Rybolt Heater Co.

National Labor Relations Board - Board Decisions

Jun 13, 1967

165 N.L.R.B. 331 (N.L.R.B. 1967)

RYBOLT HEATER COMPANY 331
Rybolt Heater Company and United
Steelworkers of America , AFL-CIO. Case
8-CA-4401.
June 13,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 12, 1967, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that 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 and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, and the entire record in this
case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
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 and
hereby orders that Respondent, Rybolt Heater
Company, Ashland, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
' As we agree with the Trial Examiner that Respondent violated
Section 8(a)(1) by Plant Superintendent Buzzard's feigned use of a
camera on three occasions to disperse congregating pickets, we
find it unnecessary to make findings with respect to other
instances where a camera was raised and no pictures taken, for
such further findings would not affect the remedy provided
herein
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RAMEY DONOVAN, Trial Examiner: United Steelworkers
of America, AFL-CIO, herein the Union, filed a charge
against Rybolt Heater Company, herein the Company or
Respondent, on October 28, 1966. Under date of
December 12, 1966, a complaint issued, alleging violations
165 NLRB No. 36
of Section 8(a)(1) and (5) of the Act. Hearing was held on
January 31,1967, in Ashland, Ohio, before me.
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation, with its principal
office and place of business in Ashland, Ohio, where it
manufactures and sells heating and air-conditioning units.
At all times material, Respondent, in the course of its
business operations, directly ships goods and products
valued in excess of $50,000 to points outside Ohio.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union has been the certified bargaining
representative of Respondent's production and
maintenance employees since 1941. The last contract
between the parties was for a term from August 1, 1964, to
July 31, 1966. On May 25, 1966, the Union gave notice of
its intent to have the contract terminate as of July 31, 1966,
and requested negotiations for a new contract. During
contract negotiations in the latter part of 1966, the parties
mutually agreed to extend the term of the contract to
August 7, 1966.
The first meeting for contract negotiations in 1966 took
place on June 24. Other meetings were held on July 14, 28,
and 30 and August 6, 13 or 14, and 22.
In negotiations, the Company said that it was unable to
grant a wage increase. At the July 30 meeting, although no
request had been made by the Union for financial data, the
Company presented a document entitled "Report on
Examination For the Year Ended December 31, 1965,"
bearing the name of a firm of certified public accountants.
The document included a balance sheet for 1964 and 1965;
statement of net income for 1964 and 1965; and various
schedules of expenses for the same years. Reeder, the
principal union negotiator, refused to look at the aforesaid
report, saying that the subject was prematture and that
they were still negotiating on noneconomic issues. Reeder,
in earthy terms, which we paraphrase, said that he would
not use the report for toilet paper. At subsequent
meetings, the above report was on the table in view of the
parties but was not perused by Reeder.
At the August 6 meeting the Union made it known that it
would strike on August 8, Monday. The Company, on
August 6, informed the Union that although it was unable
to give a wage increase, it was offering the Union a 5-cent
general wage increase with the other terms of the old
contract unchanged, but for a term of 2 years, expiring in
1968. The Company said that in making the wage increase
offer it was gambling that its business would improve
because of an expanded sales force and new machinery.
Also stated by the Company was the fact the foregoing
proposal was contingent upon the employees continuing to
work and not going on strike on August 8 as scheduled.
All production and maintenance employees, about 32 in
number, went on strike on August 8. The strike was
continuing at the time of the instant hearing. At a meeting
on August 14, the Company made it clear to the Union that
the Company had withdrawn its 5-cent-wage-increase offer
and was offering to agree to the terms of the expired
contract, unchanged, for an additional 2 years. On
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 22, the date of a meeting between the parties at
which a Federal mediator was present, the Company
stated that it was unable to pay any wage increase and
again offered to agree to the terms of the expired contract.
The Company said that its prior offer of a 5-cent wage
increase had been made contingent on there being no
strike; and that the strike which had taken place rendered
the Company even more unable to pay a wage increase in
any contract. The Union rejected the Company's proposal
of a contract with the same terms as those that had existed
under the expired contract.
The Union, through Reeder, wrote to the Company on
September 20, 1966, as follows:
Inasmuch as you have withdrawn your offer of 5 cents
an hour made prior to the strike because of claimed
inability to pay, we are hereby requesting that you
make available to us for examination and study your
books and records so that we might bargain
intelligently on economic matters.... By this request,
we are not conceding in any manner that a 5 cent
increase would be adequate.
