Peninsula Asphalt & Construction Co.

National Labor Relations Board - Board Decisions

Apr 12, 1960

127 N.L.R.B. 136 (N.L.R.B. 1960)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peninsula Asphalt & Construction Company and International
Union of Operating Engineers , Local 324, AFL-CIO and
Harry G. Arnold and George E. Killingbeck and Lawrence
Haines and International Union of Operating Engineers,
Local 324, AFL-CIO, International Hod Carriers , Building
and Common Laborers Union of America , Local 1191, AFL-
CIO, and International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 406. Cases Nos.
7-CA-2397, 7-CA-2438, 7-CA-2442, 7-CA-2445, and 7-CA-2453.
April 12, 1960
DECISION AND ORDER
On Decemebr 31, 1959, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
-and the General Counsel filed exceptions to the Intermediate Report
.and the Respondent filed a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
.at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in these
,cases, and hereby adopts the findings,' conclusions,2 and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Peninsula As-
phalt & Construction Company, Traverse City, Michigan, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively concerning rates of pay,
wages, hours of employment, and other terms and conditions of em-
' The Respondent excepts to credibility resolutions made by the Trial Examiner. How-
ever, we will not overrule a Trial Examiner 's resolutions as to credibility unless a clear
preponderance of all the relevant evidence convinces us that such resolutions were in-
correct. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc.,
91 NLRB 544 , enfd 188 F . 2d 362 (C.A. 3).
In agreeing with the Trial Examiner that Respondent discriminatorily refused to re-
employ complainant Johnson in the spring of 1959, we note that Respondent President
Wysong's statement to Union Business Agent Pattison in February 1959 that he was not
.going to reemploy Johnson was communicated to Johnson.
127 NLRB No. 20.
PENINSULA ASPHALT & CONSTRUCTION COMPANY 137
ployment with International Union of Operating Engineers, Local,
324, AFL-CIO; International Hod Carriers, Building and Common]
Laborers Union of America, Local 1191, AFL-CIO; and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 406, as the exclusive statutory representative of its
employees in the following appropriate unit :
All production and maintenance employees in the Company's paving
and plant operations, exclusive of office clerical employees, watchmen,
and supervisors as defined in the Act.
(b) Discouraging membership in any of the above-named Unions,
or any other labor organization, by refusing to reemploy any of its
employees and/or former employees, or by discriminating in any other
manner in regard to hire or tenure of employment, or any term or con-
dition of employment.
(c) Making or effecting any changes in rates of pay, wages, hours,.
or other terms or conditions of employment of its employees in the
appropriate unit without giving notice and consulting with the
aforesaid Unions as the exclusive bargaining representative of its-
employees.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,,
join, or assist any labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual,
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8(a) (3) of the Act, as modified by the.
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the aforesaid Unions
as the exclusive statutory representative of the employees in the above-
described appropriate unit, and embody in a signed agreement any-
understanding reached.
(b) Offer to John R. Harrand, Lawrence Haines, Paul Johnson,
Harry G. Arnold, and George E. Killingbeck immediate and full
reinstatement to their former or substantially equivalent positions,.
consistent with the Respondent's seasonal operations, without preju-
dice to their seniority or their other rights and privileges, in the man-
ner set forth in the section of the Intermediate Report entitled "The-
Remedy."
(c) Make whole John R. Harrand, Lawrence Haines, Paul Johnson,
Harry G. Arnold, and George E. Killingbeck for any loss of pay they
may have suffered by reason of the discrimination against them in the-
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
records necessary to analyze the amounts of backpay and the rights
of employment under the terms of this Order.
(e) Post at its plant in Traverse City, Michigan, copies of the
notice attached hereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO 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 :
WE WILL NOT discourage membership in International Union
of Operating Engineers, Local 324, AFL-CIO, International Hod
Carriers, Building and Common Laborers Union of America,
Local 1191, AFL-CIO, and International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local
406, or in any other labor organization, by refusing to reemploy
any of our employees and/or former employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of
employment, or any other term or condition of employment.
WE WILL bargain collectively, upon request, with the above-
named Unions as the exclusive bargaining representative of all
the employees in the bargaining unit described herein, and if an
understanding is reached, embody such understanding in a signed
-agreement. The bargaining unit is:
PENINSULA ASPHALT & CONSTRUCTION COMPANY 139
All production and maintenance employees in our paving
and plant operations, exclusive of office clerical employees,
watchmen, and supervisors as defined in the Act.
WE WILL NOT make or effect any change in rates of pay, wages,
hours, or other terms or conditions of employment of our em-
ployees in the appropriate unit without giving notice and con-
sulting with the above-named Unions.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent po-
sitions, consistent with our seasonal operations, without prejudice
to their seniority or to their other rights and privileges:
John R. Harrand Paul Johnson
Lawrence Haines Harry G. Arnold
George E. Killingbeck
WE WILL make whole each of the above-named employees for
any loss of pay they may have suffered as a result of the discrimi-
nation against them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist any of the
above-named Unions, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in 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
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain or refrain from
becoming or remaining members of the above-named Unions or any
other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any labor organization.
PENINSULA ASPHALT & CONSTRUCTION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed by the above-named Unions and individuals, thee
General Counsel of the National Labor Relations Board, through the Regional
Director for the Seventh Region (Detroit, Michigan), issued an order consolidating
the cases and issued a complaint dated July 31, 1959, against the above-named Re-
spondent alleging that the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1)(3), and (5) of the Labor Management
Relations Act. In its answer, as amended, the Respondent admits certain allega-
tions of the complaint but denies the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Traverse City, Michigan, on October 13 and'
14, 1959, before the duly designated Trial Examiner. The parties through their
counsel or representatives were afforded opportunity to adduce evidence, to examine
and cross-examine witnesses, to present oral argument, and to file briefs. The Gen-
eral Counsel and counsel for the Respondent submitted briefs which I have fully,
considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent , a Michigan corporation, maintains its principal office and place of
business in Traverse City, Michigan, where it is engaged in the business of paving
and surfacing roads in the State of Michigan and supplying materials for such
operations . In the course of its operations the Respondent performs and has
continuously performed over a long period of time, substantial quantities of work
on State and county highways within the State of Michigan which are constructed
with Federal funds and/or constitute links in the National Highway System. During
1957 and 1958, the annual value of services performed by the Respondent on State
highways and on county roads exceeded $100,000 in each category. The Respondent
does not contest jurisdiction. I find the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
I find each of the above-named Unions is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues are: (1) Was the Company relieved of its statutory obligation to bar-
gain collectively with the Unions within the year following their certification by
the Michigan Labor Mediation Board because a majority of the employees notified
the Company, by means of a petition, that they no longer desired the Unions to
represent them .(2) did the Company discriminatorily discharge and/or fail and
refuse to recall, reemploy, or reinstate five of its employees; and (3) did the Com-
pany unlawfully grant unilateral wage increases to employees in the bargaining unit.
B. The Company's operations; organizational activities
Max L. Wysong, company president, was, and is, responsible for all operations
of the Company as well as its labor policy. In general, the Company maintains
its own plant for producing asphalt mixtures, has its own equipment, such as trucks,
bulldozers, and pavers, and performs all services necessary and incidental to asphalt
construction work. The Company's operations are seasonal, depending upon weather
conditions, and ordinarily the work season runs from about April to November. The
Company normally employs from 15 to 25 men and it has been the practice of the
Company to lay off or terminate all employees at the end of the season, except
foremen, and to rehire the men the following spring.
It is undisputed, as related by employees Donald A. Kaspar, George E. Killing-
beck, James R. Harrand, and Paul Johnson, that some 14 employees attended a
union meeting about September 23, 1958, in Cadillac, Michigan, which was con-
ducted by Richard Pattison, business agent for Local 324, and all or practically all
PENINSULA ASPHALT & CONSTRUCTION COMPANY 141
the men , except Kasper, signed union cards.' The same day, or the next day, Kaspar
informed Roydon Engle, plant foreman, of the meeting and the fact that practically
all of the employees, himself excluded, had signed union cards. Engle, a few hours
later, telephoned this information to Wysong, who said he would come over to the
plant. Wysong arrived at the plant in an hour or so, but Engle had no conversation
with him.
The day following the union meeting Wysong spoke to the crew working on the
Pure Oil job in Cadillac. Wysong, according to Harrand and Johnson, told the men
he knew they had held a meeting, that they had joined the union, and asked what
they expected to gain by joining. Killingbeck stated that a day or so after the union
meeting, Wysong held a meeting of all the workers (he did not give the number)
in a trailer at Cadillac. In substance, Wysong inquired why the men wanted a union
instead of going along with him, mentioned his poor financial condition, and asked
if they had any gripes. Harry G. Arnold stated he and other employees were being
shorted in their pay and that they were afraid of Wysong. Hank Cebula also brought
up the subject of short pay. Wysong promised to straighten out the pay shortage.
The meeting then ended.
The day after the trailer meeting Johnson was working on a highway project near
Cadillac when Wysong drove to the job and called him over to his car. Wysong
said he heard Johnson had joined the union, which Johnson admitted. Wysong then
stated, "If the union gets in-You, Slim [Lawrence Haines] and Jim [Harrand]
will be the first to go." Johnson asked the reasons therefor and Wysong answered,
"You guys are the oldest men here and have the most senority and therefore you
have the most to gain by it." Johnson inquired why Wysong believed he was the
ringleader and Wysong said because he was the oldest man. Johnson rode back to
the plant with Wysong and during the trip Wysong asked Johnson what he would
gain by joining the union and if he had any complaints. Johnson answered that the
men expected to gain benefits by joining the union and the only complaint he had
was the shortage in pay.
Wysong testified that after he heard the employees were interested in a union
he called a meeting of the men for the purpose of finding out why they desired
organization and where he had failed them in conducting the business. Johnson
,and Cebula complained about pay shortages and Edgar Gokey, apparently, said they
did not want to break the Company but wanted the situation straightened out.
Wysong asked why the men had not brought the pay shortage to his attention and
Arnold stated that the men were afraid of him. Wysong said he was sorry they felt
that way and if they had come to him, he would have adjusted the pay shortage.
Although Wysong did not fix the approximate time or place of the meeting, it is
obvious he was testifying in regard to the so-called trailer meeting. Wysong could
not recall any other conversations with the employees either collectively or indi-
vidually concerning their union activities or membership, or working conditions.
Wysong was not questioned on the conversation Johnson said he had with him the
day after the trailer meeting, set forth above.
C. The State Board proceedings
Wysong testified that sometime around September 14, 1958, Pattison called upon
him and, seemingly, requested recognition, or as Wysong put it, Pattison "wanted to
negotiate with me about labor relations." The record fails to disclose the substance
of the meeting, other than that Pattison's request was obviously rejected.
In any event, on October 8, 1958, the Company and the three Unions, Local 324,
Local 406. and Local 1191, signed an agreement for a consent election, the election
to be conducted under the supervision of the Michigan Labor Mediation Board on
October 14, 1958, for the purpose of determining whether the employees desired to
be represented by the Unions for the purpose of collective bargaining. The parties,
instead of specifically describing the unit in the agreement, attached thereto, as part
of the agreement, a list containing the names of 17 employees eligible to vote in the
election. Of the 17 employees, 15 appeared as witnesses at this hearing (Donald
Rongey and Bert Towbridge did not appear) and from their testimony I am satisfied
all were employed in production or maintenance work. Again, the payroll records
of the Company, which set forth the names, job classifications, and rates of all
employees for the period October 1, 1958, to October 1, 1959, conclusively show
that the 17 men were employed as production or maintenance employees at the time
'From the record it is clear that the employees signed authorization cards for the
Union exercising jurisdiction over his particular job classification. It is also clear that
many of the witnesses simply referred to the Unions as the Union.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in question. Moreover, the Company does not raise any question concerning the
unit or in any manner challenge the validity of the State Board proceedings. Under
the circumstances, I conclude that the parties were fully aware of the fact that the
election was to be conducted among employees employed in a production and main-
tenance unit and that the election was in fact conducted on that basis. I therefore
find a unit of production and maintenance employees, with the usual exclusions, as
alleged in the complaint, to be appropriate for the purpose of collective bargaining.
The election was held as scheduled and the tally of ballots showed that 10 em-
ployees voted in favor of the Unions, 6 against, with 1 challenged ballot.
On October 24, the State Board issued its certification showing the result of the
election.
D. The refusal to bargain
On the day of the election Pattison and James Kelly, a representative of Teamsters,
Local 406, met Wysong at the plant. Pattison stated he had reports that Wysong
had threatened to lay off some of the employees if the Unions were successful in the
election. Wysong denied making any such threats and said all the employees were
"good men, and he had every intention of keeping every one of them," except Cebula
who was discharged the previous day.2
There is little, if any, dispute between Pattison and Wysong as to their bargaining
positions, other than Wysong was vague as to dates and details of meetings and
conversations.
After the results of the election became known, Pattison, Kelly, and Wysong gen-
erally discussed the subject of an agreement with the Unions. Wysong said he would
sign an agreement, but he was undecided whether he would sign a separate contract
or join the Michigan Road Builders Association, Labor Relations Division, and be
covered by their contract or contracts with the Unions. Pattison stated it made no,
difference since Association and individual contracts were the same. Wysong wanted
time to consider the matter, which was satisfactory to Pattison. Pattison then gave
Wysong a copy of the Unions' short-term contract. The parties did not discuss the
Unions' pay rates for the reason, as stated by Pattison, that the rates were the same
as those required under the Bacon-Davis Act and Wysong knew the rates as he
performed Federal work covered by the Act. The meeting ended with Pattison
agreeing to call Wysong in about a week.
About October 23, Pattison called Wysong who said he had written the Association.
but had received no reply and to contact him later.
About December 17, Pattison contacted Wysong and Wysong again stated he had
not heard from the Association and to call him in February.
About February 25, 1959, Pattison met with Wysong at which time Wysong said
he would not sign an agreement until the men were called back to work. Pattison
asked the reason for his action and Wysong replied he was doing some things the
Unions would not accept, namely, he was not going to recall or employ Harrand and
Johnson. Pattison asserted he was acting in a vengeful manner, which Wysong.
denied, and that he should reconsider his decision. Wysong said he had already
notified, or would notify, Harrand and Johnson of his decision not to employ them.
Wysong asked Pattison to call him April 1, when they would make an appointment to
sign the contract.
On April 1, Pattison telephoned Wysong and Wysong said the Company was not
doing much at that time and to call him on April 15.
About April 16, Pattison went to the plant but Wysong was out of town.
About April 28, Johnson called Pattison to inform him that a petition had been,
circulated among the employees at the plant that day.
About April 30, Pattison telephoned Wysong who stated that a matter had come
up which affected his contractual obligations with the Unions and suggested Pattison
meet with him on May 7.
On May 7, Pattison and Kelly met with Wysong at his office. Pattison stated he
had waited long enough and that he wanted a contract. Wysong answered he had
proof the employees no longer wanted the Unions and refused to discuss or sign an,
agreement. Pattison said he knew of the petition and there followed some discussion
on the legality of the petition and the State Board certification. Wysong stated he
would consult an attorney regarding these legal questions. The meeting then ended.
About a week later Kelly met or talked with Wysong but there was no change in
Wysong's position. There were no further discussions or meetings between the-
parties.
2 Cebula was discharged because of his rough handling of trucks His discharge is not
an issue in the case.
PENINSULA ASPHALT & CONSTRUCTION COMPANY 143
Wysong stated he had meetings and conversations with Pattison at various times,
the dates of which he could not recall , in the period from the fall of 1958 to the spring
of 1959. In substance Wysong testified he wrote the Association but did not receive
any information from it until the spring of 1959. During the above period Wysong
stated, "I don't think that at any time that there was any doubt in his mind [Pattison]
or my mind but what we were going to enter into an agreement ." While Pattison
was anxious to have the agreement signed , Wysong told him, "There is really no,
hurry because I won't be rehiring until next spring, but before we go to work we will
be sure and have a contract, I will live up to my agreement that I would sign a con-
tract with them ." Wysong did not change his position until he found a petition on
his desk signed by 12 employees stating they were no longer members of the Unions.
Wysong could not remember the date he received the petition , but there is no doubt
it was placed on his desk in the last part of April although the approximate date was
not established . After receipt of the petition , Wysong told Pattison and Kelly, obvi-
ously at the meeting of May 7, that he could not sign a contract against the wishes
of his men , but they were free to sign up any employees who might want to join the
Unions.
