Sam the Window Man

National Labor Relations Board - Board Decisions

Mar 29, 1962

136 N.L.R.B. 663 (N.L.R.B. 1962)

SAM THE WINDOW MAN 663
WE WILL NOT withhold , withdraw, curtail , or discontinue any privilege or
benefit of any employee, or any other term or condition of employment , as a re-
prisal for , or in order to influence , any employee 's attitude toward any labor
organization , or to discourage any employee from membership in, or any
activity on behalf of , such an organization.
WE WILL NOT in any other manner interfere with , restrain , or coerce em-
ployees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
or 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 em-
ployment, as authorized in Section 8(a)(3) of the said Act.
WE HEREBY NOTIFY our employees that our practices , and policies of granting
loans to employees , distributing paychecks to them , joining with employees in
contributing to sickness or accident benefits for employees , or to funeral
expenses incurred for any employee or his family, and selling fuel oil to em-
ployees at a 5 percent discount have been reinstated and are now in effect to
the same extent and under the same conditions as they existed on and before
May 2, 1961.
WE WILL pay each employee who has purchased fuel oil from us since the
discontinuance of the practice of giving a 5 percent discount to employees for
such purchases , a sum of money equal to 5 percent of the purchase price paid
the Company by such employee for each purchase of fuel oil made by him
between the date of discontinuance of the discount practice and its restoration.
All our employees are free to become or remain or refrain from becoming or
remaining members of any labor organizaiton , except to the extent that this right may
be affected by an agreement in conformity with Section 8(a)(3) of the National
Labor Relations Act.
REED'S FUEL 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.
Aluminum Screen and Window Co., Inc., d/b/a Sam The Window
Man and Brotherhood of Painters , Decorators and Paper-
hangers of America, Glaziers Local 1241, AFL-CIO. Case No.
17-0A-17925. March 29, 1962
DECISION AND ORDER
On September 13, 1961, 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, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and 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 [Members Rodgers, Fanning, and Brown].
136 NLRB No. 62.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Aluminum Screen and
Window Co., Inc., d/b/a Sam The Window Man, Wichita, Kansas,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Painters,
Decorators and Paperhangers of America, Glaziers Local 1241, AFL-
CIO, as the exclusive representative of all employees in the appro-
priate unit. The appropriate unit is :
All production and maintenance employees employed at the Em-
ployer's Wichita plant, excluding office clerical employees, sales-
men, servicemen, installation men, guards, watchmen, and super-
visors as defined in the Act.
(b) Discouraging membership in said Local 1241, or in any other
labor organization of its employees, by discharging, laying off, or re-
fusing to reinstate any of its employees because of their concerted or
union activities, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of em-
ployment.-
(c) Interrogating employees concerning union affiliation or activi-
ties in a manner constituting interference, restraint, or coercion in
violation of Section 8(a) (1).
(d) Threatening employees with discharge, loss of seniority, closing
of the plant, or any other form of discrimination, if they engage in
concerted or union activities.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
i At, the hearing, counsel for Respondent advised the Trial Examiner that a criminal
prosecution was pending ' against Foreman ' Witt; that ' Respondent wanted to call Witt
as a witness, but because of the pending criminal case wished to avoid placing on the
record any material which could be used against Witt in the criminal case, and, there-
fore, moved that the Trial Examiner rule that any cross -examination of Witt be re-
stricted to the area of direct. The Trial Examiner denied the motion stating that the
General Counsel would have the right to examine Witt on any issue in the case and that
he would not restrict cross -examination to the area of direct The Respondent did not
call Witt as a witness , nor did it make any offer of proof as to what testimony would
have been elicited from Witt had he testified . In these circumstances , we find Respond-
ent's exception to the Trial Examiner's ruling to be without merit.
SAM THE WINDOW MAN 665
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with said Local 1241 as the
exclusive representative of all employees in the foresaid unit, and,
if an*understanding is reached, embody such understanding in a signed
agreement.
(b) Offer Donald Cheney, Orville McLinn, and Olen Nichols im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights or
privileges.
(c) Make whole Donald Cheney, LaVerne Koepsel, Orville
McLinn, Verde Mitchell, Olen Nichols, and Lester Rickards in the
manner set forth in "The Remedy" section of the Intermediate Report.
(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 other reports as set forth in "The Remedy" section of the
Intermediate Report.
(e) Post at its place of business in Wichita, Kansas, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
2In 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, we hereby notify our employees that :
WE WILL NOT discourage membership in Brotherhood of Paint-
ers, Decorators and Paperhangers of America, Glaziers Local
1241, AFL-CIO, or in any other labor organization of our em-
ployees, by discharging, laying off, or refusing to reinstate any
of our employees because of their concerted or union activities, or
in any other manner discriminate in regard to their hire or tenure
of employment or any term or condition of employment.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees concerning union af-
filiation or activities in a manner constituting interference, re-
straint, or coercion in violation of the Act.
. WE WILL NOT threaten employees with discharge, loss of sen-
iority, closing of our plant, or any other form of discrimination,
if they engage in concerted or union activities.
WE WILL NOT in any other manner interfere with, restrain,
or. coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Glaziers
Local 1241, or any other labor organization, to bargain collectively
through representatives of their own choosing, or 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.
WE WILL offer Donald Cheney, Orville McLinn, and Olen
Nichols immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their sen-
iority or other rights or privileges.
WE WILL make whole Donald Cheney, LaVerne Koepsel, Orville
McLinn, Verde Mitchell, Olen Nichols, and Lester. Rickards for
any loss of pay they may have suffered as a result of our discrimi-
nation against them.
WE WILL, upon request, bargain collectively with Glaziers
Local 1241 as the exclusive representative of all employees in the
following bargaining unit :
All production and maintenance employees at our Wichita
plant, excluding office- clerical employees,. salesmen, service-
men, installation men, guards, watchmen, and supervisors as
defined in the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members in good standing of Glaziers Local
1241, or any other labor organization.
ALUMINUM SCREEN AND WINDOW CO.,
INC., D/B/A SAM THE WINDOW MAN,
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.
Employees may communicate directly with the Board's Regional
Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City 6,
Missouri, Telephone Number, Baltimore 1-7000, Extension 731, if
they have any question concerning this notice or compliance with its
provisions.
SAM THE WINDOW MAN
INTERMEDIATE REPORT
667
STATEMENT OF THE CASE
This proceeding involves allegations that the Respondent, Aluminum Screen and
Window Co., Inc., d/b/a Sam The Window Man, violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat.
519. On March 7, 8, and 9, 1961, I conducted a hearing at Wichita, Kansas, at
which all parties were represented. The Respondent's motion to dismiss the com-
plaint is denied for reasons which appear below.
Upon the entire record, and from my observations of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, a Kansas corporation, has its principal place of business at
Wichita, Kansas, where it is engaged in the fabrication, assembly, and sale of
aluminum storm windows, doors, and related articles. The Respondent annually
sells products valued ' at over $500,000, of which more than $50,000 represent ship-
ments directly to points outside Kansas. There is no dispute, and I find, that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE UNION
Brotherhood of Painters , Decorators and Paperhangers of America, Glaziers
Local 1241, AFL-CIO, is a labor organization which admits to membership em-
ployees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issues are whether the Respondent invalidly (1) refused to bargain
with the Union, (2) discharged certain employees, (3) laid off certain employees,
and (4) interrogated and threatened employees.
B. Chronology of events
On September 12 and 14, 1960, various employees of the Respondent met with
representatives of the Union (which is sometimes called Local 1241 herein). Nine
employees, who constituted a majority in the appropriate unit described hereinafter,
signed cards authorizing the Union to represent them. On September 15, Howard
V. Robinson and M. E. Young, representatives of the Union, called upon Robert S.
McDonough, the Respondent's president. Robinson, after introducing himself and
Young, said that the Union had been designated by a majority of the production
workers and asked recognition. McDonough declined to grant recognition then
and said that he wished to talk with the employees. There were some remarks
concerning McDonough's telephoning Robinson or Young later. Robinson did not
have a business card and Young gave one of his own to McDonough. It was under-
stood that McDonough would telephone Young because Robinson would be in
Kansas City the next day. Young's card identified him as business agent of Local
76, which he also represents, whereas Robinson had said to McDonough that Local
1241 represented the employees. As recited below, the Respondent asserts that
confusion resulted from the use of Young's card.'
Soon after Robinson and Young departed, McDonough called a meeting of the
window shop employees. He expressed shock at having been visited by Robinson
and Young, saying too that the employees should have come to him first and that the
Union was not needed. McDonough asked which employees desired to be repre-
sented by the Union, why they desired such representation, and who was their
spokesman. The employees told him that they all favored union representation and
1 The findings concerning this conversation are based upon the testimony of Robinson
and Young. McDonough testified that Robinson said to him, inter alia, that a majority
of the employees in the Respondent's window shop, where windows are made, wished to
be represented by "the union," that McDonough said that he was "quite busy" and
could "let [Robinson] know In a week or some such time," and that the conversation
soon terminated after McDonough said that it "might as well be brought to a close be-
cause" he "wasn't very open-minded at this time about the union "
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had no spokesman among them. McDonough said that he could purchase
windows and thereby close the window shop. He asked the employees to re-
consider? After the meeting, McDonough called his attorney, Fred A. Beaty, who
advised, according to McDonough, "that the smart thing for a small business to do in
a situation of this type was to determine . [whether] the union did have a
majority of the members of the unit and, if so, to go ahead and recognize the union." 3
On the next morning, September 16, there were several events. First, Beaty
testified that he was unsuccessful in trying to telephone Young at the latter's office.