Smith, vice president of the Company, testified that no
reply was made to the above letter since it was the
Company's view at that time, and at the hearing, that no
reply was necessary inasmuch as the Union had available
the financial report submitted by the Company on July 30,
1966, supra.
There was a meeting of the parties on October 17 at
which Johns, district director of the Union, and Reeder
represented the Union. The Company presented to Johns
the same financial report, aforementioned, that it had
produced on July 30. Reeder testified that he was not
satisfied on October 17 that the financial report was
adequate since it related only to the year ending
December 31, 1965. He testified that he wanted books and
records that would show the financial condition of the
Company as of approximately the time when, in
August 1966, the Company stated that it was unable to
afford any wage increase.' On October 28, the Union filed
the instant charge.
On November 10, 1966, Reeder telephoned Smith of the
Company. Reeder asked Smith, who had participated in
all the prior meetings as the highest ranking company
official present, whether he would sit down and negotiate
that evening or "at any time." Smith testified that he
replied that the Company was unable to meet with the
Union "due to the fact that they [the Union] had filed
charges" and the matter was in the hands of the
Company's attorney. Smith was then asked:
Q. Is it your position that you are unable to
negotiate as long as the charge is pending? Is that
your position?
A. That is our position ... we would like to see the
end results of the charge.
The Company received a telegram from the Union,
dated November 10, 1966, stating:
DEMANDING IMMEDIATE RESUMPTIONS OF NEGOTIA-
TIONS. ALSO DEMANDING IMMEDIATE PRODUCTION
AND AVAILABILITY OF YOUR BOOKS AND RECORDS RE
INABILITY TO PAY PLEA. IN VIEW OF LENGTH OF
STRIKE, YOUR PROMPT ADVICE IS APPRECIATED.
Reeder also testified that what he wanted was "something to
satisfy us as to whether the Company has the ability to pay the
up-to-date financial position of the Compa.iy to show their ability
or inability to pay "
2 Respondent's counsel also asked the witness the date when
he first saw "a record from-either from your own bookkeeping
The Company replied by telegram on November 15
stating:
UPON YOUR OWN APPLICATION THIS MATTER IS NOW
IN THE HANDS OF NATIONAL LABOR RELATIONS BOARD
No further response had been made by the Company to
the Union's requests.
At the hearing, Smith testified that in the July-
November 1966 period, and, apparently, through at least
December, the Company had no records, other than the
report for the calendar year 1965 submitted to the Union in
July 1966, that would show the financial condition of the
Company."
In the course of cross-examination by the General
Counsel, Smith stated that the Company did have a
bookkeeper who maintained purchase records on a
monthly basis as well as records of accounts receivable,
accounts payable, monthly sales records, payroll records,
fixed overhead, and general entries. Smith testified that in
1966 he knew that the Company was not doing "too well"
because he "looked at general entries" and knew how the
operation was going and knew that sales were off. The
witness testified that "right after the first of the year
[1967]" he saw a financial report for the year 1966. No
effort was made to secure this report for the Union or to
make it available to the Union or to report its contents to
the Union.
Conclusions With Respect to the 8(a)(5) Allegations
It is well established that an employer who asserts in
contract negotiations his economic inability to grant a
wage increase, and, who, upon request by the union
bargaining agent for substantiating evidence in the form of
financial records, fails or refuses to make such evidence
available, has made a material manifestation of lack of
good faith in bargaining as required by Section 8(a)(5) of
the Act.3
Without commending Union Representative Reeder's
choice of language on July 30, it is our opinion that the
legal issue herein involved was fully joined by
Respondent's specific withdrawal on August 14 of its offer
of a 5-cent wage increase and the statement of its position
that it was financially unable to grant any wage increase;
by the Union's refusal to agree to a new 2-year term of the
expired contract without a wage increase, as proposed by
Respondent; and by the Union's written request, on
September 20, citing the Respondent's withdrawal of its 5-
cent wage increase "because of claimed inability to pay,"
that Respondent make available to the Union its books and
records for examination so that the good faith of the
claimed inability to pay could be verified or otherwise.
Respondent relies on the fact that, in and from July
1966, it proffered to the Union a financial statement for the
calendar years 1964 and 1965. While the proffer was
originally made before the issue of a wage increase and the
issue of claimed inability to pay were mutually joined by
the parties and before any union request for economic
substantiation was made, these factors alone are not
determinative. More important is Respondent's failure to
reply to the Union's specific requests on September 20
and November 14, 1966, that books and records be made
operations or from a public accountant that would show your
financial condition during the year 1966 " Smith replied that it
was on January 3, 1966, and that "record" was for the years
1964 and 1965.
'NLRB v Truitt Mfg Co,351US 149
RYBOLT HEATER COMPANY 333
available to the Union to substantiate Respondent's
claimed inability to pay.4 Coupled with the foregoing, we
now turn to the financial statement that Respondent, at
the hearing, asserts constituted compliance with the
Union's request on September 20 and November 14.
In our opinion, a report of the financial status of a
company in the years 1964 and 1965 does not constitute
either a substantiation of, or the making available of
records to substantiate, a claimed inability to grant any
wage increase in August 1966 or thereafter. A company's
economic status in 1 year may be worse, better, or the
same, in any month, quarter, 6-month period, or longer in
the following year. This is particularly true in a highly
developed industrial economy such as our own, operating,
as it does, in a free enterprise environment subject to
many varied and fluctuating factors, tangible and
intangible. Nor does the record satisfy us that Respondent,
in 1966, did not have records that it could have made
available to the Union for the purpose requested. An
accountant's financial statement from the Company for
1966 was neither necessary nor was it requested. If
relevant company records, which the evidence shows were
on hand, had been made available to the Union on request,
under reasonable conditions, the Company would have
demonstrated its good faith. In the absence of a
compendium of the records in the form of a financial
statement by a company auditor, bookkeeper, or
accountant, the Union, if it desired such a statement as a
capsule of the Company's economic condition, could have
had such a financial report prepared by its own accountant
from the records that, in our opinion, the Company was
obliged to make available.
We find that Respondent by failing and refusing to make
available to the Union, on September 20, 1966, and
thereafter, its financial records to support its position that
it could not pay any wage increase, violated Section 8(a)(5)
and (1) of the Act. We further find that Respondent's
failure and refusal to meet with the Union, the certified
bargaining agent, on and after November 15, 1966, for the
purpose of negotiations, constituted a violation of Section
8(a)(5) and (1) of the Act.5
Alleged Surveillance
As we have seen, the strike commenced on August 8,
1966. The Company, thereafter, sought an injunction, and
a hearing on the petition was held on August 13. Whatever
the details of the injunction hearing, no injunction issued.
Subsequently, on September 2, the Company refiled its
petition for an injunction and a hearing was held on
September 21. As far as appears, no injunction issued.
During the strike, the Union customarily picketed
across the street from the front of the plant where the
Company's parking lot was situated. This lot, with a 16-
foot entry driveway, was directly across from the front
'door of the plant. People doing business with the
Company, company officials, and nonstrikers (employees
who went back to work commencing about September 1)
used the parking lot. The Union used about 5 to 10 pickets
and a picket sign stating the name of the Union and that
the plant was on strike. The pickets, usually about five,
walked in a general area, from one end of the parking lot to
the other, including the driveway, and also had some kind
of a picket shack at one end of the lot, outside of which
were a few chairs where the pickets lounged at various
times.
Testimony regarding conduct relating to the strike and
the picketing was given by Reeder, the union
representative; Hockenberry, a picket; Buzzard, the plant
superintendent; and Smith, the Company's vice president.
In some respects , the testimony of the witnesses was
imprecise but we have distilled therefrom what we believe
is an accurate picture of events. Our impression of
Buzzard and Smith, in this connection, was of two
individuals relatively unsophisticated in labor law, but
basically reliable in describing what took place.
On August 15, Buzzard stood in the window of one of the
offices in the plant and took motion pictures of the pickets
across the street. On this same day, there was a delivery
van in the parking lot with a large carton or crate
containing one of the Company's products that had been
placed in the van for delivery elsewhere. When the van left
the Company parking lot, Reeder and Hockenberry got
into Reeder's car. Reeder states that Buzzard took
pictures as Reeder entered his car. Thereafter, the van
proceeded to Mansfield, a nearby town. Reeder and
Hockenberry followed the van in Reeder's car. Reeder
states that he wished to ascertain the destination of the
delivery. Buzzard, in his car, followed Reeder's car as it
followed the van on the highway. As he followed, Buzzard,
with one hand, operated a motion picture camera from
time to time, and took pictures of the scene and the rear of
Reeder's car, including the license plate, as it followed the
van. No untoward incident occurred during the trip
involving the van or the following cars.
On September 1, for the first time since the
commencement of the strike, a few employees went to
work in the plant. Smith took some motion pictures of the
picket line and the pickets from the window of his office
across the street. At the end of the day, the
aforementioned working employees entered a passenger
van in the company parking lot across the plant. Although
the Union denies that it was preventing the van from
leaving the lot, the evidence shows that the van had
stopped near the exit driveway leading from the lot. The
windows of the van were entirely closed and the driver, a
company employee, was sitting with his arms folded on the
wheel. It is our opinion that a picket, probably
Hockenberry, at one point, had one foot resting on the
running board and was asking the employees therein, in
substance, why they were working during the strike.
Various incidents occurred during the episode of the van.
At one point, Hockenberry lay down briefly in front of the
van. Reeder states that Hockenberry was "just clowning
around." At another point, Hockenberry had some folded
papers or a paper bag. Company witnesses state that he
was trying to light the papers as a torch. Hockenberry
states that he was trying to catch some bees in a bag. At
some point Buzzard drove his car into the lot and
apparently hit or grazed one or more pickets near the area
of the van and the parking lot driveway as he drove out of
the lot.6 Reeder testified that before "Buzzard got into the
act," a policeman was on the scene and told the pickets to
let the van leave. The van left. Reeder denies that the
' If Respondent had made available some records or data for
the period from January to August 1966 or thereafter or had
offered to do so , it would have then been incumbent upon the
Union to be more specific if it deemed such data to be inadequate
5 It is well settled that the filing or pending of charges and of
unfair labor practice proceedings does not relieve a respondent of
its obligations under the Act
" Buzzard's car had been parked on the street and he had
finished removing a flat tire and replacing it
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets had at any time prevented the van from leaving. In
any event, Smith was taking some motion pictures at
various times during the parking lot episode involving the
van.
On September 7, Smith observed a number of strikers
in the general area of the plant shortly before some
nonstrikers were to leave the plant. Some of the strikers
were parking their cars across from the driveway where
the nonstrikers would emerge. Police came to the scene.
Nothing occurred. The Company took some pictures
during the foregoing.
Sometime in September, Buzzard testified that one of
their dealers drove up in a truck with his wife and child to
pick up some furnaces at the plant. The pickets were
talking to the dealer and Buzzard came out with an
unloaded camera and pointed it at the scene and the
pickets dispersed.7 On a few other occasions, Buzzard
pretended to take pictures when he observed the pickets
"congregating." It is not entirely clear what Buzzard
meant by "congregating" but we construe it as referring to
incidents when the pickets gathered or grouped together
as in the type of instance described by Buzzard, above,
involving the dealer who drove up to the plant to pick up
some material. We find further confirmation of this
interpretation in Smith's testimony. Smith pretended to
take pictures on an occasion when the pickets were talking
to the driver of a truck delivering material to the plant. The
pickets were endeavoring to persuade the driver not to
make the delivery.
Conclusions
Surveillance is the act of observing and the term
surveillance is commonly used in labor law to describe
illegal observation by an employer of employee union
activity. Thus, a supervisor's presence outside or nearby a
union hall at the time of a union meeting is held to be
illegal observation and surveillance in violation of Section
8(a)(1) of the Act. It is apparent that the supervisor's
presence and observation outside the union hall in the
above situation constitutes interference with the rights of
employees for the simple reason that the supervisor has no
legitimate reason to be present and to be observing what
employees are attending the meeting. Moreover, the union
meeting is of such a nature that it is an activity involving
solely the union and the employees and they can expect to
be free of employer observation while engaging in such
activity.
It is our opinion that picket line activity in front of a
struck plant is a different situation than a union meeting or
other employee-union activity in which the employer can
have no legitimate interest. An employer's observation of a
union meeting , whether he uses his eyes alone or a
camera, constitutes unwarranted and illegal interference.
But we can perceive no reason why an employer may not
observe a picket line and its activity in front of its plant. A
picket line is, by its very nature and intent, a public act
and a public demonstration. Such demonstrations are
meant to be observed and demonstrators generally would
be disappointed if they were not observed and if they did
not attract attention. Since we live in an age when scenes
can be recorded by means other than crude drawings on
the wall of a cave, photographs, still or moving, are not
infrequently made of demonstrations, whether the
picketing is in support of a strike, or civil rights, or
antiwar, or any other subject. Newspapers are among
those who take pictures of picketing and a newspaper
picture is seen by employers, employees, pickets, and the
general public.