The Petition
The petition was prepared by Allen, Donald Kaspar , and Claude Greenman one
Sunday morning in April. The petition was addressed to Wysong and, after an
introductory paragraph on the exercise of constitutional rights, states , "We do not
wish to become members of the union , instead we wish to remain free and active as
we presently are." After signing the petition , Kaspar, about 2 days later , presented
the petition to the employees during lunch hour and asked them to sign up if they
approved the petition . Allen then placed the petition on Wysong 's desk. The peti-
tion contains the signatures of 12 employees all of whom except Kaspar had previously
signed union cards.3
Employee Emery Savage, a witness for the Company , testified that the petition was
circulated at the plant around the end of April. During the morning of that day
Wysong assembled some of the men and announced he was granting pay increases
effective the following week. That afternoon Allen and Kaspar told the men that
since Wysong was giving them a raise there was no need for bringing in the union
and paying dues and initiation fees and they should sign the petition . Savage had
previously signed a union authorization card and refused to sign the petition. He
and other employees received pay increases in the next week or so.
E. The wage increases
On May 9, 1959, Wysong conceded that pay increases were given to 10 employees,
all of whom were included in the bargaining unit, without notice to or discussion
with the Unions.
F. The termination of or refusal to reemploy five employees
The complaint alleges that the Company discriminatorily terminated or refused
to reemploy five employees in April 1959. The answer generally denies the allega-
tion and the Company, in essence, contends it had no knowledge of the discriminatees'
union membership or activities and that they were terminated or refused reemploy-
ment for good cause . The evidence with respect to these individuals is as follows:
Harrand began working for the Company in 1954 and was continuously employed
each season through December 6, 1958. He was employed as a laborer-operator
and ran a motor grader and distributor. A few days after the trailer meeting,
Wysong asked Harrand what he expected to gain by joining the Union and he replied
8 The General Counsel contends that Allen was employed in a supervisory capacity and,
therefore , the Company was responsible for his activities in connection with the petition.
Allen admitted that at times in 1958 and 1959 he acted as foreman on various jobs. He
worked directly under Wysong , was responsible for the proper and timely completion of
the work , issued instructions to the men, and on one occasion hired employees, apparently
at the jobsite, for that particular job According to the Company's payroll records Allen
was employed as a laborer-operator on an hourly rate and, seemingly, did not receive
extra pay while acting as foreman . From the record it is plain Allen signed a union card,
although he was not examined on that point His name was also on the list of eligible
voters and he voted in the election , without challenge . Considering the type of work per-
formed by the Company and the necessity of having someone in charge of its crews
operating in the field , I find Allen at times was simply a working foreman and not a
supervisory employee as that term is defined in Section 2(11) of the Act.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it might bring some results. Harrand was ordinarily among the first group of men
to be reemployed, so around April 1, 1959, he talked to Wysong about going to
work. Wysong said he decided not to hire him and when Harrand asked for the
reason, Wysong stated his work was not satisfactory and that he had reports from
the foreman, some of which were good and some bad. Harrand was not reemployed.
Wysong told Harrand he would not be reemployed because Foreman Alpers had
complained of his work. When Harrand asked if Wysong would give him a recom-
mendation for another job Wysong stated, "As far as ability I would, but as for
your attitude right now, no."
Alpers said Harrand ran the grader most of the time, and during 1958, whenever
Harrand was needed he would be down the road talking to the truckdrivers and he
would have to "holder" to get him. This happened about six times during 1958,
commencing in the spring, and each time Alpers informed Wysong of the incident.
Harrand, on rebuttal, stated when he was running the grader or the distributor
he would work ahead of the paving crew, sometimes as much as a couple of miles.'
Harrand denied Alpers ever complained about his work or being unable to find him.
Haines was initially employed in 1955 as a laborer, and later became a truck-
,driver and worked all seasons through 1958. In the early part of April 1959, Haines,
as in previous years, went to the plant and spoke to Wysong about going to work.
Wysong stated, "We decided not to hire you back." Haines said he might as well
look for another job and left.
Wysong stated Haines was not reemployed because he was rough on equipment.
He cited one instance when Haines was told to take the truck home or keep it run-
ning and he kept it running for the remainder of the job. Wysong pointed out he
had complaints from the garage servicing the trucks that all trucks were always dry
.of grease when brought in
Haines, on rebuttal, testified he was given the truck which had been driven by
•Cebula (who had been., discharged because of his rough handling of equipment),
and that he informed the plant foreman the truck was in bad condition. The
foreman told him they would have to use the truck for the rest of the year Haines
had the truck greased and oil changed regularly and received no complaints con-
cerning the manner in which he maintained the truck.
Johnson was first employed in 1952 and worked every season until October 20,
1958. In 1958, Johnson did general work, ran the paver and the roller, and at times
acted as working foreman on small jobs. In 1958, he was paid 10 cents an hour
more than comparable employees for the reason, as given by Wysong, that he was
the oldest man in point of service. As set forth above, Wysong told Johnson, about
September 24, that if the Union got in Johnson, Harrand, and Haines would be the
first to go. Around October 29, 1958, Johnson was working on a small job which
!Allen was running and he asked Allen if he could be laid off. Johnson made the
request because Allen, rather than Johnson, was put in charge of the job, which
indicated the Company was going to get rid of him, and the season was nearly over.
Allen told Johnson he had spoken to Wysong and he could be laid off when the job
was completed that same evening. In the spring of 1959, Johnson talked to Arnold,
Harrand, and Haines 'and found out they had not been reemployed. In view of the
Company's refusal to reemploy these men and the prior statement by Wysong that
Johnson would be the first to go if the Union came in, Johnson did not apply for
work in April 1959. In prior years Johnson, who was usually reemployed in a
group of late recalls, spoke to Wysong or Alpers about work and they would tell
him when to report. Around the last of April 1959, the insurance agency notified
Johnson his health and accident policy was being canceled.
Wysong granted Johnson's request for layoff and he was actually laid off October
24 Wysong called Johnson "an instigator of little things," such as the boss is
going to do this or that, which agitated the men, and a couple of times he failed to
do the right thing by Foreman Alpers In previous years Johnson would come to
the plant and request work but he did not do so in 1959. However, Wvsong ad-
mitted he would not have reemployed Johnson even if he had applied for work.
Johnson, on rebuttal, admitted he spoke to the men about the Union but denied he
ever stirred up the employees or ever made any promises or predictions to the men
as to what the Company might or might not do. He denied Alpers had ever criticized
his work, on the contrary Alpers recommended him for a pay raise, which was
granted.
Employee George Broad, on surrebuttal, testified Johnson stirred up the men by
telling them in the fall of 1957 that the Company was going to give them snow
-tires as a Christmas present or bonus
Arnold'was first employed by the Company as a truckdriver in the spring of 1957
and worked until about November 1957, when he was laid off. In April 1958,
PENINSULA ASPHALT & CONSTRUCTION COMPANY 145
Wysong telephoned him to report for work, which he did immediately, and he con-
tinued to work until about November 16, 1958. Around the latter date work was
slow; Arnold had not worked for 1 or 2 days, so believing it time for the seasonal
layoff he informed the timekeeper that if he was needed to call him and he would
come in. Arnold drew unemployment compensation during the period of his layoffs
in 1957 and 1958. About the middle of April 1959, Arnold went to the plant and
asked Wysong for his job. Wysong said he had no job for him and Arnold remarked
it was on account of the Union. Wysong stated Arnold was not being reemployed
because (1) he was always griping about being short in his wages ; (2) he would let
other company trucks pass him to avoid getting the last load; and (3) on one
occasion at Wiedman, Michigan, he had clutch trouble and while the truck was
being repaired he had refused to do shovel work for Foreman Carl Alpers. Arnold
denied these accusations and requested Alpers be called in to clarify the truck
incident. Alpers was called in but could not remember the affair. The conversation
ended with Wysong telling Arnold to think it over and come back the next week.
Arnold went to the office the following week and was informed by the timekeeper
that Wysong was busy and he did not know when he could see him. Arnold told
the timekeeper if Wysong wanted him to return to work to call him at his home.
Arnold did not hear from Wysong and was not reemployed
Wysong stated Arnold became upset when he refused to rehire him and declared
he was being refused reemployment because of the Union. Wysong denied that
was the reason and told him he was not being rehired because of the truck incident
and his avoidance of loads, described above. Alpers then came in and after some
discussion Wysong said if he was in error to forget it and "just let it go." As Arnold
was angry Wysong asked him to go home, cool off, and come back later. Wysong
gave the following version of Arnold's second visit to the plant:
I saw MT. Arnold's car drive up and I think it parked' on the scales, if I am
not mistaken. I saw it out the window of my office, and I was busy and the
thought didn't come to be about it again for I would say a week, in other words,
that his car had driven up there. It was never told to me that he had been there.
I forgot it. The source of my information that he was there came from an
outside source, and I said that I had remembered-they told me, I remembered
seeing his car drive up, and then when I thought of it 1 thought he just couldn't
wait to see me.
Both Alpers and Wysong admitted the truck incident was meaningless and nothing
more than a complete misunderstanding 4 and Wysong conceded he had little or no
proof Arnold was parking on the road to avoid getting the last load. Wysong never
contacted Arnold and concluded his testimony concerning Arnold by stating:
As I stated before, Harry Arnold did an excellent job for us and when I give
him a '53 Ford truck, and the reason eventually that it boiled down to not
rehiring him was merely that we had had this misunderstanding and there was
feeling there I could not free myself from, and so I didn't hire him. It had
nothing to do with any union activity or anything else.
Killingbeck was first employed in 1956 as truckdriver and worked the customary
seasonal periods during 1956, 1957, and 1958. Killingbeck stated that the day of
the trailer meeting, Wysong asked Killingbeck if he was not acting foolish going
against him at his age. About a week or so later Wysong showed him the election
notice posted on the bulletin board and told him, "You have a chance to reconsider."
About October 23, 1958, Killingbeck asked Wysong if he was busy, and Wysong
said not too busy, that he was going to lay off some men the next week. Killingbeck
said he was having trouble with his back-he had suffered a back injury in 1956-
and requested that he be laid off and his request was granted. Killingbeck went to
the office several times in the spring of 1959 regarding a job and talked to Esther
R. Myer, Wysong's secretary and bookkeeper, but he did not see Wysong until
April 29. On that date Wysong told him he had no job for him, that he understood
Killingbeck had quit. Killingbeck denied he had quit his job As in prior layoff
periods, Killingbeck drew unemployment compensation and his health and accident
insurance was maintained by the Company. On April 29, his insurance was
canceled.
4 While at Wiedman, Arnold was having clutch trouble so Alpers told him to take the
truck to a garage in 'Clare and have it fixed. Arnold did so, then returned and worked
with the crew One of the men said it was possible the clutch simply needed fluid rather
than an overhaul job. Arnold then went to Clare, had fluid put in the clutch, which was
all that was required, and he had no more trouble with the truck.
