he could sign the card if he so desired.
Traynham chose to do so and put the date, August 14,
1968, under his signature. After Harry Traynham signed
his father's name, he told his father he was going to mail
the card to the Union The reverse side of the
authorization card bears postmarks indicating that it was
mailed on July 3 and was received by the Union in
Pittsburgh on July 8. There is also a time stamp
indicating that the card was received by Region 6 of the
National Labor Relations Board on July 22.
As Paul Traynham explicitly authorized his son to sign
the authorization card and his son did so in his presence,
the card should be counted as valid as of the date of its
execution, viz., June 20. Peterson Brothers, Inc. 144
NLRB 679, 681, enforcement partly denied on other
grounds 342 F.2d 221 (C.A. 5). Lincoln Manufacturing
Co , 160 NLRB 1866, 1876, enfd. 382 F.2d 411 (C.A. 7),
cert. denied 389 U.S. 972
Union Representative Coughanour and Employee
Evans testified credibly that they saw Roy Foor sign an
authorization card at the union meeting of July 2.
Coughanour testified that Foor gave him the card after he
signed it. l-oor testified that he did sign an authorization
card on July 2 and gave it to Coughanour at the meeting.
However, he testified that the authorization card bearing
"There is a slight, unimportant difference between the testimony of
Claybaugh and Dixon as to the date. Dixon testified that he saw
Claybaugh sign his card on June 20
his name which was shown to him at the hearing did not
bear his signature. He admitted that the card which he did
sign bore the same printing as the authorization card
shown to him which was identical with the authorization
cards of the other employees introduced into evidence In
view of his testimony that the authorization card shown to
him at the hearing did not bear his signature, I directed
Foor to sign his name three times on a blank sheet of
paper. I am satisfied from a comparison of his signatures
on the paper and the signature of his name on the
authorization card that the latter is substantially different
from his signatures on the blank sheet. Although I invited
the parties to adduce expert testimony regarding the
signatures. none was offered. There is no explanation in
the record as to why Foor's purported signature on the
authorization card differed from his signature on the
blank sheet of paper. However, the essential fact is that,
according to his own testimony, Foor executed an
authorization card designating the Union as his
collective-bargaining representative and that he gave his
authorization card to Union Representative Coughanour
on that date. Accordingly, I find and conclude that Foor
did, in fact, designate the Union as his
collective-bargaining representative on July 2 and such
designation should be counted in determining the Union's
majority status. Aero Corporation, 149 NLRB 1283,
1291, enfd. 363 F.2d 702 (C.A. D.C.), cert. denied 385
U.S. 973, Crawford Manufacturing Co, 161 NLRB 989.
1023, enfd. in part 386 F.2d 367 (C.A. 4).
The Union continued its campaign even after the tiling
of the complaint and obtained four additional cards. The
facts pertaining to these cards are as follows.
Union Representative Coughanour testified that he saw
Theodore Fleck sign an authorization card on August 26.
at the latter's home and that Fleck then gave the card to
Coughanour Fleck's card is properly authenticated and is
valid and may be counted in determining the Union's
majority status as of that date
Union Representative Coughanodr testified that he saw
Charles R. Drenning sign an authorization card at the
latter's home on August 26 and that Drenning gave him
the card after he signed it. Drenning was called by the
Respondent to explain why he signed the card "Charles R.
Drenning" while he endorses his paychecks "'C. Raymond
Drenning." Drenning explained that he endorses his
checks in that manner because they are made out that
way. He testified that he signed his authorization card
"Charles R. Drenning." His card is valid and may be
counted in determining the Union's majority on August
26.
Ken Tew testified that he signed a card on September
17 and mailed it to the Union. 1 find and conclude that
Tew's authorization card is valid and may be counted in
determining the Union's majority as of that date.
Union Representative Coughanour testified that Virgil
Turner signed an authorization card on August 26, at the
latter's home and that Turner then gave him the card.
Turner was called as a witness by the Respondent. He
admitted that he had signed the authorization card.
However, he testified that when he signed it, he was told
by Coughanour that the card had nothing to do with the
Union and that its purpose was to get a man back to
work. On rebuttal, Coughanour testified that he went to
Turner's home on August 26, introduced himself, and said
that he was a representative of the Carpenters Union He
then went into a detailed explanation of what in his
opinion, the Union could do for the employees of the
Respondent. As part of the explanation, Coughanour told
MAY & BIGLEY, INC.
Turner that the Union was seeking the reinstatement of
Barnes. He explained to Turner that the card had a dual
purpose, tiz, to authorize the Union to represent the
employees of Respondent and to petition the NLRB for
an election. After the explanation, Turner said that he
would sign a card and asked Coughanour to fill it out.