Photography in itself cannot be regarded as something
sinister or occult. A photograph simply reflects and
records a scene by viewing the scene through a lens so
that, by means of a light opening, the scene is imprinted on
chemically sensitive paper. The evidentiary weight of a
photograph is, of course, like all other evidence, subject to
scrutiny by reason of its selectivity, the angle of view, the
time taken, and other factors. But the picture itself simply
reflects mechanically and chemically what the observer or
picture taker sees. In the latter part of the 20th century in
the United States, we are well past the tales of explorers in
distant jungles who reported that natives feared to have
their pictures taken and fled into the jungle because the
great chief who flew in an iron bird pointed a magic box at
them that would steal their souls if representatives would
see them. It is a profound illusion to entertain the belief
that an employer and its representatives are not interested
in observing the size, the composition, and the conduct of
a picket line. Whether the employer stands at the door of
its picketed plant or in a window thereof and daily
observes the picketing, his conduct, as far as we are
aware, is not illegal observation, to wit, surveillance. And
the nature of a strike and picketing supports the
legitimacy of observation by the employer who is being
picketed. As Mr. Justice Douglas observed in Bakery and
Pastry Drivers & Helpers, Local 802, IBT v. Wohl, 315
U.S. 769, 776-777, "Picketing by an organized group is
more than free speech, since it involves patrol of a
particular locality and since the very presence of a picket
line may induce action of one kind or another, quite
irrespective of the nature of the ideas which are being
disseminated."
In connection with the foregoing, prudent awareness
and alertness would seem to impel competent
management to be consistently cognizant of the details of
the picketing of its plant, albeit there is no presumption
that the pickets will engage in any illegal conduct A strike
and picketing and their circumstances have at least the
potentiality of giving rise to legal contentions against the
employer, the union, or both. Federal or State court
proceedings or Board proceedings are a possibility.
If the employer may observe the picket line from day to
day, the next question is, may he do so as effectively as
possible and with the normal mechanical aids of our
contemporary society. If the plant official has less than
perfect vision or is nearsighted, it would seem that he
could observe the pickets in front of the plant with the aid
of eyeglasses or resort to binoculars in order to se`e more
clearly the pickets and their picket sign and their conduct
and identity. Nor do we believe that a recording of daily
events in a diary, including the numbers, identity, and
conduct of the pickets, the identity of persons or vehicles
entering or leaving the premises, would have been amiss.
Unaided memory, as the often imprecise testimony in this
r The content of the conversation between the dealer and the
pickets is not shown The pickets were probably attempting to
persuade the dealer from further dealings with the Company
RYBOLT HEATER COMPANY
proceeding illustrates, is something on which reasonably
prudent people should not always rely.8
The evidence persuades us, in part, that the Company
took pictures on some occasions when it thought that
something other than the usual walking or sitting of the
pickets might occur or was about to occur or was
occurring. It was, for instance, not illegal for two union
men, Reeder and picket Hockenberry, to follow a company
van delivering a company product to a nearby town. But
we are unable to conclude that the plant superintendent
could not follow the car that was following its truck. We
believe that the superintendent had a right to observe such
conduct since there is no way that he would have known
what the union car and its occupants would do or would
not do. The driver of the truck probably could see in his
rearview mirror that a car was following him. Who the
occupants were might well have become a disputed point
if the car had tailgated the truck or driven parallel with it
at some point or engaged in other action. The fact that
nothing illegal occurred proves only that fact. The union
people did nothing illegal. We believe the superintendent
had as much right to observe the union car as the latter
had to observe the truck. If the Union took a picture of the
truck because it believed that it would help to establish
that the plant was farming out work or otherwise doing
something that the Union deemed significant, we believe
that the picture would have been simply a photographic
record of what the union people had observed and had a
right to observe. We believe the same is true of the
pictures taken by the superintendent. For one thing, the
latter's pictures showed the license plate of the union car.
Just as there was no way of knowing what would occur
during the following of the truck, there was no way of
knowing whether the ownership or identity of the car
would be admitted or disputed in the event an incident had
occurred. In Board cases, the records not infrequently
reflect efforts to identify unidentified persons or cars in
situations where the Union is contending and endeavoring
to prove illegal conduct by an employer and vice versa.
While the Examiner was prepared to uphold the
Employer's right to observe the picket line and picket line
incidents and to record its observation by means of
photographs, there is substantial evidence that persuades
us that the camera was used not as a means of recording
but as a means and an instrument of interfering with
legitimate picketing activity protected under Section 7 of
the Act. The pictures were not used in either of the
injunction hearings . The initial picture taking commenced
after the first hearing and no pictures were there shown.
The same was true of the second hearing since the
pictures were not developed until subsequent to that
hearing." Testimony of both Smith and Buzzard
demonstrates that they deliberately and visibly pretended
to take pictures of incidents wherein pickets were verbally
attempting to persuade a truckdriver and a customer to
honor the picket line and not to deliver or pick up from the
plant. The same tactic of simulated picture taking was
used in other instances which the Company simply
described as occasions when the pickets "congregated."
The intended and actual result of these tactics was that
" Reeder , the union representative in charge of the strike and
picketing, who was present and who testified to the events on
August 15, was unable to remember the name of even one picket
on that occasion In retrospect , the identity of the pickets on that
occasion was not important , but as of August 15 neither the Union
nor the Company could have been sure of what might have
occurred, including the possible importance of the precise
335
the pickets ceased their attempts to have their picket line
honored on the aforedescribed occasions. We believe that
Respondent's conduct was de facto interference in
violation of Section 8(a)(1) of the Act and that the
calculated effect of the conduct was one of interference
with rights protected under Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By failing and refusing to make available to the
Union, upon request, on September 20, 1966, and
thereafter, its books and records in support of its claimed
inability to pay a wage increase in August 1966 and
thereafter, and by failing and refusing to meet and
negotiate with the Union as the collective-bargaining agent
on and after November 15, 1966, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
3. By the taking of photographs and by the pretended
taking of photographs for use as instruments of
interference, and by using the aforesaid as instruments of
interference with legitimate and protected picket line
strike activity, Respondent has interfered with rights
guaranteed by Section 7 of the Act and has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The appropriate unit consists of all production and
maintenance employees at Respondent's Ashland, Ohio,
plant, excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act.
The Union is the representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , it will be recommended that Respondent
cease and desist therefrom and take affirmative remedial
action to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact , conclusions
of law , and the entire record in the case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , it is recommended that the Respondent, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Steelworkers of America , AFL-CIO , by failing and
refusing , upon request , to make available to the said
Union , Respondent 's financial books and records pursuant
to Respondent 's claimed inability to grant a wage increase
to its employees in August 1966 and thereafter.
(b) Refusing to bargain collectively with the aforesaid
Union since November 15, 1966 , by failing and refusing to
identity and conduct of the pickets and others 'rite same may be
said of the testimony of Hockenberry, an active picket, who was
able to name only two pickets on an occasion in which he was an
active participant Much the same is true of testimony by
company witnesses
" Radio Industries, Inc., 101 NLRB 912.925.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet and negotiate with the Union as the collective-
bargaining agent of Respondent 's employees.
(c) Photographing or pretending to photograph or giving
the impression of photographing protected picket line
strike activity of employees for the purpose, and with the
effect, of interfering with rights of employees under
Section 7 of the Act.
2. Take the following affirmative action to effectuate
the purposes of the Act.
(a) Upon request, meet and negotiate with the aforesaid
Union for the purposes of collective bargaining and make
available to the Union , under reasonable conditions and
circumstances , Respondent 's financial books and records
that will reflect Respondent 's financial condition for the
year 1966 and thereafter.
(b) Post at its premises at Ashland , Ohio, copies of the
attached notice marked "Appendix."10 Copies of said
notice, to be furnished by the Regional Director for
Region 8 , after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the aforesaid Regional Director , in writing,
within 20 days of the date of receipt of this Decision,
what steps Respondent has taken to comply herewith.
'" 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
' i In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director , in writing, within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
Upon request , WE WILL meet and bargain collec-
tively with the United Steelworkers of America,
AFL-CIO, and we will make available to the said
Union our financial books and records that will show
our financial condition for the year 1966 and
thereafter.
WE WILL NOT photograph or pretend to photograph
protected picket line strike activity of employees for
the purpose, and with the effect, of interfering with
the rights of employees as guaranteed by Section 7 of
the National Labor Relations Act.
All our employees are free to become, remain, or refrain
from becoming or remaining , members of the aforesaid
Union or any other union, except to the extent that union
membership may be required by a contract as a condition
of employment, or authorized in Section 8(a)(3) of the Act.
Our employees are free to engage in union and concerted
activity, or to refrain from such activity.
RYBOLT HEATER COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.