According to Beaty, the call was made "early in the morning" and there may have
been no answer. Second, Foreman Witt telephoned La Verne Koepsel, an employee
who was on sick leave, and asked what Koepsel knew of the organizational acitvities.
Koepsel had signed an authorization card and he told Witt that he "would go along
with" other employees. To Witt's question, "Does that mean you are in favor?"
Koepsel answered affirmatively.4 Third, about the same time that morning, the
window shop employees selected two of their number, Olen Nichols and Orville
McLinn, as a committee to inform McDonough, who had asked that they reconsider,
that their decision was that they still wanted the Union to represent them. Soon
the two employees met with McDonough and conveyed the decision. McDonough
spoke against the decision, saying that he "didn't want any outsiders coming in and
telling him how to run the place," that a "smart man realizes his mistakes," that
McDonough could close the plant, and that he wished to have another meeting with
the shop employees.5
Soon after McDonough talked with Nichols and McLinn, he telephoned Attorney
Beaty and asked Beaty to attend the meeting that afternoon. According to Mc-
Donough's testimony, he told Beaty that he and the employees knew "very little
about unions" and, therefore, he wanted Beaty to attend the meeting to "discuss
unions." According to Beaty, however, the purpose of the meeting was to determine
the bargaining unit desired by the Union and whether the Union enjoyed a majority
status therein, and McDonough asked him to attend so that he could ask the em-
2 The findings concerning this meeting are based upon the testimony of various em-
ployees who testified for the General Counsel. Two persons who were identified as
having been present on behalf of management, Frank Huffmaster and Fred Witt, office
manager and foreman, respectively, did not testify. McDonough testified that the visit
by Robinson and Young had "completely taken [him] by surprise," that he had been
unaware that any employee was interested in the Union, and that he called the meet-
ing of employees "to find out what it was all about " McDonough testified also that
he opened the meeting by asking, "What is the deal with the union,", that there was
no response , that he then told of the visit by Robinson and Young, and that he said to
the employees that he "wanted to know, did [Robinson and Young] represent them, and
tell me about it because I didn't know anything about it." Again there was silence on
the part of the employees with "one or two exceptions," according to McDonough, be-
cause the employees "were all, to a degree, concerned with how [McDonough] was
going to react, and so it was a kid-glove situation " McDonough testified further that
the employees "more or less indicated through a nod of the head or their lack of com-
munication that they may be for [the Union] or against it," with the result that
McDonough understood that only two to five employees favored the Union. In this con-
nection, McDonough sought to repudiate a written statement which he signed on Janu-
ary 25, 1961, that recites that after the meeting he understood "that all of the shop
employees wanted the union." McDonough dented that he ever told an employee that
he would close the plant if the Union "came in" and that he ever made a threat to an
employee based upon the employee's vote for or against the Union I cannot credit
these denials in view of the extensive unfair labor practices which McDonough com-
mitted, as found herein. As recited, neither Huffmaster nor Witt was called as a witness
to support McDonough 's denials.
3 McDonough testified that he telephoned Beaty after the meeting. Beaty, who also
was a witness for the Respondent, testified that after the telephone conversation he
sought unsuccessfully to call Young, whose name had been given to him by McDonough,
that his effort to call Young was after normal working hours, and that he advised
McDonough that they "should ascertain from the employees in the plant what group or
what unit it was the union desired to represent and determine whether or not the union
had a majority status in that group .. . .
'The findings concerning the conversation between Koepsel and Witt are based upon
the former's testimony. Witt was not a witness. See footnote 30, infra.
5 The findings concerning McDonough's conversation with Nichols and McLinn are
based upon the two employees ' testimony . McDonough testified that the two employees
told him of the group's decision to be represented by the Union.
SAM THE WINDOW MAN 669
ployees pertinent questions. Beaty also testified, in effect, that McDonough did not
inform him that McDonough had been told by Nichols and McLinn that the
employees, after reconsideration, still desired union representation .6
When the meeting began, Beaty waited outside the room and McDonough spoke
to the employees. McDonough told them that they had not made the right decision,
that he and they did not know much about unions, and that he wanted his attorney to
address them. Beaty entered the room. He spoke on a number of subjects in the
area of labor relations, and in some instances his remarks were prompted by
questions from McDonough and employees. It is unnecessary to make detailed
findings concerning Beaty's remarks. It suffices to say that Beaty, in addition to
addressing the employees, asked what bargaining unit they desired and whether
they wanted union representation. As Beaty testified, the employees were naturally
hesitant to say whether they favored a union, but at the end of the meeting he told
them that he had obtained enough information so that the Respondent "knew what
group [unit] they were talking about, and that all of the people within that group
were . . . willing to go along and that is all [the Respondent] needed." Beaty
testified further, however, that he did not recall that any union was mentioned by
name during the meeting, that he thought the employees had in mind Local 76, and
that when he later received a copy of Local 1241's petition "questions arose con-
cerning the union and the unit."
During the meeting, McDonough said to employees that he could buy windows
and close the shop. He said too that the Respondent could discharge employees and
that the Union could do nothing about it .7
During and after the meeting, Young made unsuccessful attempts to reach
McDonough by telephone. He telephoned the plant and asked to speak with
McDonough. A female employee who answered the telephone said that McDonough
was attending a meeting, and Young gave his name and number with the request
that McDonough call him upon leaving the meeting. Later Young called the plant
again and was told by the employee that McDonough had been given the message
but that McDonough had left the plant for the day.8 Young promptly advised
Robinson of his inability to talk with McDonough. Robinson, who was in Kansas
City where the Board's Regional Office is located, filed a petition on behalf of Local
1241 late that afternoon.
The next day, according to Beaty, he again attempted unsuccessfully to telephone
Young at the latter's office. Beaty's testimony does not disclose whether there was
an answer. Young continued his efforts to telephone McDonough, but was un-
successful. On the following Monday, September 19, Beaty and Young talked by
telephone. Young told Beaty of having tried to talk with McDonough on September
16 and over the weekend, and asked for the Respondent's decision concerning recog-
nition. Beaty questioned the appropriateness of the unit and refused recognition.
Young said that an election would be sought .9
9 Beaty testified that he thought that before the meeting of September 16 McDonough
did not know whether the Union represented a majority of employees in the window shop.
7 The findings that McDonough spoke of buying windows and of discharging employees
is based upon the testimony of employees. McDonough was not questioned concerning
remarks which employees attributed to him on this occasion, but, as already noted, he
denied that he threatened employees at any time. Beaty did not acknowledge or deny
that the remarks attributed to McDonough were made after Beaty entered the meeting
room. Also present on behalf of management were Office Manager Fluffmaster, Foreman
Witt, and Veryl Edwards, another supervisor, but none of those three persons testified
concerning remarks made during the meeting.
8 These findings are based upon Young's testimony. On the other hand, McDonough
testified unconvincingly that, shortly before the meeting began, he had "a vivid memory"
that he should let Young and Robinson know by 2 o'clock whether he would "negotiate
peacefully," and that he tried unsuccessfully to telephone Young McDonough did not
testify whether it had been his intention, if he had spoken with Young, to say that he
would negotiate. With respect to Young's attempts to telephone McDonough, the latter
did not deny having received the message to call Young. McDonough testified that as
soon as the meeting ended he asked Beaty what he should do. McDonough did not
testify concerning Beaty's reply.
9 Young testified that Beaty questioned whether "we were the proper bargaining unit
or union," be could not recall which. Beaty's testimony conflicts with Young's. Accord-
ing to Beaty, although be had been "quite sure" after the meeting of September 16 that
the unit desired by employees consisted of those in the window shop, and although the
Respondent was "willing to bargain with the union for any unit," he had some un-
certainty about the unit, so he said to Young that he would like to meet with Young
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 20, Beaty received a copy of the petition which Robinson had filed.
He observed that it bore the name of Local 1241, not Local 76, and that it recited
that nine production employees constituted an appropriate unit. Beaty, to quote his
testimony, knew that there were only seven employees in the window shop and "was
not sure which nine they were asking for" and "was concerned about the difference
in the local number." He communicated with the Regional Office and asked that a
conference be arranged. A date was set, but later the conference was canceled
because of the illness of a field examiner.
On September 24, the Respondent refused to permit Koepsel, who had been ill,
to return to work. This alleged unfair labor practice is discussed below in section
III, F. On October 5, a hearing was held in the representation case. The Respondent
and the Union did not agree upon the unit, and the issue was left to the Board for
determination. On November 7, Floyd Ward, an employee, was discharged. This
alleged unfair labor practice is discussed in section III, G, below.
About November, the Respondent received 500 windows from an out-of-State
manufacturer. The Respondent's normal practice is to make its own windows and
the record does not disclose the date of the last occasion upon which the Respondent
had purchased windows. Verde Mitchell, an employee since 1955, testified that he
could not recall any earlier occasion. During November, after receipt of the 500
windows, Foreman Witt told McLinn that the windows had been purchased at a cheap
price and that McDonough did not need the window shop because he could purchase
windows or lease the necessary equipment to someone who would make windows
for him.1o
On December 7, the Board issued a Decision and Director of Election in the
representation case, finding an appropriate unit which is described hereinafter and
directing that the Regional Director conduct an election.
On December 12, in anticipation of the election, McDonough called a meeting
of employees in the appropriate unit. Among those present were a number of new
employees who had been hired during the latter part of the year to fill several posi-
tions created by an increased demand for storm windows and to replace several
employees in the window shop whose employment had been terminated. There was
some discussion concerning the employees' production, but the principal subject of
discussion was the Union. McDonough testified that he had been advised by Attor-
ney Beaty that he could campaign and give his viewpoint on the Union after an elec-
tion had been scheduled and that his attitude toward the Union had become unfavor-
able because, no matter how many new employees he hired, operating costs were
increasing, production was not, and there was "a pretty sorry state of affairs." During
the meeting, using a blackboard for notations, McDonough called for a discussion
of the "pros and cons." Several employees spoke of their desire for improved work-
ing conditions and representation by the Union. Insofar as appears, no employee
spoke against union representation. McDonough told the employees that he did not
have to bargain with the Union and that he could buy windows. "To prove a point,"
"to ascertain exactly what unit the union wanted and to start talking about a contract "
Beaty testified further that Young did not ask for recognition but, instead, refused to
meet with him by replying that there was nothing to discuss because the Union had filed
a petition. In addition, Beaty testified that he was unaware of the interest of Local 1241,
that he thought then that only Local 76 was interested, that in talking with Young he
granted recognition to "the union [he] thought was Painters Local 76," and that later
that day he advised McDonough that "we had recognized the union" and that McDonough
could not lawfully change the working conditions of employees in the window shop or
discuss changes with them Beaty testified further that it was his "position at all times
after September 19 and prior to the 29th of December (the date of an election] we had
recognized the union and were willing to bargain with them at any time," and that the
only purpose which the Union had in seeking an election after he had offered recognition,
insofar as he could understand, was to obtain a certification by the Board I cannot
credit Beaty's testimony that he offered recognition and that Young refused to meet to
discuss a unit and a contract In the first place, in view of Young's efforts to talk with
McDonough about recognition, it is unrealistic to conclude that Young would have re-
jected an offer to discuss a contract. Secondly, the Respondent says in its brief (which
was prepared by Beaty's co-counsel) that Beaty did not make himself clear to Young
Thus, according to the brief, Beaty was "confusing the terms 'recognition' and 'agreeing
to a consent election.' . He was willing to recognize the Union and the unit for the
purposes of a consent election" only.
10 This finding is based upon the uncontradicted testimony of McLinn 'Witt was not
a witness. See footnote 30, infra.
SAM THE WINDOW MAN 671
said McDonough , he had bought 500 windows and did not need the window shop ii
December 12 was a Monday. Shortly after the meeting that day, McDonough
asked Nichols and McLinn to have the Union 's representatives , Robinson and Young,
come to the plant on the next Monday , December 19. McDonough said: "We don't
know too much about the union , and ask them if they will come down and fill us in
on this. " Nichols and McLinn agreed , but they did not inform Robinson or Young
of McDonough 's request because, on December 15, they and all other full-time
employees in the window shop were laid off, as discussed below.
On December 14, a field examiner wrote the Respondent that the election would
be conducted on December 29. On December 15, Supervisor Edwards engaged
Nichols in discussion . Edwards asked the identity of the employees ' spokesman, and
Nichols answered that there was no spokesman . Edwards expressed his view con-
cerning a probable outcome of the election and asked that Nichols make a prediction.
Nichols declined . Edwards said that McDonough did not "want the union and he
don't have to have this shop , he can shut it down anytime . . . and buy his windows
elsewhere ." Nichols answered that that was McDonough's "business ," and Edwards
said that he and McDonough would infer that Nichols was for the Union . Edwards
added that "if the union did get in that you [Nichols] wouldn't have any security"
and that Edwards "could make it a lot rougher on you than it is. " Nichols replied:
"I don 't know how you can make it any rougher on me than it is now." 12
Later on December 15, Foreman Witt told Lester Rickards , an employee, that
the Respondent was 500 to 600 "units behind" in production . Witt told Nichols that
about 300 old model windows had to be manufactured and that a change from new
to old dies would be made that day.13 Near the end of the workday, various em-
ployees were laid off , and in this connection it is necessary to recite that some em-
ployees in the window shop worked under individual written contracts called "Belo"
contracts . A Belo contract provides inter alia for payment of a specified hourly
wage to an employee for the first 40 hours per week, and a higher rate for hours
above 40, with a guarantee that the employee will .be paid for 52 hours in any
workweek in which he works at all. December 15, a Thursday, was the end of a
workweek , and any employees in the window shop except those hired after the
Union 's request for recognition , who had not been asked to execute Belo contracts,
would have been entitled to pay for 52 hours if they had been permitted to work,
on December 16 or later in the workweek which began that day. On December 15,
McDonough decided to lay off employees . He telephoned Attorney Beaty , saying,
so Beaty testified , that "they were out of work" and asking if there was "any reason
why he couldn't lay off everybody in the window shop" and other employees, to
which Beaty responded that Beaty knew of no "reason why he could not."
McDonough laid off the window shop employees , two telephone solicitors , a switch-
board operator , a clerk and a sales manager, and terminated a contract with an
advertising agency. Within a week , McDonough also laid off two installers. The
question whether the Respondent , in making the layoffs of union adherents, was
11 The findings concerning remarks at the meeting are based upon the testimony of
several employees who attended . One such employee , Dennis Dye , was a witness for the
Respondent . Present at the meeting as representatives of management were Foreman
Witt who was not a witness and Supervisor Edwards whose testimony was confined to
other subjects McDonough testified , as already noted, that he never threatened any
employee in connection with the Union . He testified also that on December 12 there
was "discussion of the pros and cons of the union, advantages and disadvantages," and
that be explained to employees that he had "formerly [ some years earlier] bought win-
dows fully assembled from a manufacturer , that the [window ] shop was operated as a
convenience to the sales force, that the sales force was supporting the entire organization,
and that if the economic condition got so tight that it became more feasible and prac-
tical for our company to buy assembled windows instead of building our own , that is
what we would do." The Respondent , in its brief , argues that McDonough ' s remarks olm
December 12 and earlier about the possibility of terminating the work of the window shop,
were "simply a statement that in effect says if an outsider forces us to raise wages
faster than the Company can absorb them, the Company might be forced to close its
plant " I cannot accept this contention . In addition to the testimony of employees
which disputes it, other remarks and actions of McDonough , Witt, and Edwards convince
me that McDonough did not limit himself to noncoercive arguments but was determined'
'to use threats and other means to combat the organizational activity
19 The findings concerning this conversation are based upon Nichols' uncontradicted'
testimony . Edwards, a witness for the Respondent , did not testify concerning the
conversation.
13 These findings are based upon the uncontradicted testimony of Rickards and Nichols.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivated by valid business considerations or by the employees' union activity is
discussed in section III, E, below.
The Belo contracts contain provisions that they may be terminated by either party
upon 1 week's notice. There had been no notice of layoff to the employees. On
December 21, McDonough initiated a telephone conversation with Nichols con-
cerning the latter's insurance . During the conversation, McDonough inquired
whether Nichols had obtained other employment, and Nichols answered in the nega-
tive, asking if McDonough thought that the employees should have been given "a
week's notice on the contract." McDonough answered that Nichols was "just in .. .
layoff" status and that McDonough could "be just as dirty as you guys because you
hit me in the back." 14
On December 20, the Respondent reinstated three of the laid-off employees, Gary
Brown, Melvin Cassity, and Clarence Rutan, who were relatively new employees,
having been hired after the Union's request for recognition, and who had not signed
Belo contracts. Within a day or so, McDonough sought advice from Attorney Beaty.
The Respondent's testimony is that McDonough told Beaty that there was enough
work to keep a few persons busy for a few days before Christmas and that McDonough
did not know just how much work there would be, and asked whether he could recall
the employees who worked under Belo contracts and pay them only for the hours
actually worked. According to the Respondent, Beaty answered that any such em-
ployee who returned to work would have to be paid for 52 hours and that McDonough
must not discuss the terms of the Belo contracts with employees except in the pres-
ence of a union representative. On December 23, five additional employees were
reinstated, no more than one of whom had worked under a Belo contract.15 One
of the five, Cheney, had been called to the plant the day before and had had separate
conversations with McDonough and Edwards. In the conversation with McDonough,
Cheney was asked what he thought of the Union, to which he responded that he did
not know much about it, and McDonough said that if Cheney wished to work and
"help [McDonough] out the best" he could, Cheney could have a job as long as he
desired. In the conversation with Edwards, Cheney was asked whether he had at-
tended any union meetings . Cheney answered affirmatively. Edwards asked the
identities of employees who had attended the last meeting and Cheney named seven
or eight. Edwards asked what had been said at the meeting, and Cheney replied
that the employees had been told that they could obtain better pay and collective
bargaining, but that Cheney did not know whether this was so . Edwards said that
he thought there would be enough work so that no more layoffs would occur.16
On December 23, McDonough had separate conversations with three of the laid-
off employees who had worked under Belo contracts and who had returned to the
plant to receive Christmas presents from the Respondent. In none of the conversa-
tions, insofar as appears, was a contract or a return to work discussed. McDonough
told McLinn, in substance, that the payment of dues to the Union was a waste of
money and that "a smart man realizes his mistakes." McLinn volunteered that he
had not changed his favorable attitude toward the Union. With respect to the per-
sons whom McDonough was reinstating, McDonough said that he wanted people
who would work for him. Another employee with whom McDonough talked that
day is Rickards. McDonough asked how Rickards felt about the Union. Rickards
said that he had not changed his favorable opinion. The third employee is Nichols.
McDonough asked if Nichols would have a "good Christmas," and Nichols an-
swered that he had been laid off without "even a week's notice." McDonough said
that he did not "have to keep you guys on the payroll" or bargain with the Union,
that he had "spent over $700 for lawyers fighting the union," that he had been un-
able to maintain sales and that was the reason for the lack of work, and that he was
mailing a letter to employees which Nichols should consider before voting in the
election.17 The letter to which McDonough referred, a copy of which was sent to
each employee in the appropriate unit, is a lengthy, carefully worded argument which
was made for the expressed purpose of causing "the defeat of the union [by] a
landslide."
U The findings concerning this conversation are based upon the uncontradicted testi-
mony of Nichols. McDonough did not testify concerning the conversations.
m The five are Donald Cheney, Dennis Dye, Paul Lafort, Herman Puetz, and Warren
Gamble. Puetz, a saw operator, signed a union card on September 14 and may have
worked under a Belo contract. McDonough testified, however, that no employee who
worked under such a contract was recalled until after the election on December 29.
16 The findings concerning Cheney's conversations with McDonough and Edwards are
based upon Cheney's uncontradicted testimony.
17 The findings concerning McDonough's conversations with McLinn, Rickards, and
.Nichols are based upon the uncontradicted testimony of those employees.
SAM THE WINDOW MAN 673
On December 29, the election was held. The result was inconclusive, there having
been three votes for the Union, seven against it, and eight challenged ballots. That
morning Edwards spoke to Dye and Cheney. To Edwards' question whether they
had attended a union meeting the night before, Dye answered in the negative and
Cheney answered in the affirmative. Edwards asked Cheney how many persons had
attended, and Cheney answered "five or six." Edwards asked what had been said
at the meeting , and Cheney answered "nothing much , except" remarks about the
balloting and the time of the election . Edwards said : "It looks like you or I didn't
learn much by this." 18 On the next day, Cheney was discharged by Edwards. The
discharge is discussed under section III , H, below.
On Tuesday , January 3 , 1961 , the Union filed its initial charge and on the next
day it filed objections to the election . Also on January 3, the Respondent began re-
calling employees who had worked under Belo contracts . The contracts were set
aside by the Respondent , however, and reinstatements were offered at lower wages.
Thus, on January 4, Edwards offered Nichols reinstatement on the Respondent's
"conditions only," saying that the Belo contract was being terminated , that Nichols'
pay would be reduced to $ 1.10 an hour with no weekly guarantee , that Nichols could
"take it or leave it," and that the alternative was to accept the 1 week 's termination
notice provided in the Belo contract . Nichols accepted reinstatement . On the same
day, McLinn talked with McDonough who offered him the same alternatives . McLinn
asked if McDonough could "do better" than the $1 . 10 per hour , and McDonough
answered , " . . . take it or leave it ." McLinn accepted . 19 Rickards accepted.
Mitchell, who could not return to work on January 5 because of his health, later
refused to accept the decrease in wages. His employment was terminated . During
February, Koepsel returned to work under the new conditions.
On February 9, Nichols and McLinn were discharged. The circumstances are
discussed below under section III, I.
On February 10, the Regional Director issued a report on the Union 's objections
to the election . He recommended that the election be set aside . On February 15, he
issued the complaint in this matter . On February 27, the Board vacated the results
of the election and dismissed the Union's petition because the complaint alleges a
refusal by the Respondent to bargain collectively.
C. The refusal to bargain collectively
1. The appropriate unit ; the Union 's majority status
There is no dispute , and I find, that all production and maintenance employees at
the Respondent 's Wichita plant , excluding office clerical employees , salesmen, serv-
icemen , installation men, guards , watchmen , and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act . There also is no dispute , and I find, that on
September 15, 1960 , the unit contained 11 employees , of whom 9 had designated the
Union to represent them 20 Accordingly , on September 15 and at all times there-
after the Union was the exclusive representative of all employees in the unit for the
purposes of collective bargaining.
2. The refusal to bargain
The factual recital above leaves no doubt that the Respondent refused to bargain
with the Union . On September 15, Robinson asked recognition as representative
of the production workers .21 McDonough refused to grant recognition and promptly
called a meeting of employees and embarked upon a campaign to destroy the Union's
18 These findings are based upon Cheney's uncontradicted testimony . Dye, a witness
for the Respondent , did not testify concerning the conversation . Edwards testified that
be inquired of Dye and Cheney as a "Matter of curiosity as to how the election might be
going to come out." Edwards did not deny having said, "It looks like you or I didn't
learn much by this"
19 These findings are based upon the uncontradicted testimony of Nichols and McLinn.
20 The nine employees who designated the Union are : Billy Cully, Koepsel , Charles
Lasley, McLinn, Mitchell, Nichols, Puetz, Rickards, and Ward. The two additional em-
ployees are Walt Baker and George Plersol.
11 There is no substantial variance between a unit of production and maintenance
workers, found by the Board to be appropriate, and a unit of production workers only.
Of the 11 employees in the larger unit on September 15, 1960 (see footnote 20, supra),
8 were assemblers , Koepsel and Puetz were sawmen, and Baker was the janitor
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative status. Whatever question, if any, McDonough or Beaty may have
had about an appropriate unit then or later, it is clear that McDonough 's refusal
to bargain was not founded in any such question . Nor did McDonough have doubts
about the Union 's majority status. On September 15 he asked the employees to
reconsider. They did so and on the next day their committee informed McDonough
that they adhered to their desire for union representation . McDonough 's answer
was to threaten the two committeemen and to say that he would have another
meeting of employees . At that meeting , on September 16, McDonough displayed
his unwillingness to bargain by saying to the men that they had not made the right
decision and by threatening to close the window shop and to discharge employees.
The refusal was thereafter further demonstrated , inter alia , by McDonough 's failure
to return Young's telephone call; by Beaty's refusal to grant recognition to the
Union ; by McDonough 's act of changing the terms of employment during January
1961 , while simultaneously terminating the Belo contracts , without prior consulta-
tion with the Union ; and by repeated acts of interference , restraint , and coercion,
as summarized below. I find that the Respondent, by its refusal to recognize and
deal with the Union , refused to bargain collectively in violation of Section 8(a)(5)
and (1).
D. Interference , restraint, and coercion
I find that by the following conduct the Respondent independently violated
Section 8 (a)(1): First, McDonough's interrogation of employees on September 15
and his threat to close the plant ; his like threat on September 16 to Nichols and
McLinn ; his like threat to employees at the September 16 meeting , coupled with a
threat to discharge employees ; his like threat at the December 12 meeting when
he emphasized the threat by referring to his purchase of 500 windows ; his remark to
Nichols on December 21 that he could be just as dirty in dealing with employees as
they had been by hitting him in the back ; his inquiry on December 22 of Cheney
concerning what Cheney thought of the Union ; his remark to McLinn on December
23 that "a smart man realizes his mistakes"; his inquiry of Rickards on the same
day concerning how Rickards felt about the Union ; and his remarks on the same
day to Nichols ,that he did not have to keep employees on the payroll or bargain
with the Union and that he had "spent over $700 for lawyers fighting" the Union.
Second, Edwards' inquiries of Nichols on December 15 and his statements that
McDoonugh could close the plant, that he and McDonough would infer that Nichols
favored the Union , that Nichols would lose security "if the union did get in," and
that he could make it a lot rougher on Nichols ; Edwards' inquiries of Cheney on
December 22 concerning the Union and a union meeting , his inquiries of Dye and
Cheney on December 29 concerning another union meeting, and his remark to
Cheney that "It looks like you or I didn't learn much by this." Third, Witt's inqui-
ries of Koepsel on September 16 concerning organizational activities and Koepsel's
attitude toward the Union, and Witt's remark to McLinn during November that
McDonough did not need the window shop because he could purchase windows.
E. The layoffs on December 15, 1960
We have seen that on December 15 the Respondent laid off employees who worked
in and outside the appropriate unit . Within the unit, all but two employees were laid
off. Included were all employees who had signed union cards and whose employ-
ment had not been terminated earlier, as well as all other full-time employees in
the window shop 22 The complaint alleges that the layoffs of McLinn , Mitchell,
Nichols, and Rickards were invalid . The complaint does not allege invalidity respect-
ing the other layoffs.
The General Counsel , pointing to the Respondent 's hostility toward the employees'
organizational efforts, asserts that the layoffs of the four named employees were
motivated by such hostility. On the other hand, the Respondent asserts that it was
motivated solely by a lack of work for employees in and outside the unit . In support
of its position, the Respondent introduced in evidence certain statistical data. A
portion of the data shows the number of windows and the number of doors which
were manufactured, as well as the numbers which were delivered , in each of the last
4 months of 1959 and 1960. In comparing the figures for 1959 with those for 1960,
I see no sizable difference except in the months of December , and the decreased
22 The two employees in the unit who were not laid off are Piersol and Baker. The
card signers who were laid off are McLinn , Mitchell , Nichols, Puetz , and Rickards The
card signers whose employment had been terminated earlier are Koepsel, Ward, Cully, and
Lasley. We have no issue concerning Cully and Lasley
SAM THE WINDOW MAN 675
production and delivery figures for December 1960 may be attributed to the fact
that the window shop was closed for a portion of that month because of the layoffs.
Additional data reflects the profit or loss for each of the last 4 months of 1959 and
1960. These figures show that there was a smaller profit for the months of Septem-
ber and October 1960 than for the corresponding months of 1959, that there was a
net loss during November and December 1960, and that there was a net loss of
$3,363 for the last 4 months of 1960 as compared with a profit of about $16,000 for
the corresponding months of 1959. The data discloses nothing with respect to the
profit or loss for either entire calendar year, however, nor is there any information
relative to the nature of the expenditures and losses for 1960. 1 conclude that the
data does not substantially support the Respondents position. For instance, the
monetary figures which show a net loss for the last 4 months of 1960 do not find
support in the other figures which relate to quantity of windows and doors which were
manufactured and delivered during the same period. Too, the Respondent's failure
to recite the nature of its expenses during the last 4 months of 1960, in explanation
of its net loss, does not eliminate the possibility that there were large expenditures
not ordinarily incurred as, for instance, substantial bonuses or salary increases to the
corporate officers.
I conclude that the Respondent laid off McLinn, Mitchell, Nichols, and Richards
because of their union adherence. I conclude also that the Respondent was similarly
motivated in first reinstating other employees of lesser seniority who had not signed
union cards. There are several reasons. First, various facts disprove the Re-
spondent's contention that valid business considerations prompted the layoffs. The
statistical data, upon analysis, does not support the Respondent's position that there
was a scarcity of work, and McDonough's testimony that such considerations moti-
vated him in making the layoffs must be rejected because he was an unreliable witness
in various instances. Too, Foreman Witt told several employees that there was work
to be done; e.g., on December 15 he told Rickards and Nichols that the Respondent
was behind in production, as recited above, and on December 12 he made like re-
marks to McLinn, Mitchell, and Nichols 23 Moreover, the plant ordinarily is busy
during December, and only 3 days before the layoffs Paul Lafort, who had worked
for the Respondent upon earlier occasions, was put to work in the window shop
The Respondent's need for increased production had been reflected in the number of
hours worked by employees in the window shop. For an undisclosed period of time
before December 9, the employees worked a 60-hour week. For the workweek
beginning on that day, the Respondent reduced the number of hours to 461/2, and
Supervisor Witt and Edwards told employees that the reduction was on a trial
basis for 1 week and that, if production in quantity could not be maintained, the
employees "would have to go back to the long hours." 24
Second, McDonough's decision to lay off employees was made suddenly on the
day after the Regional Office mailed a letter fixing the date for the election, and
there was no advance notice of layoff to the employees.
Third, although the complaint does not allege that more than four employees were
invalidly laid off, and the Respondent points out that "a substantial number" of
additional employees were affected, the fact is that the persons laid off included
everyone who had signed a union card and remained on the payroll, as well as nearly
everyone who was expected to vote in the coming election.25 The layoffs obviously
were calculated to have an effect upon the voters.
Fourth, the Respondent's hostility toward employees who were union adherents
is clearly established by the violations of Section 8(a)(1) and (5), particularly by
the threats of McDonough and supervisors to discharge employees and to close the
2' McLinn, Mitchell, and Nichols so testified without contradiction
2A As noted, the Belo contracts guaranteed to employees pay for 52 hours It does not
appear that the employees were paid for only 461/2 hours during the workweek ending
December 15
250f the nine card signers named in footnote 20, supra, Koepsel, Ward, Lasley, and
Cully were no longer carried on the payroll. McLinn, Mitchell, Nichols, Puetz, and
Rickards were laid off. At the election on December 29, according to the written state-
ment which McDonough gave to the General Counsel, the Respondent challenged the
ballots of Koepsel, McLinn, Nichols, and Rickards while an unidentified person or persons
challenged the ballots of Mitchell, Plersol, and Lafort. The eighth challenged voter is
unidentified in this record. McDonough's written statement, dated January 25, 1961,
recites further that the Respondent "concedes" that McLinn, Mitchell, Nichols, Plersol,
and Rickards are "all eligible to vote" and that the Respondent "withdraws such of
these challenges as were made by" it.
641795-63-vol 136-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
window shop, by McDonough's remark to Nichols after the layoff that McDonough
could "be just as dirty as you guys because you hit me in the back," by McDonough's
remark to McLinn after the layoff that McDonough was reinstating persons who
would work for him, and by McDonough's remark to Nichols after the layoff that he
did not "have to keep you guys on the payroll" or bargain with the Union and that
he had "spent over $700 for lawyers fighting" the Union.
Fifth, I cannot credit the Respondent's main contentions concerning the pro-
vision in the Belo contracts which required payment to an employee for 52 hours'
work in any workweek in which the employee worked at all. According to the Re-
spondent, there was such a lack of work that it would have been unable to keep
a man busy in the window shop for 52 hours at the date of layoffs or soon thereafter
when reinstatements began and, following the advice of Attorney Beaty, it selected
for recall the relatively new employees to whom it was not bound by Belo contracts.
I accept the Respondent's contention that, so long as the contracts were in force, the
Respondent was bound by the minimum pay provisions, but I am convinced that the
Respondent did not believe in good faith that the contracts, coupled with Beaty's
advice, dictated the course of action which the Respondent followed. I am con-
vinced too that the Respondent had a discriminatory purpose in not asking the
Union to agree to set aside the Belo contracts for the period that the Respondent says
that work was scarce, i.e., that the Respondent wanted the existence of the contracts
to be a cloak behind which to conceal its intent to discriminate against union ad-
herents. Thus, the Respondent followed Beaty's advice only insofar as the advice
coincided with McDonough's desires, and refrained from terminating the Belo con-
tracts only so long as it suited McDonough to have them in effect. McDonough
testified that Beaty advised him initially to recognize the Union if it had a majority
status. The Union possessed such status, as McDonough learned from employees
before and after he asked them to reconsider, but he chose to disregard Beaty's
advice and to seek to undermine the Union. Too. Beaty did not advise McDonough
that the Belo contracts were not subject to modification under any circumstances.
Beaty advised instead that a modification must follow collective bargaining, not
individual bargaining as theretofore. Upon an earlier occasion, before the advent
of the Union, McDonough and Koepsel mutually agreed to set aside Koepsel's con-
tract temporarily while he worked less than 52 hours a week. After the advent of
the Union, Beaty advised the Respondent to make no changes without first discussing
the matter with the Union. McDonough chose not to discuss the Belo contracts with
the Union before laying off employees. Somewhat later, after the election had been
held, McDonough dealt with employees individually in terminating the Belo con-
tracts. He called in employees who had worked under such contracts and offered
them less favorable terms of employment on a "take it or leave it" basis.26 I do not
believe that the election's result freed the Respondent from an obligation to discuss
with the Union the termination of the Belo contracts. If the Union had lost the
election, the outcome would not have been controlling because the Respondent's
unfair labor practices were designed to affect the election. But even if we dis-
regard the unfair labor practices for the moment, and look solely at the election's
result, the fact is that the result was inconclusive. This is so because the challenged
ballots were sufficient in number to determine the outcome. The election did not
resolve any issue, and the Respondent may not successfully argue that the election
freed it of an obligation to deal with the Union. In summary, I find that the lay-
offs of McLinn, Mitchell, Nichols, and Rickards violated Section 8(a)(3) and (1).
F. The refusal to reinstate Koepsel
During the summer of 1960, Koepsel received a leave of absence due to illness.
Soon after the employees organized and he had signed a union card, he unsuccess-
fully sought to be reinstated. The issue is whether he was denied reinstatement
during September because of his union adherence or because of his inability to work
the long hours of employees in the window shop.
On September 16, as recited, Foreman Witt telephoned Koepsel, inquired what
Koepsel knew of the organizational activities, and learned that Koepsel favored
union representation. On the same day, Koepsel came to the plant to attend the
meeting at which McDonough and Beaty addressed the employees. After the
meeting, he talked with McDonough and Supervisor Edwards about returning to
work. Edwards suggested, and Koepsel agreed, that Koepsel work to the extent
that he was able, that he be paid only for the hours worked, and that the Belo con-
2G McDonough was advised by Attorney Beaty, so Beaty testified , "after the election
was held and ... the union had no majority status ," that McDonough could cancel the
Belo contracts.
SAM THE WINDOW MAN 677
tract be set aside temporarily as had occurred during March 1960 when Koepsel had
been unable to work fulltime.
On September 24, Koepsel's physician informed him that he could return to work
for a maximum of 8 hours daily. On the same day, however, Edwards told Koepsel
that he was to be replaced "for health reasons only and not because of the union."
Koepsel then talked with McDonough who said that employees would work a 60-hour
week, and Koepsel replied that he was able to work only 40 hours at that time but
soon would have the strength to work 60. McDonough said, "Why fight it, why don't
you just accept it and let it go at that?" Koepsel, who ordinarily operated a saw
but who had performed varied tasks for the Respondent in past years, asked to be
given assignments which would not require him to work 60 hours weekly. Mc-
Donough said that he would think about it 27
During February 1961, after the election, McDonough wrote to Koepsel, saying
that he had heard that Koepsel was able to return to work and that Koepsel would
be reinstated if Koepsel could obtain a physician's approval. Koepsel received the
approval. On February 14, Koepsel's Belo contract was terminated and he returned
to work at a reduced hourly wage.
In its brief, the Respondent asserts that during September it offered to reinstate
Koepsel on less than a 60-hour a week basis, that, however, it withdrew its offer and
refused reinstatement because Koepsel was unable to work a 60-hour week, and that
it acted on the advice of Attorney Beaty that it "not make any exception on Belo
contracts." The Respondent's testimony does not support its assertion. Beaty tes-
tified that Edwards telephoned him for advice and that Edwards
wanted to put Mr. Koepsel back to work part time and pay him only for the
hours he spent, and I advised Mr. Edwards that in my opinion [Edwards] could
not do that because there was a Belo contract and [Edwards] could not discuss
the Belo contract with Mr. Koepsel, [Edwards] had to do it with the union, and
neither could [Edwards] discuss the contract with Mr. Koepsel ... without
the union being present.
Obviously, there was work available for Koepsel on a 40-hour a week basis until
such time as Koepsel's health would permit him to work longer hours. Obviously
too, according to Beaty, Edwards expressed a desire to offer such employment to
Koepsel if there was no barrier in the provision of the Belo contract that an em-
ployee be paid for a minimum of 52 hours, but Beaty advised that the matter of
temporarily setting aside the minimum pay provision of the Belo contract would
have to be discussed with the Union, or with Koepsel in the Union's presence, before
such employment could be offered to Koepsel. The Respondent chose not to discuss
the subject with the Union and not to inform Koepsel of Beaty's advice. It chose
instead to have Koepsel believe that reemployment was being denied, not because of
the Respondent's unwillingness to deal with the Union, but because of Koepsel's
temporary inability to work longer than 40 hours weekly. We have here a clear
violation of Section 8(a)(3) and (1). On September 15, the Union requested recog-
nition . The Respondent invalidly refused it. On September 24, Koepsel was denied
reinstatement solely because the Respondent was unwilling to comply with its
statutory duty to ask the Union to approve setting aside Koepsel's Belo contract
temporarily.
G. The discharge of Ward
Ward was employed during January 1960. On September 12, he signed a union
card. November 5, a workday, was the opening day of the pheasant hunting season.
Ward went hunting. On November 7, he was discharged. The question is whether
he was discharged for having gone hunting after a request for time off had been
denied or because he was a union adherent. The answer turns upon resolutions of
credibility.
On November 5, various employees and representatives of management went
bunting. It does not appear, however, that any such employee was paid for the
time so spent . Ward was the only employee under a Belo contract who hunted that
day. Attorney Beaty testified that a few days before November 5, McDonough
inquired whether McDonough could give employees time off with pay to go hunting
and that Beaty advised that he should not do so because he might be accused of
offering an inducement to employees in view of the situation involving the Union.
"The findings concerning Koepsel's conversations with Edwards and McDonough are
based upon Koepsel's testimony. McDonough testified that he told Koepsel that the win-
dow shop was on a workweek "in excess of 46% hours," that both he and Koepsel knew
that even longer hours were in prospect, and that Koepsel would be reinstated upon
receiving medical approval to work full time.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the Respondent, it refused to give time off for hunting to employees
under Belo contracts because, to have done so, might have been to favor them with
time off with pay 28
The principal question is whether Ward received permission to be absent from work
on November 5. He testified that about October 20 he told Foreman Witt that he
would like to be off on November 5, that he did not give a reason, that Witt nodded
but said nothing, and that he could not recall having heard anything more about his
request or that employees under Belo contracts would not be excused from work to
go hunting on November 5. Ward's testimony concerning his conversation with
Witt is undenied by Witt, who was not a witness. On the other hand, Ward did not
impress me as a reliable witness when testifying about his discharge, and other
evidence supports the defense. Rickards, who was a witness for the General Counsel
on other issues, returned to the stand as a witness for the Respondent. He testified
that shortly before November 5 Witt told employees that there would be no time off
to go hunting, that it was a matter of common knowledge in the plant that such time
off would not be granted but that Ward intended to go hunting, and that on Novem-
ber 4 Rickards overheard Ward tell Witt that Ward intended to go hunting, to which
Witt replied that Ward might not have a job when he returned. I credit Rickards'
testimony. Although the record clearly establishes the Respondent's hostility toward
employees who were union adherents, the record also establishes that the Respondent
refused to give Ward time off to go hunting, that Witt warned Ward that Ward might
lose his job if he should go, that Ward nevertheless did go, and that he was promptly
discharged. I find that Ward's discharge was not in violation of the Act.
H. The discharge of Cheney
Cheney was hired about November 8, 1960. He was among the employees who
were laid off on December 15. Thereafter he attended two union meetings. As
found above, on December 22 he was called to the plant where he had separate
conversations with McDonough and Edwards in which he was asked about a union
meeting and his attitude toward the Union. McDonough said to Cheney that if he
wished to work and to help McDonough, he could have a job as long as he desired.
On December 23, he returned to work. On December 29, the day of the election,
Cheney was questioned again by Edwards. As already recited, Edwards, upon learn-
ing that Cheney had attended another union meeting, said that "It looks like you
or I didn't learn much by this." On December 30, Edwards discharged Cheney.
Cheney is one of six persons whom the Respondent hired during November 1960,
who worked in the appropriate unit, who were laid off on December 15, and who
were reinstated on December 20 and 23. Of the six, Cheney and Warren Gamble
were laid off again on December 30. Edwards laid off Cheney with the statement
that business was decreasing and that Edwards had selected "the best crew" to be
retained 28
In deciding the question whether Cheney was laid off on December 30 because he
had attended two union meetings, as the General Counsel contends, or because
he was less efficient than employees who were retained, as the Respondent contends,
I assume arguendo that valid business considerations dictated the layoff of two
employees on December 30. I believe, however, that Cheney was selected for
layoff because of his attendance -at union meetings. There are two reasons. First,
Cheney was a glasscutter. After his recall to work on December 22 he became the
principal glasscutter because Nichols, who was the most experienced man in that
work, remained in layoff status. One of the four new employees who were retained
in preference to Cheney is Dennis Dye who had done little glasscutting. Edwards'
testimony concerning his decisions on whom to lay off and whom to retain, recited
in footnote 29, supra, does not contain facts upon which one can intelligently con-
clude that Cheney was less qualified than the four employees who were retained.
Second, on December 22, Cheney was questioned by Edwards concerning the only
union meeting which Cheney had attended, and on the same day McDonough told
Cheney that Cheney could have a job as long as he desired if he would work and
help McDonough. One week later, Edwards questioned Cheney and Dye about
29 As recited, the Belo contracts guarantee pay for a minimum of 52 hours, weekly. If
Saturday, November 5, had been the end of a workweek, an employee who -already had
worked 52 hours could have gone hunting on November 5 without expectation of compen-
sation for that day. But November 5 was the second day of a workweek
2D Edwards testified that the layoffs of Cheney and Gamble were in anticipation of the
reinstatement of the men who had worked under Belo contracts and that his deciisons
on the layoffs were based on merit. ,
SAM THE WINDOW MAN 679
a union meeting of December 28, and Edwards learned that Cheney, but not Dye,
had attended. Edwards' reaction to Cheney's answers to his questions was to say,
"It looks like you or I didn't learn much by this." The quoted remark was coercive
because, reasonably construed, it meant that Cheney had not learned from past
events that he should not attend union meetings. In view of the Respondent's
numerous unfair labor practices, including particularly Edwards' invalid conduct,
plus the Respondent's determination to remove all union adherents from its payroll,
and the fact that Cheney was then the most experienced glasscutter, I find that
Cheney's discharge was violative of Section 8(a) (3) and (1).
1. The discharge of McLinn and Nichols
As recited above, on December 15 McLinn and Nichols were laid off with other
window shop employees, and on January 5 they were reinstated. On February 9
they were discharged along with two antiunion employees, Dye and Lafort. Earlier
that day Attorney Beaty met jointly with the four employees and others, and sep-
arately with McDonough, about an incident which had occurred in the plant. Beaty
then informed the four employees that they were discharged. The Respondent as-
serts that McLinn and Nichols were discharged because their union views and
actions caused them to become intolerable to other employees and to be disruptive
of discipline and production.
On the morning of the discharges, Nichols spoke to Foreman Witt about Koepsel
who was seeking reinstatement. Nichols asked if Witt knew that Koepsel was coming
to the plant to see McDonough. Witt answered in the negative. Later that morning,
Nichols asked Witt if he was curious about Koepsel's return to work. Witt lost his
temper, drew back his fist, and threatened to hit Nichols "between the eyes." Nichols
told Witt to cease threatening him, and there were no blows.30
In another incident that morning, Dye resented conduct by Nichols and McLinn.
According to Dye's testimony for the Respondent, those two union adherents
"started bringing up this union deal," said that it "looked to them like somebody
wouldn't be working" there any longer, and saying these words: "So long, it has been
good to know you." Dye testified also that he believed that the remarks of Nichols
and McLinn had been directed at him but that he did not "know for sure." The
record does not disclose how this incident came to management's attention.
Later that day, Witt talked to McDonough. According to the latter, Witt told
him of "a ruckus . . . [which] almost led to fisticuffs," and apologized to McDon-
ough.' After hearing Witt's report, McDonough, so he testified, called Beaty and
asked Beaty to come to the plant and make an investigation in order to advise
McDonough how to "put a stop to the bickering and agitation and problems that
we had been enduring in the shop for the last two or three months."
Beaty came to the plant and met with a group consisting of McDonough, Witt,
Nichols, McLinn, Dye, and Lafort. According to Beaty, he began his inquiry by
telling Witt and the employees that McDonough had told him that there had been
trouble in the plant that morning and by asking Witt for Witt's version. Witt's
30 The findings concerning the incident are based upon the uncontradicted testimony of
Nichols and McLinn Witt did not testify. After the Incident, Nichols swore out a
criminal complaint against Witt, alleging assault and battery. At the time of the hear-
ing herein, Witt had not been prosecuted The Respondent's explanation for not calling
Witt as a witness was that it did not wish testimony by Witt to be developed in this
ease which later might be used in cross-examining Witt in the misdemeanor case. The
Respondent moved that I restrict Witt's cross-examination to the area of any direct
examination which it might develop. The General Counsel objected, and I denied the
motion, pointing out inter alma that the fact that the transcript, which is a public docu-
ment, might be used in the prosecution of Witt was an inadequate reason for denying to
the General Counsel the right to examine Witt on any issue as to which Witt was qualified
to testify. Witt then was not called to the stand. With respect to the reason why
Witt lost his temper in speaking with Nichols, the incident was observed by McLinn
who testified that Witt said that he had been offended because he had thought that
Nichols, in effect, had called him a liar. On the other hand, Beaty testified that Witt
told Beaty that "Nichols had been goading him . . . for some little time," that Nichols
had spoken of the Union's forcing McDonough to reinstate Koepsel, that Witt "asked
Nichols to quit . . . 'shooting off his mouth' to the other employees . .. that Nichols
refused and that it continued . . . and [that Witt] lost his temper.. . Beaty's testi-
mony concerning remarks between Witt and Nichols, while admissible to show information
acquired by Beaty before Beaty gave advice to McDonough, is hearsay and of no probative
value in determining what occurred between Witt and Nichols outside Beaty's presence
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response, as recited by Beaty, is described in footnote 30, supra. Next, so Beaty,
testified, Nichols confirmed Witt's version, after which Nichols and Witt apologized
to each other. At that point, according to Beaty, he told the four employees that
there had been "reports concerning irritation, friction, loss of production, bull ses-
sions, all sorts of trouble in the plant between those four," whereupon "They all
admitted it." Beaty testified further that McLinn was the only one who denied
that production had been adversely affected by the friction, that Beaty learned from
the employees that McLinn and Nichols, advocates of the Union, and Dye and
Lafort, opponents, had been annoying or vexing one another, that such conduct
was displayed in Beaty's presence when Nichols called Dye, a youth of 20 years, "a
baby," and that the situation prompted Beaty to ask the four employees whether
they could work together without friction. All except Nichols answered affirma-
tively, according to Beaty, but then Nichols "started talking some more" and was
told by McLinn to "shut up," at which point Dye said that he could not get along
with Nichols and McLinn "if they kept talking to him about the union all the
time," and Lafort said that "all he wanted was to be left alone" and that, if not
left alone, "he wasn't going to say that he could get along with" Nichols and McLinn.
Beaty testified further that McLinn then said that Beaty should be sure that his
"advice to McDonough was right because there would be trouble if it was not," the
meeting "immediately degenerated" with a threat by Nichols to "get" Witt, a display
of anger by Lafort, and all employees "complaining to each other," whereupon
Beaty and McDonough left the room, and Beaty advised McDonough that there was
"absolutely no reason why he should not discharge all the people if he wanted to,
and that if he didn't he should just learn to live with it." McDonough decided to
discharge the four employees and asked Beaty to inform them. Beaty did so.
In addition to Beaty, the Respondent called McDonough, Dye, and Lafort to
testify concerning events at the meeting. McDonough's testimony on the subject was
brief. Expressed or implied in the testimony of Beaty and McDonough is the con-
tention that bickering and friction of a serious nature had existed among employees
for 2 or more months and that Nichols and McLinn were substantially at fault.
Before turning to the testimony of Dye and Lafort, it may be noted that Witt, the
foreman of employees in the bargaining unit, did not testify that there had been
any discordant relations among employees. Too, no representative of management
had ever reprimanded Nichols or McLinn for talking to employees.31
According to Dye, "people were all the time arguing or discussing" the Union, and
the "friction in the shop concerning this union and vote and everything" was due
"primarily" to Nichols and McLinn. Dye did not substantiate his testimony by
reciting any specific incident involving Nichols or McLinn before the day of the
discharges, however, and his memory was poor when he was asked to tell of any
occasion when anyone spoke about whether nonunion employees would lose their
jobs when the Union "came in." He answered that he remembered such a dis-
cussion but that he did not "remember just how it was said or when or who said it."
Dye did not testify that he had ever complained to management concerning alleged
conduct by Nichols or McLinn.
Lafort testified that "in the shop ... it seemed to" him that "everybody was at
each others' throats all day long," that there was "daily" bickering "From 8 to 5:30"
o'clock, that he was involved in the bickering, that he observed the bickering from
the day he began work during December until he was discharged, and that Nichols
and McLinn were "trying to agitate everybody in the place to keep them aroused all
day long. . . . Lafort could not recall anyone else who "agitated." In substantiation
of his testimony, Lafort remembered only one incident, an occasion when Nichols
and McLinn allegedly told him that if he did not join the Union he would lose his
job because he did not have seniority. It is apparent that Lafort and Dye exag-
gerated. Lafort's exaggeration is illustrated further by the fact that Nichols and
McLinn were not at work for a substantial period covered by Lafort's testimony.
In contrast to his testimony that the bickering was constant from the day he began
work, December 12, and that Nichols and McLinn were the only "agitators," the
record shows that on December 15 the window shop employees were laid off, that
on December 23 Lafort was reinstated, and that on January 5 Nichols and McLinn
were reinstated. Of the 40 working days between Lafort's reinstatement and dis-
charge, December 23 to February 9, inclusive, Nichols and McLinn were in layoff
status for about on-fourth of the time.
We turn to the Respondent's evidence concerning the employees', answers to
Beaty's question whether they could work without friction. As we have seen, Beaty
31 Nichols and McLinn so testified without contradiction.
SAM THE WINDOW MAN 681
testified that at first all but Nichols answered affirmatively but that within a few
moments Dye and Lafort changed their answers and said that they could not do so
if Nichols and McLinn continued to speak to them about the Union. McDonough
testified that McLinn also said that they could not work together in harmony.
Lafort testified that all four said that they could not work if conditions then current
should continue. Dye recalled that he answered that the employees could work
together if the subject of the Union were not "brought up in the shop," but he could
not recall the answer of anyone else. On the other hand, Nichols testified for the
General Counsel that Beaty asked not only whether the employees could get along
in the plant but also whether they could cease talking about the Union, to which he,
Nichols, replied in the affirmative, pointing out that the employees had kept quiet
about the union movement until the Union's representatives asked McDonough for
recognition , and saying that they could be quiet again . McLinn testified for the
General Counsel that he replied in the affirmative also.
In determining whether Nichols and McLinn were invalidly discharged, it is un-
necessary to lengthen this document by reciting fully wherein their testimony con-
cerning Beaty's investigation varies from the testimony for the Respondent. A num-
ber of considerations dictate the conclusion that Nichols and McLinn were invalidly
discharged. First, the Respondent's testimony concerning alleged unprotected activi-
ties by these employees is exaggerated and unpersuasive. In addition to the sweeping
but unsubstantiated assertions of Dye and Lafort described above, there is the testi-
mony by McDonough that there had been "bickering and agitation and problems
in the shop for the last two or three months" and there is the testimony by
Beaty that he had received "reports concerning irritation, friction, loss of production,
bull sessions , all sorts of trouble in the plant between" Nichols and McLinn, on the
one hand, and Dye and Lafort, on the other. If Nichols and McLinn were "pri-
marily" responsible for friction, as Dye testified, or if they were "trying to agitate
everybody" day after day, as Lafort testified, and if the alleged conduct of Nichols
and McLinn was outside the protection of the Act, surely the Respondent could
have substantiated its all-embracing assertions by pointing to specific incidents of un-
protected conduct over a period of 2 or more months. Surely too the Respondent
would have reprimanded the offending employees before the day of the discharges.
The facts show, however, that neither Nichols nor McLinn was reprimanded or
warned, that Witt did not testify that he experienced any difficulties as a supervisor,
that there is no evidence that Witt reported any difficulties to McDonough before
February 9, and on that day his report was accompanied by an apology to Mc-
Donough for his own conduct in assaulting Nichols. In sum , the Respondent's
evidence concerning specific activities by Nichols and McLinn, allegedly unpro-
tected, is confined to the testimony of Dye and Lafort, already discounted, and to
Beaty's testimony that in his presence Nichols called Dye "a baby." 32
Second, in view of the unsubstantial nature of the Respondent's evidence that
Nichols and McLinn had engaged in unprotected activities, the testimony of Mc-
Donough that he wanted to "put a stop to the bickering and agitation and problems
that we had been enduring in the shop for the last two or three months" has signifi-
cance when considered in the light of Nichols' and McLinn's protected activities and
McDonough's hostility thereto. When the union activity began, Nichols was effec-
tive in inducing employees to sign union cards. Nichols' and McLinn's standing as
union adherents is shown by (1) their selection by employees as a committee to
notify McDonough of the employees' continued desire for union representation, (2)
McDonough's selection of Nichols and McLinn to convey to the Union's representa-
tives McDonough's suggestion that the representatives come to the plant on Decem-
ber 19, and (3 ) the numerous coercive remarks to Nichols and McLinn as, for
instance , (a) Edwards' threat to "make it a lot rougher on" Nichols; (b) Mc-
Donough's remarks to Nichols while the latter was in layoff status that McDonough
could "be just as dirty as you guys" who had "hit [him] in the back," that
McDonough did not "have to keep you guys on the payroll," and that McDonough
had "spent over $700 for lawyers fighting the union"; and (c) McDonough's remark
There is testimony by the Respondent, dented by Nichols, that on February 9 Nichols
said that a "war" had been underway in the plant for 3 months The point of this
testimony is that Nichols thereby acknowledged that serious friction existed Assuming
that Nichols made the remark, I do not believe that it aids the Respondent's case. A bare
statement that a "war" had been in progress is not necessarily to be construed as a
"war" between union and antiunion factions of employees Such a statement may just
as reasonably be construed as a reference to McDonough's efforts to coerce the employees
into repudiating their designations of the Union to represent them.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to McLinn while the latter was in layoff status that "a smart man realizes his
mistakes."
Third, I cannot credit the Respondent' s contention that Nichols and McLinn told
Beaty, in answer to Beaty's question, that they could not work with Dye and Lafort
without friction. While two witnesses for the Respondent, McDonough and Lafort,
testified that McLinn gave such answer, two other witnesses for the Respondent,
Beaty and Dye, did not so testify, and McLinn denied that he said that he could
not work without friction. Moreover, Nichols' like denial is accompanied by
persuasive testimony that Beaty also asked if the employees could cease talking about
the Union and that he said to Beaty that the initial union activities had been kept
quiet and that he could keep quiet again . I do not believe that Nichols and McLinn,
who had been threatened repeatedly and laid off because of their union activities,
would have said that they could not conduct themselves properly in the plant.
Fourth, the Respondent places substantial reliance upon Beaty's advice to Mc-
Donough that there was "absolutely no reason why he should not discharge" the
four employees. Such advice is not a meritorious defense. We do not have here a
situation where an employer, just before it discharged employees, was desirous of
not violating the law and in good faith sought advice from his attorney as to his
rights and responsibilities under the Act. McDonough's earlier conduct belies that
situation. Surely Beaty's advice did not give McDonough a meritorious basis for
the discharges if such a basis did not already exist, and we have seen that such a
basis did not exist.
Fifth, the fact that McDonough discharged Dye and Lafort, antiunion employees,
simultaneously with Nichols and McLinn does not establish McDonough's bonafides
in discharging the union adherents. I believe that Dye and Lafort were victims of
McDonough's hostility toward Nichols and McLinn; that is, that McDonough dis-
charged Dye and Lafort in an effort to give plausibility to his professed reason for
discharging the two union adherents. I find that Nichols and McLinn were dis-
charged in violation of Section 8(a) (3) and (1).
IV. THE EFFECr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, to the extent found
to have been invalid, occurring in connection 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 comerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Union represented a majority of the employees in the
appropriate unit and that the Respondent refused to bargain collectively. Accord-
ingly, I shall recommend that the Respondent, upon request, bargain collectively
with the Union as the exclusive representative of the employees in the appropriate
unit. I shall recommend also that the Respondent offer Cheney, McLinn, and
Nichols immediate and full reinstatement to their former or substantially equivalent
positions (The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827), without prejudice to their seniority or other rights
or privileges, and that the Respondent make whole Cheney, Koepsel, McLinn, Mit-
chell, Nichols, and Rickards, for any loss of pay they may have suffered as a result
of the discrimination against them, by payment to each of them of a sum of money
equal to that which he normally would have earned from the date of the discrimina-
tion against him 33 to the date of a proper offer of reinstatement,3 4 less his net earn-
ings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period, the
payment to be computed on a quarterly basis in the manner established in N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. I shall recommend also
"The dates of discrimination are- 'Cheney on December 30, 1960; Koepsel on Septem-
ber 24, 1960; Mitchell and Rickards on December 15, 1960; and McLinn and Nichols on
December 15, 1960, and again on February 9, 1961
84Backpay for Koepsel shall terminate as of February 14, 1961, and shall not include
any days between September 24, 1960, and February 14, 1961, when his physician pro-
hibited his working at all. Backpay for Mitchell and Rickards shall terminate as of
January 5, 1961 . Backpay for McLinn and Nichols during the period of their first dis-
crimination shall terminate as of January 5, 1961.
YUBA CONSOLIDATED INDUSTRIES, INC. 683
that the Respondent preserve and upon request , make available to the Board or its
agents, for examination and copying , all payroll records , social security payment
records, timecards , personnel records and reports, and all other records necessary
to analyze the amounts of backpay and the rights to reinstatement under the terms
.of these Recommendations.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shal recommend further that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing
Company, 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
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. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All production and maintenance employees at the Respondent 's Wichita plant,
excluding office clerical employees , salesmen , servicemen , installation men, guards,
watchmen , and supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
3.. On September 15, 1960, the Union was, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the purposes of col-
lective bargaining.
4. By refusing to bargain collectively, by discouraging membership in a labor
organization through discrimination in employment , and by interfering with, re-
straining , and coercing employees in the exercise of their rights under the Act, the
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 ( a) (5), (3), and ( 1) and Section 2 ( 6) and (7).
5. The allegations of the complaint that the Respondent invalidly discharged
Floyd Ward have not been sustained.
[Recommendations omitted from publication.]
Yuba Consolidated Industries, Inc. and G. F. Miller
International Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO , Local Union No. 321 [Yuba Consoli-
dated Industries, Inc.] and G. F. Miller
Meehleis Steel Co. and G. F. Miller
International Association of Bridge , Structural , and Ornamen-
tal Iron Workers, AFL-CIO, Local Union No . 321 [Meehleis
Steel Co.] and G . F. Miller. Cases Nos. 26-CA-1044-1, 26-CB-
154-1, 26-CA-1046, and 26-CB-155., March 29, 1962
DECISION AND ORDER
On November 20, 1961, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
in the consolidated complaint and recommending that the complaint
be dismissed in its entirety, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Fanning, and Brown].
136 NLRB No. 60.