560940-61-vol. 127-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wysong testified Killingbeck complained of his back and asked to be laid off
about October 18. As he was about to be laid off anyway , Wysong granted his
request. Sometime in December , Killmgbeck came to the office and told Wysong
he was not returning to work in the spring because he was too old and he was not
going to pay $75 to join the Union. During the spring of 1959, Mrs. Myer informed
Wysong that Killingbeck had been in the office a couple of times and inquired about
buying a truck and hauling for the Company . One day in the spring Killingbeck
came to the plant and asked Wysong for a job. Wysong said he had not planned on
his returning to work, that he had only two trucks operating ( by Emery Savage and
Bert Towbridge ), that the other two trucks were still in the garage , and he had no
job for him. Killingbeck then brought up the subject of buying a truck and hauling
for the Company . Wysong advised him not to do so, but if he did get a truck and
the Company needed one he would hire him. Wysong heard nothing further from
Killingbeck . On cross-examination , Wysong admitted he did not have a full
complement of employees when Killingbeck applied for a job and thereafter he
hired five or six new truckdrivers.5
Mrs. Myer testified that Killingbeck , in the period of his layoff , came to the office
on several occasions in connection with medical insurance claims. Around March
1959, Killingbeck told Mrs. Myer he was not coming back but was considering
buying a truck and hiring out to the Company and asked her to speak to Wysong
about the matter. Mrs. Myer knew the Company hired trucks for hauling asphalt,
but not from its employees , and suggested he take it up with Wysong. Mrs. Myer
also stated Killingbeck in the past had complained of a chronic back injury but on one
of his visits in 1959 he told her his back was much better.
Concluding Findings
The record fully sustains the allegations of the complaint that the Company un-
lawfully refused to bargain with the Unions on and after about December 17, 1958.
It is undisputed and I find that the Unions were duly certified by the Michigan
Labor Mediation Board on October 24, 1958, as the exclusive bargaining repre-
sentative for all the Company 's production and maintenance employees in its paving
and plant operations , exclusive of office clerical employees , watchmen, and super-
visors as defined in Section 2(11) of the Act. It is well established that a repre-
sentative which has been certified on the basis of Board election is entitled to recog-
nition for a reasonable period, ordinarily a year, absent unusual circumstances.6
The Board has held that the "1 -year rule" applies not only to its own certifications
but also to certifications based upon secret -ballot elections properly conducted under
the auspices of responsible State Government agencies .? The validity of the State
Board certification is not challenged by the Company , consequently the Unions by
virtue of the certification were, and are , the exclusive representatives for the
employees in the above -named unit . As a corollary thereto, the Company, was
obliged to grant exclusive recognition to the Unions for a period of 1 year. The
Company, through Wysong , admits it refused to bargain collectively with the Unions
within the certification year but seeks to justify its refusal on the basis of a petition
signed by a majority of the employees in the unit repudiating the Unions as their
bargaining representative . In the Bluefield Produce case, supra, the Board, under
similar facts, held that such a repudiation "is not the type of unusual circumstances
warranting suspension of the 1-year rule." I therefore conclude that the petition
afforded no excuse for the Company 's action. Moreover , although Wysong pro-
fessed his willingness to sign an agreement the uncontested evidence shows that,
despite numerous requests , he delayed and stalled the execution of any agreement
or even meeting with the Unions , from December 1958 to May 1959, when, upon
receipt of the petition , he flatly refused to recognize or negotiate with the Unions
as the exclusive representative of the employees . From the record I find that the
Company, since about December 17, 1958, has failed and refused to bargain with
the Unions in violation of Section 8(a) (5) and ( 1) of the Act.
I further find that the Company violated Section 8(a)(5) and ( 1) of the Act by
unilaterally granting wage increases to 10 employees in the bargaining unit on
5 His testimony and the payroll show that Christian Bekerdt was hired on April 28,
1959 ; Donald Zang on May 9; Donald Fewins on June 8 (terminated August 22 ) ; Robert
Broad, June 15; Bryan Simsa , July 30 , Rodney Simsa , August 3, and Garth Bogart,
September 22.
6RayBrooks v. NLRB, 348US 96
Bluefield Produce & Provisson Company, 117 NLRB 1660 ; Dunkirk Broadcasting
Corporation, et al, 120 NLRB 1588
PENINSULA ASPHALT & CONSTRUCTION COMPANY 147
May 9, 1959, without notifying or consulting with the Unions as the bargaining
representative of all the employees in the unit.8
The remaining issue to be decided is whether the Company discriminatorily ter-
minated or refused to reemploy five of its employees as alleged by the General
Counsel, or whether as asserted by the Company they were discharged or refused
reemployment for good cause . The issue , of course, is a factual one. The record
shows that the Company 's operations were dependent upon weather conditions
and men employed in the paving and plant operations normally worked from about
April to November, when they were laid off. It is equally well established that
the Company made it a practice to rehire or reemploy the laid-off employees when
operations were resumed the following spring. The discriminatees uniformly testi-
fied that during the period of their layoff in 1958-1959, they received unemployment
compensation the same as they had in the past and there is no question but that
their health and accident insurance remained in force, at least until the latter part
of April 1959 . These facts , plus other evidence considered below, refutes the idea
that any of the discriminatees quit or were discharged prior to the commencement
of operations in the spring of 1959.
I find company knowledge of organizational efforts and union membership and
activities on the part of the discriminatees was plainly established by the following
undisputed evidence , detailed above : ( 1) Kaspar, with some 13 other employees,
attended the union meeting held about September 23, 1958, and immediately re-
ported the event to Plant Foreman Engles, as well as the fact that practically all
the employees , except himself , had signed union cards ; ( 2) Engles promptly tele-
phoned this information to Wysong; and (3) within a day or so Wysong held two
meetings of the employees to find out why the men desired unionization and if they
had any complaints . Arnold and Johnson explained they were being shorted in
their pay and were afraid of Wysong. Wysong remarked he was sorry the men
felt that way towards him and promised to adjust the pay shortages.