Coughanour did so and, Turner signed it. Coughanour
took the card and left.
I do not credit Turner's testimony To do so, would
require me to believe that Union Representative
Coughanour called at Turner's home and did not even
introduce himself, or tell Turner that he was representing
the Union It would require me to believe that Turner
signed the union authorvation card without reading it,
taking the word of a complete stranger as to the purpose
and effect of the card. Although Turner claimed that he
had some difficulty in reading at the time because he
needed new glasses, it is strange that he did not ask his
wife who was present to read the card to him.
Furthermore, Turner admitted that he had received a
union card from Coughanour in June when the latter
passed out cards to all the employees, read the card, and
knew the purpose thereof. Finally, Turner testified that he
had been "ordered" to go to a union meeting on
November 1, but on cross-examination testified that he
was merely told by certain union members that they
wanted him to go to a union meeting. In sum, I do not
find Turner's testimony to be credible On the other hand,
Union Representative Coughanour impressed me as an
honest, straightforward witness I therefore find and
conclude that Turner's card is t alid and may be counted
to determine the Union's majority status as of the date it
was signed.
To recapitulate, I have set forth below in tabular form
the number of employees in the appropriate unit and the
number of authorvation cards signed on the various dates
involved herein:
Dates Number of Number of
Employees" Authorization
in the Unit cards signed
July 2 30 17i6
July 3-Aug 9 30 16"
Aug. 10-Aug. 25 29 IS'"
Aug. 26-Sept. 6 29 18"
Sept 7-Sept. 16 28 1720
Sept. 17-Sept 29 28 18 21
Sept. 30 27 1722
I have heretofore found that the Union made demands
for recognition on July 2, 3. 8, 11. and 12. but did not
"The figures in this column include Robert Custer
"This number includes all of the cards discussed above except those of
Fleck, Turner. Dreining, and Tew
"As indicated above, card signer Hann terminated his employment on
July 3
"As indicated above, card signer Strickler terminated his employment on
August 10
"Fleck, Turner, and Drenning executed authorization cards on August
26
20 As indicated above, card signer Cornell terminated his employment on
September 7
"Tew executed an authorization card on September 17
22Harry Traynahm terminated his employment on September 30
661
make any specific demands thereafter because of the
obvious futility of doing so. Nevertheless, the Union's
demand was a continuing one. The foregoing discussion
demonstrates quite clearly that on the foregoing dates and
thereafter the Union represented a majority of
Respondent's employees in an appropriate unit.
e. Respondent's alleged good-faith doubt as to the
Union's Majority
It is well settled, of course, that an employer may insist
upon a Board election as proof of a Union's majority, as
Respondent did here, but it is equally well settled that it
may not lawfully refuse to bargain "if its insistence on
such an election is motivated, not by any bona fide doubt
as to the Union's majority, but rather by a rejection of the
collective bargaining principle or by a desire to gain time
within which to undermine the Union" (Joy Silk Mills,
Inc., 85 NLRB 1263, 1264, enfd. 185 F.2d 732
(C A D.C.), cert. denied 341 U.S. 914) Respondent
contends that it had a good-faith doubt as to the Union's
majority. The record compels a contrary finding and
conclusion. Respondent's expressed doubts had no rational
basis in fact. Thus, when asked on cross-examination why
he did not accept the Union's offer of a card check,
President Houseworth simply replied- "I don't know." By
peremptorily rejecting the card check offer, Respondent
"deliberately shut its eyes to the facts. . . and assiduously
avoided giving the Union any opportunity to substantiate
its claims. Such conduct is not indicative of good faith"
(N L.R B. v Philanion Laboratories, Inc , 298 F.2d 176,
180 (C A 2) See also :'V L R B v. George Groh and
Sons, 329 F.2d 265, 269 (C.A. 10); N L.R B. v. Economy
Food Center, Inc , 333 F.2d 468, 472 (C.A. 7), enfg. 142
NLRB 901. Furthermore, from the very inception of the
Union's organizational campaign and continuing after the
Union's original demand for recognition and bargaining,
the Respondent engaged in a series of unfair labor
practices in violation of Section 8(a)(1) and (3), which I
have found above. From this conduct, I find and conclude
that the Respondent never had a good-faith doubt as to
the Union's majority status, but refused to grant the
Union recognition because it rejected the
collective-bargaining principle and wanted time to destroy
the Union's majority I therefore find and conclude that
Respondent's failure and refusal to recognize and bargain
with the Union was a violation of Section 8(a)(5) and (1)
of the Act. Kav Allen Classics, Inc., 152 NLRB 1250,
1251: Mink-Dai'ton, Inc., 166 NLRB No. 79;
Brandenburg Telephone Company, 164 NLRB No. 26.