I further find, on the basis of Johnson's credible and undenied testimony, that
around September 24, 1958, Wysong remarked that Johnson had joined the Union,
which he admitted , and warned him if the Unions got in Johnson , Haines, and
Harrand would be "the first to go." While it is true that Wysong did not carry out
his threat of discharge until the next spring, the reason for the delay was, no doubt,
attributable to the fact that the Unions were not certified until October 24, just a
short time prior to the seasonal layoff of employees . Nor is there any indication
that Wysong changed his attitude towards the discriminatees or the Unions following
the cessation of operations . As Wysong 's threat of discharge was uttered more
than 6 months prior to the filing of charges herein , it may not , under the proviso
to Section 10(b), be considered as evidence to support a finding of unfair labor
practice. However, it is well settled that evidence of this character may be consid-
ered as background to explain ambiguous and equivocal conduct occurring within
the 6-month period Since the reasons given by the Company for its refusal to
reemploy the discriminatees within the 6-month period are untruthful defenses or
pretexts , leaving the real reason for such refusals unexplained by events occurring
within the 6-month period , I find that consideration of the background evidence
for the purpose of seeking an explanation is warranted here.9
Turning to the individuals who were terminated or refused reemployment, I find,
on the basis of the evidence set forth above , as follows:
Harrand had been regularly employed from 1954 through 1958, and was refused
reemployment by Wysong, about April 1, 1959, because Foreman Alpers had
complained of his work . According to Alpers, Harrand was never around when
needed and he had to "holler" to get him. Although Alpers claimed Harrand's
practice began in the spring of 1958, and occurred about six times , which he reported
to Wysong , Alpers never spoke to nor reprimanded Harrand concerning these com-
plaints and Harrand worked the entire season . Harrand's job on the grader or
distributor required him to work ahead of the paving crew and he denied Alpers
ever complained about being unable to find him. Oddly enough, Wysong admitted
he was willing to give Harrand a recommendation as to his work ability but not as
to his attitude I accept Harrand's testimony and find he did not stray away from his
job and that Alpers made no complaints to him in that respect or regarding his work.
I also find that Wysong's refusal to reemploy Harrand by reason of Alpers' com-
plaints was nothing more than a pretext to eliminate a proponent of unionization
and strictly in line with Wysong's earlier warning and threat to get rid of Johnson,
Harrand, and Haines in the event the Unions came into the plant.
8Intracoastal Terminal , Inc., et al , 125 NLRB 359
9 Paramount Cap Manufacturing Company, 119 NLRB 785. Order enfd., 260 F. 2d
109 (C.A. 8). Walton Manufacturing Company, 125 NLRB 485.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haines was employed continuously from 1955 through 1958, and in the early part
of April 1959 was refused reemployment by Wysong, who simply stated he had
decided not to reemploy him. Wysong explained Haines was not reemployed
because he was rough on equipment, although it is not clear whether he actually
gave Haines any reason for his decision. Irrespective of whether he did or did not
give any reason for his action, all Wysong could come up with was one instance
when Haines was told to take his truck home or keep it running, and he kept it
running for the remainder of the season. At the same time Wysong admitted he
received complaints from the garage servicing equipment to the effect that all com-
pany trucks were in poor condition when brought in for service. Haines related
the truck was in bad condition when it was assigned to him and he so advised the
foreman. However, he was instructed to drive the truck for the rest of the year,
which he did, without any complaints regarding his maintenance thereof. As in
Harrand's case, I find Wysong's reason for refusing to reemploy Haines to be
without merit or substance and merely an excuse to eliminate Haines.
Johnson, the oldest employee in point of service, worked regularly from 1952 to
October 1958. In past years Johnson was reemployed in the latter part of April,
shortly after the resumption of limited operations. Johnson did not apply for re-
employment in April 1959, because he knew the Company had declined to reemploy
Harrand, Haines, and Arnold, and Wysong had previously warned him he would
be among the first to go if the Unions came into the plant. Wysong admitted he
would not have reemployed Johnson even if he had applied for work since he was
"an instigator of little things" and a couple of times he failed to "do right" by Fore-
man Alpers. Johnson denied he instigated anything, other than he spoke in favor
of organization, and denied Alpers ever expressed any dissatisfaction with his work.
From these facts d have no difficulty in finding that Wysong's refusal to reemploy
Johnson was motivated solely by a desire to be free of the most active advocate of
organization of the employees. Of course, any application for reemployment by
Johnson under these circumstances would have been futile; indeed the Company
makes no point of his failure to do so.'°
Arnold was employed as a truckdriver during the 1957 season, was reemployed
in April 1958, and laid off the following November. Around the middle of April
1959, Arnold's request for reemployment was refused by Wysong on the grounds
he always griped about short pay, avoided loads, and had a dispute of some kind
with Alpers involving repairs to his truck, all of which was denied by Arnold. Alpers
admitted that the so-called truck incident was simply a complete misunderstanding
between Arnold and himself, while Wysong conceded there was nothing to the
charge that Arnold avoided loads. The only instance of griping occurred when
Arnold brought up the subject of short pay at one of Wysong's early meetings with
the employees. Undoubtedly, Arnold became angry or upset at Wysong's accusa-
tions, which admittedly were baseless, and Wysong concluded their conversation by
telling Arnold "to let it go," to cool off and come back the following week. Arnold
returned to the plant the next week but was informed by the timekeeper that Wysong
was busy and he was not certain when Wysong could see him. Arnold told the
timekeeper if Wysong wanted him to return to work to call him at home; he then
left. Wysong testified he saw Arnold at the plant on the above occasion but he was
too busy to see him, that no one told him Arnold had been there and he forgot
all about it. Wysong wound up by stating, "Arnold did an excellent job for us,"
but he did not reemploy him because "we had had this misunderstanding."
Wysong's testimony of the circumstances under which he refused to reemploy
Arnold is so inconsistent and implausible that it is entitled to little or no weight.
In brief, Wysong denied reemployment to an excellent worker because of a mis-
understanding. On the basis of his own admissions, I find Wysong gave false reasons
to Arnold to avoid reemploying him. Again, when Arnold came to the plant a
second time, at Wysong's request, Wysong neglected to meet with him and there-
after made no effort whatever to contact Arnold. It is sufficient to state that
Wysong's garbled version of Arnold's second trip to the plant and the explanation
for his failure to recall Arnold is simply unbelievable. Having found that Wysong
knew practically all of the employees, including Arnold, had signed union cards
and were engaging in organizational activities, and having found that at the same
time Wysong discriminatorily refused, or was refusing, to reemploy other proponents
of unionization, I am convinced that his refusal to reemploy Arnold was motivated
by the similar unlawful considerations. I so find.
Killingbeck worked regularly each season from 1956 through 1958. Around
October 18 or 23, 1958, Wysong granted Killingbeck's request to be laid off. In
10 Yutana Barge Lines, Inc., 123 NLRB 1073.
PENINSULA ASPHALT & CONSTRUCTION COMPANY 149
the spring of 1959, Killingbeck went to the plant seeking reemployment on several
occasions and while he spoke to Mrs. Myer, he did not see Wysong until about
April 29. Wysong then stated he understood Killingbeck had quit and he had no
job for him. As stated above, Killingbeck drew unemployment compensation in
1958-59, the same as in prior layoff periods , and his insurance was canceled around
April 29. Wysong refused Killingbeck 's request for reemployment in April 1959
for the reason that he had not planned on Killingbeck 's returning to work and he
had no job available for him. Granting that Killingbeck , in December 1958, may
have said he did not intend to return in the spring , his subsequent application for
reemployment clearly proves he changed his mind in that respect . I see nothing
unusual in his action Certainly Wysong knew Killingbeck desired employment and
his refusal to reemploy him on the ground he had no job for him is flatly con-
tradicted by Wysong's own testimony as well as company records . Thus, the evi-
dence shows that a new truckdriver , Eckerdt, was hired on April 28, the day before
Killingbeck 's insurance was canceled , and another new driver , Zang, was hired on
May 9. Accordingly, I find the Company had an available job for Killingbeck at or
about the time he requested reemployment . In view of these findings , I attach no
importance to any inconclusive conversations Killingbeck might have had with Mrs.
Myer or Wysong about renting a truck to the Company, or that Killingbeck may or
may not have had a chronic back condition . For the reasons stated in respect to
the Arnold case, I find Killingbeck was discriminatorily refused reemployment in
April 1959.
From the foregoing findings I further find that the Company's uniform refusal to
reemploy the above -named individuals for pretexted reasons, at the same time it
was refusing to bargain with the certified representative of its employees, was moti-
vated by a desire to remove the discriminatees from its employ and to discourage
employees from becoming or remaining members of the Unions or participating in
organizational activities for the purpose of collective bargaining . By so doing the
Company violated Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(5) and ( 1) of the Act , I shall recommend
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent, by refusing to reemploy John R . Harrand,
Lawrence Haines , Paul Johnson , Harry G. Arnold, and George E. Killingbeck, dis-
criminated against them in respect to their hire and tenure of employment in viola-
tion of Section 8(a)(3) of the Act. I shall , therefore , recommend that the Re-
spondent cease and desist therefrom and from infringing in any other manner upon
the rights guaranteed in Section 7 of the Act . I shall recommend that the Re-
spondent offer to John R. Harrand, Lawrence Haines, Paul Johnson, Harry G.
Arnold, and George E. Killingbeck immediate and full reinstatement to their former
or substantially equivalent positions," consistent with its seasonal operations, with-
out prejudice to their seniority or other rights and privileges . I shall further recom-
mend that the Respondent make whole each of the above -named individuals for
any loss of earnings they may have suffered because of the discrimination against
them, by payment of a sum of money equal to the amount each normally would
have earned as wages from the date of his discrimination to the date of the offer of
reinstatement , less his net earnings during said period, with backpay computed in
the customary manner.12 I shall further recommend that the Board order the
Respondent to preserve and make available to the Board, upon request, payroll and
other records to facilitate the checking of the amount of backpay due and the rights
of reinstatement.
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
12 Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v. N.L R.B.,
311 U S. 7, F W. Woolworth Company, 90 NLRB 289.
150 DECfSIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Peninsula Asphalt & Construction Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Each of the Unions named herein is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees in the Company 's paving and plant
operations, exclusive of office clerical employees , watchmen , and supervisors as
defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. The Unions, by virtue of the certification issued by the Michigan Labor Media-
tion Board, were on October 24, 1958, and at all times thereafter have been, the
exclusive representative of all the employees in the aforesaid appropriate unit for
the purpose of collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively with the Unions as the exclusive bargaining
representative of the employees in the aforesaid appropriate unit , as found above,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
6. By unilaterally granting wage increases to employees in the bargaining unit
without notifying or negotiating with the exclusive representative of the employees,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
7. By refusing to reemploy John R . Harrand , Lawrence Haines, Paul Johnson,
Harry G. Arnold, and George E. Killingbeck ,. the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
8. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced its employees in the exercise of their fights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Norrich Plastics Corp. and Local 517, International Production,
Service & Sales Employees and Norrich Plastics Employees
Union, also known as Collective Bargaining Committee, Party
to the Contract. Case No. 9-CA-6535. April 12, 1960
DECISION AND ORDER
On December 18, 1959, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding 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, and further finding that the Respond-
ent had not engaged in other unfair labor practices alleged in the com-
plaint, all as set forth in the copy of the Intermediate Report-attached
hereto. Thereafter, the General Counsel and Respondent filed ex-
ceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
1127 NLRB No. 25.