V. THE EFFEC'I 01' THE UNFAIR LABOR PRACTICFS UPON
COMMERCE
The activities of May & Bigley. Inc.. set forth in
section 1V, above, occurring in connection with the
operations of the Respondent set forth in section 1, above.
have a close, intimate, and substantial relation to trade.
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing-"-
commerce and the free now thereof.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3). and (5) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discharged .Alfred
Barnes because of his activity on behalf of the Union, I
shall recommend that the Respondent be required to offer
him immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights, dismissing if necessary any
employees hired after his discharge. Respondent should
also be required to make him whole for any loss of
earnings he may have suffered because of the
discrimination against him, with backpay computed in the
customary manner 2' I shall further recommend that the
Board order the Respondent to preserve and, upon
request. make available to the Board or its agents payroll
and other records to facilitate the computation of the
backpay due and the right of employment
Having found that the Respondent discriminatorily
denied holiday pay to employees Gary Stickler, Harry
Traynham, Donald Carl. Raymond Dixon , George
Edwards. Ronald Bloom, Milfred Bookhammer,
Raymond Duncan, Alfred Barnes, Arthur Rugg, Jesse
Hafer, and Ross Evans" for the purpose of discouraging
membership in the Union, I shall recommend that the
Respondent be required to make said employees whole for
the loss of holiday pay, with interest thereon at the rate of
6 percent per annum
As the unfair labor practices committed by the
Respondent are of a character striking at the root of
employee rights safeguarded by the Act. 1 shall
recommend that it cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the Respondent its officers, agents.
successors, and assigns. shall
1. Cease and desist from
(a) Discouraging membership in United Brotherhood of
Carpenters and Joiners of America. Carpenters District
Council of Western Pennsylvania, AFL-CIO, or in any
other labor organization of its employees, by discharging
or in any other manner discriminating against employees
in regard to hire and tenure of employment or any term
or condition of employment.
(b) Threatening to close the plant if a majority of the
employees select United Brotherhood of Carpenters and
Joiners of America. Carpenters District Council of
Western Pennsylvania, AFL-CIO, or any other labor
organization of its employees, to represent them.
(c) Threatening to fire its employees it they join United
Brotherhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvania,
AFL-CIO, or any other labor organization
"F W Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating
Co, 138 NLRB 716
"As Simon Hann terminated his employment on July 3, he is not
entitled to holiday pay for Jul,, 4
(d) Engaging in surveillance of the union activities of its
employees. or giving the impression of engaging in
surveillance thereof.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
sell-organization, to form, loin, or assist any labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such right is affected by the proviso to Section 8(a)(3) of
the Act.
(f) Refusing, upon request, to bargain collectively with
United Brotherhood of Carpenters and Joiners of
America, Carpenters District Council of Western
Pennsylvania, AFL-CIO, as the exclusive representative of
all employees in the following appropriate unit.
All regular production and maintenance employees
employed by Respondent at its facility located on
Railroad Street in Bedford, Pennsylvania, excluding all
woodcutters, office clerical employees and guards,
professional employees and supervisors as defined in the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Allred Barnes immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, dismissing if necessary any employees hired
subsequent to his discharge. and make him whole for any
loss lie may have suffered as a result of the Respondent's
discrimination against him in a manner set forth in the
section of the Decision entitled "The Remedy "
(h) Make whole the following employees. Gary Stickler.
harry Traynham, Donald Carl. Raymond Dixon, George
Edwards, Ronald Bloom, Milfred Bookhammer.
Raymond Duncan. Alfred Barnes, Arthur Rugg, Jesse
Haler, and Ross Evans by paying them holiday pay for
,July 4, 1968, with interest thereon at the rate of 6 percent
per annum
(c) Preserve and make available to the Board or its
agents, upon request, for examination and copying. all
records necessary for the determination of the amount of
backpay due.
(d) Notify Alfred Barnes if presently serving in the
Armed Forces of the United States of his right to lull
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(e) Upon request, bargain collectively with United
Brotherhood of Carpenters and Joiners of America,
Carpenters District Council of Western Pennsylvania,
AFL-CIO, as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement
(1) Post at its Bedford. Pennsylvania, plant, copies of
the attached notice marked "Appendix." [ Board's
Appendix substituted for Trial Examiner's I25 Copies of
said notice, on forms provided by the Regional Director
"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
MAY & BIGLEY, INC.
for Region 6. after being duly signed by an authorized
representative of the Respondent, shall he posted by the
Respondent immediately upon receipt thercol, and he
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(g) Notify the Regional Director, in writing, within 20
663
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith."
Appeals Enforcing an Order' shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board.
this prosision shall be modified to read "Notify the Regional Director for
Region 6, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "