The Rangaire Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1966

157 N.L.R.B. 682 (N.L.R.B. 1966)

682 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
[The Board denied the petition for unit clarification in Case No.
18-UC-3 and dismissed the petition filed in Case No. 18-RM-542.]
The Rangaire Corporation and Allied Industrial Workers of
America , AFL-CIO. Cases Nos. 16-CA-2164 and 16-CA-2199.
March 15, 1966
DECISION AND ORDER
On October 12, 1965, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceedings, finding that Respondent
had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that Respondent did
not engage in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, Respondent and the Charging Party filed exceptions to the
Trial Examiner's Decision, and Respondent filed a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, as modified below.
1. The Trial Examiner found upon uncontradicted evidence that
Respondent violated Section 8(a) (1) of the Act by Plant Manager
Pegues' conversation with employee Rosa Myers on Septeni-
ber 22, 1964, during which Pegues questioned Myers about her union
I Respondent also filed a motion to reopen the record on the grounds that after the
hearing was closed , Respondent and the Charging Party continued collective bargaining
which has resulted in execution of collective -bargaining agreements (attached as ex-
hibits to the motion). Respondent argues that the agreements , embodying as they do
Respondent 's positions on bonuses and wages , are evidence contrary to the Trial Exam-
iner's findings that Respondent 's proposals on these matters were not made in good faith
The General Counsel's response to Respondent 's motion , with conflicting exhibits and
affidavit, opposes reopening.
We deny Respondent 's motion. As we do not adopt the Trial Examiner's finding of
overall bad -faith bargaining by Respondent and do not adopt the related findings as to
Respondent 's bad faith in presenting its bonus and wage positions , Respondent 's proffered
evidence is irrelevant.
157 NLRB No. 62.
THE RANGAIRE CORPORATION 683
activities and the sympathies of fellow employees and informed her
that the union meeting of the night before had been under surveil-
lance. We adopt this finding.2
2. The Trial Examiner found that Respondent violated Section
8 (a) (5) and (1) of the Act by unilaterally changing the time of pay-
ing its annual vacation bonus during 1964. In previous years this
bonus was given just before the vacation period. Although Respond-
ent was actually involved in negotiations with the Union in
August 1964, Respondent unilaterally decided not to pay the bonus
before the annual vacation period began and did not even notify the
Union of the decision. Respondent gave no explanation for this con-
duct. After union protests, the bonus was given to the employees
after their vacations. We agree with the Trial Examiner that
Respondent's action in this particular violated Section 8(a) (5) and
(1) of the Act.3
3. We also agree with the Trial Examiner that during the 1964
negotiations with the Union, Respondent committed two separate
violations of the Act in response to the Union's efforts to bargain about
Respondent's existing pension plan. These findings are of particular-
significance for their bearing on the issue of whether the subsequent
strike was an unfair labor practice strike, and they therefore are fully
discussed here.
(a) The credited testimony 4 establishes that during the Septem-
ber 14 negotiating session Respondent's chief negotiator, Lincoln, told
the Union's negotiator, Backinger, that he understood that Respond-
ent's existing pension plan excluded employees represented by a union.
Such a provision would under settled law violate Section 8(a) (1) of
the Act.5 The novel aspect here is that Lincoln's statement, either
deliberately or mistakenly, materially misrepresented the language of
the plant, which actually excluded ". . . any person covered by a col-
lective bargaining agreement entered into with the employer, -which
agreement does not provide for coverage of such person by this plan."
2 Gal Tex Hotel Corporation, d/b/a Admiral Semmes Hotel and Motor Hotel, 154 NLRB
338; Southern Coach h Body Co., Inc., 135 NLRB 1240, 1241
8 See , generally , N.L.R.B. v. Bonne Katz , etc., d/b/a Williamsburg Steel Products Co.,
369 U.S. 736.
' Witnesses testified somewhat differently as to what was said by Lincoln on Septem-
ber 14. Thus , the Trial Examiner was required on this point , as he was on a number of
others, to resolve credibility issues. Respondent attacks the Trial Examiner 's determina-
tion as to what Lincoln said on September 14, as well as attacking other credibility de-
terminations . We disturb none of the credibility findings , for we are not convinced by a
clear preponderance of the relevant evidence that any such finding is incorrect . Stand-
ard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F. 2d 362 (C A 3). We consider
it appropriate specifically to adopt the Trial Examiner's finding that no bargaining over
contract terms took place on October 23.
5 E.g., Toffenetti Restaurant Company, Inc., 136 NLRB 1156, 1170 , enfd. 311 F. 2d 219
( CA. 2), cert. denied 372 U.S. 977.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The differences between the actual exclusion in the plan and the
exclusion described by Lincoln are that under the plan unit employees
continued to be covered during negotiations rather than having been
excluded since the April certification , and that, under the plan, con-
tinuation of coverage was left to bargaining rather than being com-
pletely foreclosed . Accordingly , we do not find that the actual exclu-
sion in the plan is unlawful . The issue is whether the statement that
Respondent 's pension plan was unlawful , when in fact it was not,
violated Section 8 ( a) (1) as found by the Trial Examiner.
We adopt this finding. A plainly misleading statement of fact
which purports to exclude the possibility of bargaining over continua-
tion of an existing condition of employment interferes with the pro-
tected right of employees to engage in collective bargaining . It will
be shown that Lincoln's statement , necessarily taken at face value by
the Union for reasons set out in the following paragraph , profoundly
interfered with the bargaining process. Since the ground given for
removing the possibility of continuation of the benefit was exercised by
unit employees of a Section 7 right to select a union to represent them,
Lincoln's statement also tended to coerce employees in exercising this
right. For these reasons, we find the September 14 statement by
Lincoln as to the terms of the exclusion in the pension plan to have
violated Section 8 ( a) (1).
(b) Union Representative Backinger's immediate reaction to Lin-
coln 's statement on September 14 was to request a copy of the pension
plan. Lincoln responded that since unit employees were excluded,
their representative did not need a copy of the plan. Despite repeated
requests by Backinger in October and November, a copy of the plan
was not supplied to him until December. The initial refusal by
Respondent to supply the Union with a copy of the plan and the sub-
sequent delays in supplying a copy violated Section 8 ( a) (5) and (1)
of the Act .6
4. We adopt the ultimate finding of the Trial Examiner that the
strike of October 26 was from its beginning an unfair labor practice
strike. We do not, however , adopt the reasons advanced by the Trial
Examiner in support of this finding; we rest our finding solely upon
the reasons now to be set forth.
As indicated previously , negotiations began in May 1964 and the
Union led a strike of Respondent 's employees on October 26.7 A union
ON ' L.R .B. v. Truitt Mfg. Co., 351 U.S. 149 ; The Electric Furnace Co . and Salem
Fabricating c6 Machine Co., 137 NLRB 1077, enforcement denied on other grounds 327
F. 2d 373 (C.A. 6).
7 The strike was terminated by the Union on November 25 and striking employees were
reinstated at various dates thereafter . A number of strikers , however , had been replaced
by Respondent during the strike, and many of those who were reinstated were placed in
lower paying fobs in which they were considered as "new" employees , at least for wage
classification purposes.
THE RANGAIRE CORPORATION 685
membership meeting was held on September 21 at which Backinger
announced to Respondent's employees their, exclusion from the pension
plan and Respondent's refusal to give him a copy of the plan. Back-
inger also stated that Respondent-had committed other acts which he
termed unfair labor practices, two of which we have found to have
been such. The employees voted a "protest"' at this meeting rather
than taking a strike vote.
On October 21 another meeting of Respondent's employees was held
by the Union. At this meeting the employees voted to go on strike.8
Before the strike vote, Backinger explained to the employees Respond-
ent's latest proposals on the unresolved economic issues. He also told
the employees that their pension plan was discontinued and that they
had received nothing in return. Backinger further stated' that
Respondent had not supplied him with a copy of the pension plan,
and he informed the employees of the interrogation of Rosa Myers.
Backinger also discussed certain of Respondent's other conduct that
he considered to constitute unfair labor practices, but which in fact
-did not violate the Act.
Thus, employees voted to strike after consideration, inter alia, of
Respondent's unfair labor practices and in the belief created by Lin-
,coln that coverage under the plan had been unlawfully terminated.
Moreover, it is clear that the status of the pension plan was at the
inception of the strike a central issue, perhaps the central issue, sepa-
rating the parties. At the last two negotiating sessions prior to the
strike-those of October 19 and 20-thee parties devoted most of their
attention to bonuses (Christmas and vacation) and the pension plan.
Respondent was offering a wage increase to compensate for discon-
tinuance of the bonuses and a wage increase equal to current employer
contributions to compensate for discontinuance of coverage under the
pension plan. The Union did not consider Respondent's position on
these matters acceptable .9 On October 26 Backinger, replying to a
question from Lincoln, said the strike would end if Respondent would
continue past benefits (bonuses and pension) and correct certain
alleged unfair labor practices. Respondent first offered to continue
the bonuses in effect on October 27. Backinger responded by accept-
ing the proposal and stating that the strike would now end if Respond-
end would do the same as to the pension plan. Lincoln replied that
he could not do this. On October 28 a new issue arose when Respond-
ent began to replace strikers. After Respondent announced that eight
strikers had been replaced, Backinger said that if Respondent would
either continue the pension plan in effect or pay employees for past
contributions and would reinstate all strikers, employees would return
8 Another union meeting was arranged on short notice for October 24 In order to fix
She exact time that the strike would take place.
9 See text discussion , infra.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work. On November 10 Respondent first offered to continue the
pension for unit employees as in the past. Backinger responded that
the only remaining issue now was reinstatement of replaced strikers.
Respondent did not change its position on this issue and the strikers
unconditionally offered to return to work on November 25.
The foregoing demonstrates that Respondent's position on the pen-
sion plan played a large part in the decision to strike. And it is
equally clear that both Respondent's position and Backinger's response
to it were influenced by Lincoln's statement that the plan excluded
union-represented employees. Moreover, Respondent's refusal and
delay in giving Backinger a copy of the pension plan prevented Back-
inger from realizing that the plan was being continued in effect and
could readily be continued in effect in the future, for he thought cover-
age under the plan had already been discontinued by its own terms and
that these terms precluded future coverage.10 Quite apart from the
fact that Backinger and employees were influenced at least in part to
strike by what they viewed and we have found to be Respondent's
unlawful conduct, what Backinger and employees considered to be a
deadlock over the "economic" issue of the pension plan was in fact a
deadlock created by Respondent's false information and refusal to
allow Backinger to verify the information. It would perhaps be
conjectural to say that employees would not have struck if they had
10 On October 2 Backinger wrote Lincoln to complain , inter alia, of the "Discontinuance
of the employees ' pension plan and the Company ' s contribution to such plan ." This com-
plaint is of course consistent with and corroborative of the finding that Lincoln had
previously told Backinger that the plan excluded union -represented employees . By letter
of October 12, Lincoln responded as follows:
1. The Company has taken no action to discontinue the employees ' pension plan
we explained for your information that the Rangaire Pension Trust , which has been
in force for some years , excludes from coverage persons who are members of any
bargaining unit, unless a collective -bargaining agreement specifically includes cover-
age. Please be assured that we are perfectly willing to bargain with you on this
coverage ; however , until a contract is agreed on, the employees presently in bargain-
ing units are automatically excluded from the Pension Trust Agreement The pur-
pose for mentioning the Pension Trust provisions was in order to inform you and
provide the opportunity for bargaining on the subject.
We do not find that this letter cleared up the misunderstanding already created by Lin-
coln. First of all, the letter misstates the terms of the trust , for the trust has no refer-
ence to "members of any bargaining unit," but excluded employees "covered by a collective-
bargaining agreement ." The misstatement is critical here, for the difference is whether
employees were or were not already excluded from coverage . And in touching on this
point, Lincoln's letter is wholly ambiguous It opens by saying that "no action to dis-
continue" coverage has been taken , and later says that "employees presently in bargain-
ing units are automatically excluded " until coverage is provided by contract Standing
alone this letter hardly makes it clear that coverage has not been terminated; in the
context in which it was written , where Backinger has already been told that coverage
was terminated , it certainly did no more than perpetuate the false impression that cov-
erage had already been automatically terminated as to employees in the bargaining unit.
doubt the letter does indicate that coverage is subject to negotiation . We note, how-
ever, that Lincoln effectively placed the Union in the position of bargaining for pension
coverage as a benefit sought by the Union over and above current benefits , while if the
truth were known at that time, what the Union sought was simply a continuation of
existing benefits. Thus , Respondent 's unfair labor practices in connection with pension
coverage continued to create a deadlock over an "economic " issue.
THE RANGAIRE CORPORATION 687
known that they had not in fact been excluded from coverage, that
such coverage was continuing during negotiations and could (subject
to Respondent's agreement) continue in the future. But there can be
no question that Respondent's unlawful conduct resulted in much
bargaining over the pension plan that could only be pointless since it
was based upon false premises, that such bargaining did not produce
agreement, and this failure to agree and other unlawful conduct by
Respondent led to a strike. Accordingly, we find that the strike was
caused and prolonged by Respondent's unlawful conduct.11 Thus,
when the striking. employees subsequently unconditionally applied for
reinstatement, Respondent was obligated to reinstate the strikers
instead of reinstating as it did only those strikers who had not been
replaced by persons hired during the strike.
5. The Trial Examiner found that Respondent's general course of
bargaining was conducted in bad faith in violation of Section 8(a) (5)
and (1 ) of the Act. We do not adopt his findings,12 nor do we adopt
the following findings and views of the Trial Examiner upon which
the overall bad-faith finding was to some extent predicated.
(a) Respondent's course of bargaining is likened by the Trial
Examiner to that before the Board in General Electric Company,13
and that case is cited as authority for the Trial Examiner's finding of
bad-faith bargaining. Suffice it to say, the language quoted by the
Trial Examiner from that decision is inapplicable here since most of
the factors underlying the Board's finding in General Electric are not
present in this case.
(b) The Trial Examiner finds in effect that Respondent's initial
proposals with respect to fringe benefits were inconsistent with good-
faith bargaining because Respondent could not reasonably believe
they would be acceptable to the Union. Whether or not Respondent
u Mastro Plastics Corp ., and French-American Reeds Mfg. Co ., Inc. v. N.L.R B., 350
U.S. 270, 278 ; NL.R.B. v. Deena Artware, Inc ., 198 F. 2d 645 , 651 (C.A. 6), cert. denied
345 U . S. 906; Bud's Cabinet & Fixture Co., et al., 154 NLRB 1168
As stated in the text , reinstatement of strikers replaced during the course of the strike
became a significant issue between the parties and itself prolonged the strike for some
time. This fact does not bear upon the text discussion of whether the strike was an
unfair labor practice strike before reinstatement came into the picture. If the strike
was originally an unfair labor practice strike, as we find, then Respondent was obligated
to reinstate all strikers regardless of persons hired during the strike Consequently,
Respondent 's refusal to reinstate all strikers on this basis was an unfair labor practice
also, and we have adopted this finding of the Trial Examiner . It follows that insofar
as the strike was prolonged by the reinstatement issue , it was prolonged by another unfair
labor practice of Respondent
'2 we do not find adequate support in the record for the finding that Respondent 's over-
all bargaining conduct violated Section 8(a)(5) of the Act. We also note, however, that
the complaint herein alleges that Respondent violated Section 8(a) (a), not by its bargain-
ing in general , but by specific acts. Moreover , the General Counsel during the course of
the hearing in this case stated that lie was not attempting to prove that Respondent
engaged in "surface bargaining" which, in context , appears to us to demonstrate that
Respondent's overall conduct was not being litigated. -
- 13 150 NLRB 192.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can be said to have reasonably believed its initial proposals would be
acceptable, a finding we need not make, we do not find any support for
a finding of bad faith based upon the substance of these proposals.
(c) The Trial Examiner states that the Union's rejection of
Respondent's proposal to convert its bonus and pension plan into wage
increases was based upon Respondent's refusal to grant any increase
above existing wage ceilings for any classification and therefore many
employees already receiving the maximum wage for their classification
would receive no increase. The record shows, however, that Respond-
ent agreed to ignore existing ceilings for purposes of these proposed
wage increases so that each employee would in fact receive the wage
increase proposed even if the employee would therefore receive a wage
above the ceiling for his classification. What the Union in fact
objected to was Respondent's refusal to raise wage ceilings so that no
employee would receive a wage in excess of his ceiling. The refusal
meant that employees earning above their ceilings would benefit little
or not at all from future increases in the ceilings, and this was the form
in which future wage increases were to be granted.
(d) We find, contrary to the Trial Examiner, that the record does
not adequately support a finding that Respondent's manner of rein-
stating strikers was unlawful or that it provides support for a find-
ing that Respondent's overall bargaining violated Section 8(a) (5) of
the Act. Nor do we adopt the Trial Examiner's suggestion that
Respondent discriminated against union officers in reinstating the
strikers.
6. Respondent has excepted to the Trial Examiner's finding that
alleged misconduct engaged in by strikers C. D. Myers and Delmar
West does not disqualify them from reinstatement.
(a) We adopt the Trial Examiner's findings as to Myers. 14 The
credited testimony establishes that Myers berated Plant Manager
Pegues in front of the plant during the strike and in the process cursed
Pegues. This single instance of Myers' use of profanity during the
strike does not, we find, outweigh the interest in affording reinstate-
ment to Respondent's employees engaged in a strike precipitated by
Respondent's antecedent unfair labor practices. Picket line profanity
is not to be condoned merely because it so frequently occurs, but cer-
tainly in a strike caused by Respondent's unlawful conduct, an isolated
instance of an embittered employee's verbal abuse of a management
official is not, in light of Respondent's unlawful conduct, misconduct
of such seriousness as to bar reinstatement 15
14 The Trial Examiner discredited testimony purporting to show that Myers used a
slingshot to shoot tacks and nails onto Respondent 's parking lot, and there is no reason
to disturb this credibility finding.
15Kohler Co , 148 NLRB 1434, 1444-1448, enfd. 345 F. 2d 748 ( C.A.D.C.), cert. denied
382 U.S. 836 , and cases cited therein.
THE RANGAIRE CORPORATION 689
(b) We reverse the Trial Examiner's finding that Delmar West did
not disqualify himself for reinstatement by assaulting the driver of
a truck attempting to enter upon Respondent's premises. West
engaged in an unprovoked attack, along with several other unidenti-
fied persons, upon the driver, and no conduct of Respondent provides
a reason to require reinstatement despite West's conduct. We consider
it irrelevant that after the assault the driver shook hands with West;
under the circumstances, this may have been a prudent action to have
taken. We also find that Respondent did not waive or condone the
misconduct by denying reinstatement to West upon the ground that
no position was available. Since no job was in fact open, Respondent
need not have told West that if a job were open, West would not be
hired anyway because of his misconduct. We find that West's mis-
conduct bars a reinstatement order in his case.
MODIFIED CONCLUSIONS OF LAW
Delete conclusion of law No. 5 from the Trial Examiner's Decision
and renumber subsequent conclusions of law accordingly.
THE REMEDY
Since, contrary to the Trial Examiner, we have not found that
Respondent's overall bargaining conduct violated Section 8 (a) (5)
and (1) of the Act, and in view of the circumstances of this case, we
do not adopt the recommendation of the Trial Examiner that
Respondent be required generally to bargain in good faith with the
Union.
We have found that striking employee Delmar West engaged in
misconduct disqualifying him from inclusion in the reinstatement
remedy afforded the other unfair labor practice strikers, and we there-
fore shall not require Respondent to reinstate him.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Reletter paragraph 1(e) as 1(a), and 1(d) as 1(e).
[2. Reletter paragraph 1(a) as 1(d) and insert the words "By con-
duct set out in paragraphs 1(e) and 1(f)" before the word "refusing"
at the beginning of the new paragraph 1(d) .
[3. In paragraph 2(b), insert the words "except Delmar West,"
between the date "November 25, 1964," and the word "dismissing."
[4. In the ninth paragraph of the notice insert the words "except
Delmar West," between the date "November 25, 1964," and the word
"immediate."]
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The consolidated complaint 1 pursuant to Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), heard by Trial Examiner Joseph I.
Nachman at Cleburne. Texas, on March 17, 18, and 19, 1964, involves allegations
that Rangaire Corporation (herein called Respondent or Company),2 violated Section
S(a) (1) and (5) of the Act by various acts of restraint and coercion, and by engaging
in bad-faith bargainng with Allied Industrial Workers of America, AFL-CIO 3
(herein called the Union), the certified representative of Respondent's employees in
the Roberts and Cobell Divisions, and violated Section 8(a)(3) of the Act by failing
to reinstate to their former jobs a number of employees who engaged in a strike
allegedly caused or prolonged by Respondent's unfair labor practices. Alternatively,
the General Counsel urges that even if the strike engaged in by Respondent's employees
be held to have been at all times economic in nature, Respondent discriminated against
many of the strikers by the manner in which it selected the strikers whom it permitted
to return to work, and the jobs assigned to and the pay rates given them. Independent
violations of Section 8 (a) (1) of the Act are also alleged.
At the hearing, the parties were permitted to adduce evidence pertinent to the issues,
to examine and cross-examine witnesses, and to argue orally on the record. Oral
argument was waived. Briefs submitted by the parties have been duly considered.
Upon the entire record in the case, including my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT 4
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background and setting of the issue
In January 5 the Union began an organizational campaign among Respondent's
employees. On April 20 the Board conducted an election in the two units involved,
and on or about April 28 certified the Union as the majority representative of both
units. Following the certification the parties had a total of at least 30 contract nego-
tiating sessions,6 17 of which were prior to the strike which began October 26. This
I Issued January 18, 1965, and amended March 2, 1965, upon charges filed October 22,
1964, and amended November 5, 1964, in Case No. 16-CA-2164. In Case No. 16-CA-
2199, the original charge was filed December 2, 1964, and amended December 22 and 29,
1964, and February 19,1965.
2 The Company operates several divisions, including the Roberts Division and the
Cobell Division, the only two involved in this proceeding. At the hearing Respondent
moved for a severance of the complaint contending that the case should be heard separately
as to Roberts and Cobell because these two divisions operate separately, have separate
managers and separate labor policies, and bargained separately with the Union Involved.
I denied this motion, holding that under the admitted facts the two divisions constitute
one employer. Respondent has not renewed this contention in its brief, and presumably
has abandoned the same.
s At the hearing the complaint was amended to refer to the International as the cer-
tified Union, and to delete all reference to Local 424, which consists of Respondent's
employees.
4 No issue of commerce or labor organization is presented. The complaint alleges and
the admissions in the answers filed by Respondent establish the facts to prove both of
those elements. I find these facts to be as pleaded. Respondent also admits that on or
about April 28, 1964, the Board certified the Union as the collective-bargaining repre-
sentative of its maintenance and production employees, the employees at the Roberts
Division being designated as unit A, and those at its Cobell Division being designated as
unit B. Respondent raises no question regarding the validity of the Board's certification.
According, I find the Union to be the majority representative of both units set forth in
paragraph 8 of the complaint, and also find said units to be appropriate.
5 This and all dates hereafter mentioned are 1964 unless otherwise stated.
9 Negotiations were carried on separately for the Roberts and Cobell Divisions, but gen-
erally when a Roberts meeting was in progress, one or more management officials of
Cobell sat in, though not necessarily participating in the discussion. Charles J. Lincoln,
Respondent' s counsel , was its chief negotiator at all bargaining sessions Because som'e'.
contract provision would be common to both divisions, such matters if agreed upon at a
session with one of the divisions, would be adopted and not further discussed at the bar-
gaining session with the other division. The parties have stipulated that Roberts bar-
THE RANGAIRE CORPORATION 691
strike was subsequently abandoned , and by letter dated and delivered to Respondent
on November 25 the Union , on behalf of the employees , requested reinstatement to
their former or other available employment.
In addition , the General Counsel contends that during the bargaining negotiations,
and prior to the strike , Respondent made several unilateral changes in terms and con-
ditions of employment , interrogated an employee concerning her own and the union
activities of fellow employees , and told her that a union meeting held the preceding
day had been under surveillance.
B. Current facts
1. Chronology of events with emphasis on the bargaining sessions
a. The meeting prior to September 14
Prior to the first meeting between the parties on May 28 (which was a Roberts
meeting ), International Representative Backinger furnished Respondent , separately
for Roberts and Cobell , complete contract proposals . These separate proposals con-
tained a complete wage schedule , and provided , inter alia , for a checkoff , seniority
on a plantwide basis, health and welfare benefits , and that all conditions of employ-
ment in effect prior to the Board election , including vacation bonus, Christmas bonus,
and pension plan, should remain in effect unless changed by agreement of the parties.
At the May 28 meeting the Union handed Respondent a letter dated May 27, naming
the Union 's officers and its bargaining committees.?
The Roberts meetings on May 28 and June 3 and 9, and the intervening Cobell meet-
ing on June 2, were devoted to a reading and general discussion of the Union's con-
tract proposals . Lincoln, Respondent 's attorney and chief negotiator , admitted that
during these early meetings he told the union representatives that he wished to get all
of the nonmoney items "out of the way " before discussing wages 8 Lincoln also
admits that early in the negotiations , and on numerous other occasions during the
negotiations , he told the Union that he was old-fashioned about wages and did not
believe in blanket wage increases because he was convinced that the laws of supply
and demand controlled wages, and as Respondent was able to fill its labor require-
ments at the rates it was paying, those rates were adequate and proper , and "that
[Respondent ] did not intend to change them unless [the Union] could show us some
particular out of line classification."
In mid-June , Respondent gave the Union separate contract proposals for the
Roberts and Cobell Divisions . These proposals , which did not contain a wage sched-
ule, provided , inter alia , for seniority on a departmental basis, and "that such matters
as vacation bonuses, Christmas bonuses, and pension plan are given at the sole discre-
tion of the employer and are not required by the terms of this agreement."
At these early sessions , the subject of seniority was admittedly discussed at a number
of meetings . Respondent took the position that it could not agree to plantwide
seniority because that could result in people being entitled to particular jobs for which
gaining sessions were held on May 28, June 3, 9, and 30, July 16, August 13 and 14,
September 14 and 29, October 20, 26, 27, and 28, November 10, December 3, 16, and 30,
and January 10, 11 , 27, and 29 ( the last four being 1965 ), and that Cobell meetings were
held on June 2 and 18 , July 1, August 28, September 15, October 19, 20, and 28 , Novem-
ber 10, December 3, and January 27 and 28 ( the last two in 1965 ). At each of the
Roberts sessions Bert Backinger , the Union ' s International representative , and a commit-
tee of Roberts employees were present . At the Cobell sessions a committee of Cobell em-
ployees accompanied the International representative . Respondent contends that a fur-
ther meeting was held on October 23 at which only Backinger was present on behalf of
the Union , and that at this meeting Backinger made certain statements and agreed to
certain proposals . Such statements and agreements are denied by Backinger. The
credibility issues thus raised will , to the extent necessary , be hereinafter resolved.
7The persons so identified by the Union, and the office held by each , were as follows:
President , E. J. Ragsdale ; vice president , George Kirkham ; recording secretary , Dorothy
Ragsdale ; financial secretary -treasurer , Jackie Willingham , trustees : N. B. Matthews,
Delmar West , Jimmie Lanchester ; sergeant -at-arms, Bobby Wilson ; guide, Bill Boyd ;
Roberts bargaining committee : Joyce Jiles , Julia Milsap , Leonard Rogan , Bobby Ingram,
Virgil Shivers ; Cobell bargaining committee : Rosa Myers, George Kirkman , Delmar West.
Willingham apparently terminated his employment prior to the strike ; the remainder
were employed by Respondent when the strike began on October 26
8 Lincoln and other company representatives testified that International Representative
Backinger agreed to this. Backinger and some members of his negotiating committee
testified that they did not so agree. I find it unnecessary to resolve this conflict.
221-374--66-vol. 157- 4 5
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were not qualified, solely because of their years of service with the Company. At
a meeting in July or August, the Union abandoned its position on seniority and agreed
to Respondent's proposal for seniority on a departmental basis.
Although the parties had additional meetings in June, July, August, and early
September, at which some agreements were reached, nothing significant to the issues
here occurred at these meetings. In the interim, however, certain events took place
with respect to a so-called "vacation bonus" which should be related at this time.
At its Roberts Division Respondent for several years had paid a vacation bonus.9
Generally the plant closes during the first 2 weeks in August, and all employees take
vacation at that time. The bonus was customarily paid to the employees on Friday
preceding the closing for vacation. Preceding the 1964 vacation, no vacation bonus
was paid the employees. When this fact became known to Union Agent Backinger,
he wrote concerning it to Kenneth Smith, plant manager of the Roberts Division. In
this letter, dated August 21, Backinger pointed out that the failure to pay the vacation
bonus was a departure from past practice, that the change was without notice to the
Union and while bargaining was in progress. Additionally, Backinger's letter
requested that Respondent pay the 1964 vacation bonus to all employees, in accord-
ance with past practice, and that he be advised of Respondent's position on the matter
"at the earliest possible time." Admittedly no reply was made to this letter.10 On
September 4, the Friday preceding Labor Day, the employees received the vacation
bonus along with a note expressing the hope that "the enclosed vacation bonus will
help make this holiday a happy one for you." According to General Manager Smith,
there was no change in the amount or in the method of computing the vacation bonus
paid in September 1964 from that which prevailed in prior years. Smith admitted
that during his tenure as general manager of Roberts, which began in 1962, he decided
when and in what amount the vacation bonus should be paid. When asked if he had
any reason for deferring payment of the vacation bonus until September 4, rather
than paying it just prior to closing the plant for vacation as had been the past practice,
Smith replied, "Because I decided to give it at that time." He gave no other explana-
tion. According to Smith, he made no decision with respect to payment of the vaca-
tion bonus before the plant closed for vacation, but did so between August 15, when
the plant reopened, and August 21, the date of Backinger's letter to Smith complaining
about the failure to pay the bonus. Why payment of the bonus was delayed until
September 4 Smith did not explain, but he insisted that Backinger's letter of August 21
had nothing to do with his decision to pay the vacation bonus, or the timing of such
payment. Attorney Lincoln, Respondent's chief negotiator, gave no testimony regard-
ing this matter.
b. Meetings on and after September 14, but before the strike
(1) The meeting of September 14
At a meeting on September 14, which was the first session following payment of the
vacation bonus, while some aspect of group insurance was under discussion, Attorney
Lincoln told Union Representative Backinger that while he had not yet read the actual
pension trust agreement which Respondent had in effect, he understood that it con-
tained a provision that employee members of a bargaining unit were not covered by
it." At this point Backinger remarked, "It was a hell of a note that people who join
9 The amount of such bonus or the method of computing it does not appear in the record.
Employee Jiles testified that the amount paid her was usually about $20.
io Backinger, in the course of a telephone conversation with Company Attorney Lincoln,
referred to Respondent's failure to pay the 1964 vacation bonuses. Lincoln said he
would look into the matter, and if it was past practice to pay the vacation bonus, he
would see that it was paid. Paul Pegues, who attended a bargaining sesssion on Au-
gust 28 as a representative of Respondent, testified that Respondent's failure to pay the
1964 vacation bonus was raised at that meeting by Backinger, and that the latter was
assured by Lincoln that it would be paid.
11 Respondent's employee pension plan was first placed into effect on December 31,
1958. Initially the plan defined the term "employee" as
. . . all full-time permanent employees of the employer, but shall exclude those em-
ployees whose regular work week is less than twenty (20) hours and whose regular
employment is for a period of less than five (5) months in the fiscal year.
'Effective November 22, 1961, the plan was amended by, inter aisa, redefining "employee"
as meaning:
a person .. . who is receiving remuneration for full-time permanent personal
services regularly rendered to the employer . , but excluding any person covered
by a collective bargaining agreement entered into with the employer, which agreement
does not provide for coverage of such person by this plan.
THE RANGAIRE CORPORATION 693
the Union would lose their pension," and asked for a copy of the plan, as well as
information as to the amount of Respondent's contribution to the pension fund.
Lincoln's comment was that Backinger did not need a copy of the plan because the
employees were not covered by it, but that he would check into the extent of Respond-
ent's contribution to it 12 At the following meeting on September 29, Backinger told
Lincoln that the employees were disturbed about losing the pension, and asked Lincoln
if he had checked into the matter, commenting that he (Backinger) "would like to
have a copy of the plan because it was difficult for me to believe that such a plan
would isolate people because they belonged to a Union." Lincoln replied that he had
not had time to check into the matter.13
(2) The union meeting of September 21
In the interim the Union had a meeting on September 21 which was addressed by
Backinger. He told the employees in attendance that: He had been advised by the
Company that they were excluded from the pension plan; the Company had refused to
give him a copy of the plan; there was other conduct by the Company which he
regarded as unfair labor practices, but that he wished to check on them further before
taking any action; and while at least some employees had expressed the desire of
taking a strike vote, he was opposed to that because he did not wish to disrupt the
negotiations scheduled for the following month. Backinger suggested that instead of
a strike vote, the employees take a "protest" vote, to bring their dissatisfaction to the
attention of the Company. A resolution to that effect was adopted by a vote of
80 to 1.14
(3) Interrogation of Rosa Myers
On September 22, the day following the aforementioned union meeting, Cobell
Plant Manager Pegues asked employee Rosa Myers to accompany him to his office.
On the way to the office, Pegues commented, "I heard you had a Union meeting last
night." Myers agreed this was so. Pegues then referred to the vote that was taken,
and stated the size of the vote. After reaching the office, Pegues asked Myers how
many belonged to the Union, and if she knew how many would walk out if the Union
called a strike. Myers declined to answer. Pegues then commented that he knew
employee West had car payments to meet, and asked Myers how West would pay for
1f The findings with respect to this conversation are based on the credited testimony of
Backinger and Rosa Myers. Lincoln , Roberts General Manager Smith, and Cobell
General Manager Pegues, testified that Lincoln 's statement to Backinger was to the
effect that employee-members of a collective -bargaining unit were not covered by the plan,
unless the collective-bargaining agreement expressly provides for such coverage. Back-
inger denied that , on the occasion referred to, the italicized words were used by Lincoln.
As to this I credit Backinger and Myers because of Smith's testimony on cross-examination
that neither by the written proposals nor during the bargaining sessions was the Union
told that employees would not be under the pension plan unless the collective -bargaining
agreement reached by the parties expressly so provided, and that to his knowledge this
latter information was first communicated to the Union by Lincoln 's letter to Backinger,
dated October 12, written in reply to Backinger's letter and telegram, both dated Octo-
ber 3, complaining of certain conduct by Respondent including "Discontinuance of the
employees' pension plan and the Company's contribution to such plan."
Lincoln, Smith, and Pegues also testified that when Lincoln made his remark about
coverage under the plan, neither Backinger nor any member of his committee made any
comment and that no one asked for a copy of the pension plan. As to this I also credit
Backinger and Myers because of Smith's aforementioned admission , and because I regard
their testimony as more consistent with the probabilities . In reaching this conclussion
I have not overlooked the fact, on which Respondent relies heavily, that In his letter to
Lincoln, dated September 17, requesting a complete contract proposal from Respondent,
Backinger did not refer to the provisions of the pension trust agreement nor ask for a
copy thereof, notwithstanding the discussions which he (Backinger) claimed had occurred
at the September 14 meeting. I regard as entirely logical and, therefore, credit Backinger's
explanation that having asked for a copy of the trust agreement at the September 14
meeting, and having received Lincoln's promise to look into the matter, it was unnecessary
to renew that request In his September 17 letter, particularly In view of his demand for
a complete contract proposal from Respondent.
is Based on the credited testimony of Backinger and Jiles. Smith denied that such a
conversation occurred at the September 29 meeting, or any other time. Lincoln did not
testify regarding this incident.
14 Based on the uncontradieted and credited testimony of Backinger, Rosa Myers, and
Jiles.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his car if he went on strike. Myers replied that she knew nothing of West's financial
situation, and that the employees would cross that bridge when they came to it.
Pegues then told Myers that if she went on strike he could get a hundred girls off the
street to do the job she was doing. Pegues also told Myers that he had driven down to
the hall while the union meeting was in progress the preceding night. Myers stated
that she had no "doubt but what he came in the back door." Pegues denied this, but
added, "Don't you go down and tell Bert [Backinger] that I was down there snooping
around." 15
(4) The meetings of October 19 and 20
The next bargaining session was on October 19. Prior to this meeting Company
Attorney Lincoln, by letter dated October 12, transmitted to Union Agent Backinger
separate contract proposals for Roberts and Cobell. Both proposals were complete,
and contained a wage schedule.16 Although this was Respondent's first proposal on
wages in over 4 months of negotiations, this fact seems to have been the result of an
agreement, express or implied, that considerations of money items be deferred until
the remaining portions of the contract had been agreed upon.17 Apparently the main
topics of discussion on October 19 were the Christmas bonus and pension provi-
sions.18 With respect to the Christmas bonus, Respondent at this meeting proposed
to add the amount paid for that purpose to the employee's minimum pay rate for
the particular classification, in lieu of the bonus. This was rejected by the Union
because Respondent's refusal to add this amount to each step in the classification,
including the maximum, meant that employees at the top of the classification would
not have the amount represented by the bonus reflected in their actual pay.19 The
record is not clear with respect to the discussion at the October 19 meeting on the
subject of the pension plan. It does appear that during this meeting Backinger
made some reference to the effect that the employees were excluded from participation
in the pension fund, and asked whether, in view of that fact, Respondent would
agree to add to the employee's wage rate the amount it had theretofore paid into
the fund on behalf of each employee. Apparently Respondent took the request under
advisement.
's Based on the credited and uncontradicted testimony of Rosa Myers Respondent's
answer did not deny the allegations of the complaint in support of which this testimony
was offered. When Plant Manager Pegues testified as a witness for Respondent, he did
not deny the aforementioned statements attributed to him by Rosa Myers. Moreover,
Attorney Lincoln admitted on the record that the events testified to by Myers did in fact
occur.
19 It is to be noted that each of these proposals, as did the prior ones submitted by
Roberts on June 18 and by Cobell on September 14, contained the provision that "such
matters as vacation bonuses, Christmas bonuses, and pension plan are given at the sole
discretion of the employer and are not required by the terms of this agreement and may
be granted or withheld at the employer's discretion." If, as Lincoln, Smith, and Pegues
testified, the Union was told at the September 15 meeting that unless the collective-
bargaining agreement expressly provided for coverage, the employees involved were ex-
eluded from coverage under the pension plan, the above-quoted provision of Respondent's
proposals was superfluous. In part, I rely on this fact in support of my finding that
Lincoln only told Backinger that under the -provisions of the plan, employees in a collective-
bargaining unit were excluded.
17 Lincoln testified that he suggested such a course, and that Backinger agreed. Backinger
denied that he so agreed, but admitted that he did not object, and that his requests for
a wage proposal were in the form of a statement that he "sure would like to have a
wage proposal." The meeting of October 19 and the one which followed on October 20
were devoted to a discussion of Respondent's contract proposals.
18 Wages were also discussed at least to some extent. Lincoln admits that he reiterated
his statement, as above set forth, that supply and demand controlled wage rates, that as
Respondent was able to obtain labor at the rates it paid he regarded such rates as proper.
Pegues testified that Respondent's negotiators suggested that the wage rates attached to
their contract proposals of October 12 be discussed by classifications, but that Backinger
,refused, claiming that they were all too low. Backinger denied that Respondent made
any such suggestion, or that he refused to engage in such discussion. I consider it un-
necessary to resolve this conflict.
's Thus to an employee in a classification for which the pay scale ranged from $1 75 to
$1.95 per hour, an increase of 10 cents in lieu of the Christmas bonus would be meaning-
ful only to an employee actually paid $1.85 per hour, or less. It would have no meaning,
)however, to an employee who had reached the maximum of his, classification, unless the
maximum was increased, and to this Respondent refused to agree.
THE RANGAIRE CORPORATION 695
After adjournment of the October 19 meeting, and before the parties met again on
October 20, Pegues and Lincoln ascertained from Respondent's auditing department
that its contribution to the pension fund was 3.76 percent of wages.20 Lincoln testi-
fied that during this interval he read for the first time the provision of the pension
trust agreement relating to exclusions from its coverage. It should be noted, how-
ever, that in his letter to Backinger dated October 12, Lincoln referred to this provi-
sion of the pension plan with substantial accuracy. At the October 20 meeting,21
Lincoln told Backinger the amount of Respondent's contribution to the pension fund.
It is clear that the chief items discussed at the October 20 meeting were the Christ-
mas and vacation bonuses and the pension, but there is a substantial conflict with
respect to what was said by the respective parties concerning these subjects. Accord-
ing to Backinger, whom for reasons hereafter stated I credit, Respondent proposed
that in lieu of the pension and the Christmas and vacation bonuses, the cost of these
items to Respondent be converted into an hourly rate which would be added to the
base individual hourly rate of each employee. This was rejected by the Union for
the same reason which is advanced at the October 19 meeting. Backinger denied
that at this meeting Respondent also gave the Union the choice of continuing with
the bonuses and/or the pension as in the past.22 The Roberts meeting of October 20
20Actually the figure first given them was 3.61 percent of wages. A day or so later it
was ascertained that 3.76 was more accurate. Lincoln promptly reported this to
Backinger, and thereafter the parties used the latter figure in their negotiations.
m Actually there were two sessions that day, a so-called Cobell meeting in the morn-
ing, and a Roberts meeting later in the day.
23 Lincoln and Smith testified that at the October 20 meetings the Union was given the
choice of continuing the pension and/or the bonuses as they had operated in the past, or
of discontinuing such items and folding the cost thereof into the pay rates. Lincoln testi-
fied that this offer was first made at the Cobell meeting held the morning of October 20,
and that at the later Roberts meeting he told the union committee that he would do the
same thing at Roberts as he had offered at Cobell I have credited Backinger on this
point because Pegues, who was present and participated in the morning meeting on Octo-
ber 20, testified that the Union was given no alternative regarding the pension and
bonuses, and that the first time such a choice was given the Union was at a meeting
which Respondent contends was held on October 23, but which the Union denies was ever
held, a factual issue which will be hereafter resolved I also credit Backinger in this
respect because I regard his testimony as corroborated by that of Jiles, a member of the
Union's bargaining committee for the Roberts Division, who was present at the Roberts
meeting on October 20. Jiles on cross-examination testified regarding the proposal to
include the cost of the bonuses and pension in the pay rates At line 19, page 439 of
the transcript, there appears the following answer by Jiles• "Well, you [Lincoln] were
talking about adding the bonus into our rates, but you would not put them on the maxi-
mum rate and you did offer it as we had had it in the pa8t." [Emphasis supplied.] The
fr'eneral Counsel has filed with me a motion to correct the record in certain particulars.
In addition to other corrections as to which Respondent has raised no objections, the
General Counsel proposes to change the words "and you did offer" in the emphasized
portion to read "you never did offer" Respondent objected to this correction urging
that the transcript correctly reflected the testimony of Jiles and constituted an admission
by the Union of which Respondent should not be deprived. In view of this dispute, the
reporter was asked to check his original notes and report whether or not they differed
from the transcript. The parties were advised that I would receive and consider any
affidavits they cared to present bearing on the correctness of the transcript. The re-
porter, who uses the "closed mask" system, advised that his tape is in accord with the
transcript. An affidavit from Jiles states that the transcript does not correctly reflect
her testimony in that regard, and that unless corrected as requesed by the General Coun-
sel, it would not correctly reflect the facts. Affidavits submitted by Respondent state, in
substance, that the several affiants were present in the hearing room while Jiles testi-
fied and that to the best of their recollection, at the point indicated, the transcript sub-
mitted by the reporter correctly reflects Jiles' testimony. Considering all his material,
and drawing upon my own recollection of what transpired at the hearing, I find and
conclude that the transcript in its present form is inaccurate in the particular mentioned,
because of the reporter's failure to accurately speak into the microphone what was said
by the witness, and that the same should be and is now corrected in all particulars men-
tioned in the General Counsel 's motion. A copy of that motion, the opposition to it, and
of all the correspondence relating to it has been filed with the record , and marked "Trial
Examiner's Exhibits Al through A8."
Respondent also filed with me a motion to correct the record in certain particulars
therein set forth. No objection to this motion has been received. Accordingly, I now
grant same in its entirety. This motion has been marked "Trial Examiner's Exhibit A9,"
and filed with the record.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluded with Backinger asking Lincoln to submit Respondent's proposals regarding
the pension and bonuses in writing, so that Backinger could take them up with the
employees at a union meeting scheduled for October 21. Lincoln admits that he first
resisted this request, but finally agreed to and did submit such written proposal to
Backinger by letter dated October 21. Although this letter was written the day after
Lincoln claims he gave the Union the option of continuing the bonuses and/or the
pension as they had operated in the past, or of including their cost in the wage rates,
the letter makes no reference to such an option.23
(5) The union meeting of October 21
As scheduled, the Union held its meeting on October 21, at which time Backinger
reported on the status of the bargaining with Respondent. At this meeting Backinger
read Lincoln's letter of October 21. In addition he told the assembled employees,
inter alia, that: The Company's proposal to add to the pay rate the cost to it of the
bonuses and pension, but not to increase the maximum rate for the classification, was
meaningless because most employees would realize nothing from it; their pension
plan was gone and they were getting nothing in return; Respondent had not supplied a
copy of the pension plan; and told them about the interrogation of Mrs. Myers by
Plant Manager Pegues.24 Backinger concluded by stating that Respondent had not
bargained in good faith, and recommended that the employees vote to strike. A
motion to that effect carried by a vote of 78 to 0, but no time for the strike was fixed 25
The union meeting of October 21 ended about 9:30 p.m. Following the meeting,
Backinger went to Lincoln's motel room to talk with the latter about the decisions
reached at the union meeting. Not finding Lincoln, Backinger had his wife, who had
also attended the union meeting, write Lincoln a note which he dictated and left under
the door of Lincoln's room. This note, written on the back of Backinger's business
card, read: "Charles-I got 2 more days-money, length of contract and checkoff was
[sic] big issues. Call me-Bert." 26 Backinger explained that he used the word
"money" because Lincoln's letter of October 21 dealt with adding the cost of the
bonuses and pension to the wage rate, and there being so little room on the card, he
used that as a brief reference which he would more fully explain when Lincoln called
him. The reference to 2 more days he explained as meaning that while a strike vote
was taken at the October 21 union meeting, no time for the strike had been fixed, and
another union meeting had been scheduled for October 24 to fix the time; the two
intervening days-October 22 and 23-being what he meant. This card has a bear-
ing on the issue of whether or not the parties had a bargaining session on October 23,
as hereafter more fully set forth.
23 Lincoln testified he did not mention the alternatives regarding the pension plan be-
cause Backinger had previously indicated that,the latter was not interested in the pension
plan as such , that all he wanted was the money in the fund given to the employees in
the form of an immediate wage increase . Lincoln did not attempt to explain the failure
to refer to the alternative proposal with regard to the bonuses. I do not credit his ex-
planation Lincoln's failure to refer to the alleged alternative proposal I also rely on in
support of my finding heretofore stated that Backinger should be credited on the issue
whether Respondent made such a proposal at the meetings of October 20.
24 Backinger also discussed at this time certain conduct by Respondent that he regarded
as unfair labor practices, the details which will be hereafter set forth.
Based on the uncontradicted and credited testimony of Myers, Jiles, and Backinger.
'e Lincoln claims that this card was handed to him by Backinger on the afternoon of
October 23, when the parties met for some period of time, with the statement that he
(Backinger) thought Lincoln was not coming to the meeting, and he was leaving Lincoln
a note, Pegues testified that he was present and heard Backinger' s remark . Smith, who
went to the meeting in the same car with Pegues (Lincoln having gone ahead of them
in his own car), does not mention the incident, testifying that when he and Pegues drove
up, Lincoln and Backinger were standing on the sidewalk engaging in conversation. I
find that the card was left at Lincoln's room on October 21, for the following reasons: (1)
The card is in Mrs. Backinger's handwriting, and she was not present on October 23; (2)
I find it difficult to believe that if, as Lincoln testified, Backinger handed him the card
with the statement that he (Backinger) thought Lincoln was not coming and he was
leaving a note, that the note would not have made some reference to Lincoln's tardiness,
to Backinger 's inability to wait longer, or to some suggestion about a future meeting; (3)
Backinger is supported by his notation in a diary he kept, which under date of October 21
reads "stop to see Lincoln-not there" ; and (4) because Smith's testimony does not
support that of Lincoln and Pegues.
THE RANGAIRE CORPORATION 697
(6) The alleged negotiations on October 23
According to Lincoln, in a telephone conversation with Backinger during the
morning of October 23, the latter asked to meet with Lincoln that afternoon, at Lin-
coln's motel room; he (Lincoln) went to the meeting in his own car, Pegues and
Smith following in a separate car; he arrived at the meeting place a few minutes
ahead of Pegues and Smith, and when he arrived Backinger gave him the note above
referred to and commented that he thought Lincoln was not coming and was leaving
a note; after Pegues and Smith arrived the four of them retired to the motel room
where various contract proposals were discussed; the chief discussion involved the
bonus and pension issues, concerning which he (Lincoln) stated that Respondent was
agreeable to permitting the bonuses and/or pension to continue as they had in the
past, or add the employer's cost thereof to the wage rate, and the Union could have
its choice as to which it would take; Backinger then suggested that if Respondent
would agree to add to the wage rates the cost of the bonus, the 3.76 percent to cover
future contributions to the pension fund, and an additional 3.76 to cover the contribu-
tions made on behalf of the employees in past years, he thought he could get the
employees to agree, and was certain he could obtain such agreement if Lincoln would
agree to a checkoff provision. Lincoln also testified that during the meeting Backin-
ger had indicated that a strike was scheduled for Monday morning, October 26, and
that when Backinger made the suggestion about doubling the 3 76 percent to cover
the past pension contribution, he (Lincoln) pointed out that Harold Bailey, Respond-
ent's executive vice president, had just returned to Cleburne, and stated that if
Backinger would agree to delay the strike so as to give Bailey an opportunity to con-
sider the matter, he would discuss Backinger's suggestion with Bailey, because he
and Plant Managers Smith and Pegues were unwilling to agree to Backinger's pro-
posal without prior clearance from Bailey. According to Lincoln, Backinger agreed
to advise whether the additional time could be given, and on that note the meeting
concluded. Smith and Pegues, who testified substantially to the same effect, corrobo-
rate Lincoln in all details relating to what was discussed on this occasion. They both
testified that following the meeting which, they say, lasted about 30 minutes, they
returned to their respective offices, and without discussing the matter with each other,
made notes on what had occurred at the meeting. They had these notes before them
when they testified. However, after examining his notes, Pegues admitted that they
contain nothing to indicate that Backinger was told that Respondent would agree to
permit the pension to continue as in the past. Pegues also admitted that of the
approximately 17 bargaining sessions held up to that time, this was the first occasion
when Backinger appeared without his bargaining committee.
Backinger gave no details as to the circumstances under which this meeting with
Lincoln was arranged. In view of Backinger's statement that he expected the meet-
ing to be only between him and Lincoln, the fair inference is that he had some under-
standing with Lincoln about meeting with the latter on October 23. Backinger denied,
as heretofore stated, that he gave Lincoln the business card with the handwritten
note at that time, and I have heretofore credited such denial. According to Backin-
ger, no bargaining took place on this occasion, and none of the matters referred to by
Lincoln were discussed. He specifically denied that Lincoln gave him the option of
continuing with the bonuses and/or the pension as in the past, or that he made any
suggestion about including an extra 3.76 percent into the wage rate to take care of
past contributions to the fund on behalf of the employees involved. Backinger testi•
fied that he was with Lincoln only for a few minutes, "about 10 minutes maybe," and
that after a few pleasantries he left because the situation looked to him "like a setup."
This latter statement is supported by the entry in Backinger's diary, heretofore referred
to, which under date of October 23 had the following entry, among others: "Met Lin-
coln, Pegues and Smith-setup."
On consideration of the foregoing testimony, I credit Backinger and find that no
bargaining over contract terms took place between the parties on October 23. I do
so for the following reasons. (1) As I have heretofore found, Lincoln and Pegues
were mistaken that the business card was given to Lincoln at that time; (2) although
the pension and the manner in which it was to be handled in the proposed contract was
a major, if not the most important, subject allegedly discussed on October 23, Pegues'
notes made the same day admittedly do not show that Backinger was offered the
option of having the pension continue as in the past in lieu of adding its cost to the
wage rates; and (3) it is inconceivable that Backinger would have discussed contract
terms on this occasion if he regarded the meeting as a "setup," as I find he did 27
27 My decision to credit Backinger in this regard is predicated in part on the fact
Backinger testified that no discussion of issues took place at this meeting, and that he
regarded the meeting as a "setup" while being cross-examined , after having testified on
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(7) Union meeting of October 24; the subsequent strike on October 26
At a union meeting on October 24, Backinger again discussed the Union's various
grievances against Respondent, and by a virtually unanimous vote it was determined
to strike beginning at 7 a.m., October 26. Backinger notified Respondent of this fact
in a telephone conversation with Pegues on October 25, and the strike began as
scheduled. Picket lines were established, which were directed from temporary quar-
ters across the street from the plant. Although a number of employees joined in the
strike, it is clear that all employees in the unit did not do so, and that to some undis-
closed extent the plants continued operating during the entire period of the strike.
c. Poststrike events
(1) Negotiations on October 26, 27, and 28
These meetings were devoted to substantially the same issues and, therefore, can
most conveniently be handled together. As is the case with respect to the prior
meetings on October 19 and 20, and the alleged meeting on October 23, the evidence
as to what transpired at the meetings of October 26, 27, and 28 is in conflict. Accord-
ing to Backinger, whom I credit, the meeting of October 26 began with Lincoln ask-
ing what it would take to settle the strike; that he (Backinger) replied, in substance,
that all the people wanted was what they had in the past, and that if Respondent
would agree to continue with the bonuses and pension, as in the past, and correct
certain conduct which Backinger claimed constituted unfair labor practices, the
people would return to work, and that the relatively minor issues that remained
could be quickly resolved, that Lincoln left the meeting to discuss the matter with
Executive Vice President Bailey, and upon his return announced that Respondent
would not change its position on either the bonuses or the pension from that set
forth in Lincoln's letter of October 21, above referred to.28 Backinger denied that
Lincoln gave the Union the election of having the cost of the bonuses and pension
added to the wage rates, or continued as they had previously existed, or that he
(Backinger) offered to sign a contract if Respondent would agree to add the cost of
the bonuses to the maximum of the wage rates, or if Respondent agreed to add an
additional 3.76 percent to cover past contributions to the pension fund.
With respect to the October 27 meeting, Backinger credibly testified that Lincoln,
for the first time during the negotiations, changed his position on the bonuses, agree-
ing that the Union could have the option of having them continued as in the past,
or having the cost thereof added to the wage rates; that he (Backinger) thereupon told
Lincoln that if Respondent would do the same with respect to the pension, there
would be no further problem, and the strike would be over Lincoln's position was
that he had gone as far as he could go, and would make no further change in his
position.
As to the October 28 meetings,29 Backinger credibly testified that the meeting
opened with Lincoln announcing that Respondent had not changed its position on the
matter of pensions, and then stated that a new problem had arisen, namely, that eight
of the striking employees had been replaced, five at Roberts and three at Cobell.
After some further discussion, Backinger told Lincoln that if the Company would
"make whole" the pension, either by continuing it as in the past, or paying to the peo-
ple the moneys contributed for their benefit to the pension fund in past years, and
reinstate the eight replaced strikers, the employees would return to work. Lincoln's
position was that the Company had gone as far as it could, and that the eight replaced
employees would not be reinstated. Pursuant to Backinger's request that Respond-
ent's then-current position be reduced to writing, and at Lincoln's insistence, they
direct as a witness for the General Counsel ; that he did not, when he so testified, have
his diary with him, apparently not anticipating that this issue, or the issue concerning
the business card, would arise; that after these issues were injected while Respondent
was presenting its testimony, Backinger sent to Fort Worth for his diary, and when it
was presented during rebuttal his entry made on October 23, between other entries,
showed that he used the same word-"setup"-that he had used while previously testifying.
"8 As heretofore stated, Lincoln's letter of October 21 merely stated Respondent's pro-
posal that the cost of the bonuses and pension be added to the individual wage rates.
It did not state that the Union could elect to have either the bonuses or the pension
continue as in the past.
^ There were in fact two meetings that day, a Roberts meeting in the morning and a
Cobell meeting later in the day. Lincoln and Backinger are in accord that substantially
the same discussion took place at both meetings. In fact Lincoln testified that Backinger
tried to dispense with the Cobell meeting because it would simply be a rehash of what
had occurred at the Roberts meeting, but that he (Lincoln) insisted on going through
with the Cobell meeting as scheduled, and that the parties did so.
THE RANGAIRE CORPORATION 699
went over Respondent's last contract proposals, page by page, modifying them to
reflect the subsequent agreement reached. With respect to items on which agree-
ments had not been reached, Lincoln stated that the proposal reflected Respondent's
final position. Backinger then told Lincoln that he would submit this final proposal
to the Union's membership. This was done at a union meeting held October 29, and
Lincoln was notified that his offer had been rejected 30
(2) The November 10 meeting
This meeting was held with a representative of the Federal Mediation Service in
attendance, at least for a part of the time. As in the case of the other meetings, the
evidence relating to what happened is in dispute. Backinger, whom for reasons here-
tofore stated I credit, testified in substance that after the conciliation commissioner
heard the positions of the parties and met privately with Lincoln several times, the
latter told Backinger that while the Company preferred to do away with the pension,
it would agree that the Union might elect to have it continue as in the past, or added
to the wage rates; that this was the first time Lincoln offered to permit the pension to
continue as in the past; and that when Lincoln made this offer he (Backinger) stated
that the only issue that remained was reinstatement of the replaced strikers31
30 In substance, Lincoln and Smith testified that at the meeting of October 26, when
Lincoln asked Backinger what it would take to settle the strike, the only reply which the
latter made was that if the Company would agree to double the 3 76 percent, which
represented its contribution to the pension fund, and give that as an immediate wage
increase, he thought the employees would agree to a contract and return to work. They
further testified that at this meeting Backinger was told that he could choose between
having the bonuses and pension continue as they had in the past, or added to the wage
rates. They did not testify that Respondent was agreeable to raising the maximum rates
of the classification to allow for the addition of such sums. Regarding the meeting of
October 27, Lincoln and Smith testified that bonuses and the pension were discussed, and
that Backinger was again given the choice of continuing them as in the past or adding
their Bost to the wage rates; that in the course of this discussion Lincoln asked Backinger
if the 3.76 percent doubled was the only thing keeping the employees out, and that
Backinger replied, "Yes." Regarding the October 28 meeting Lincoln and Smith testi-
fied that: After some discussion of the eight replaced employees and the parties resumed
consideration of the contract terms, Backinger asked Lincoln what the latter would do
if he (Backinger) accepted the contract terms as then agreed upon, and Lincoln replied
that the only thing he could do was to sign it; Lincoln then asked Backinger if he was
accepting the former's contract proposals, and after some evasion Backinger stated that
he was, subject to union ratification ; at Lincoln's suggestion, and because he wanted to
be certain that Backinger fully understood what he was agreeing to, the parties went
through Respondent's proposal of October 12, as modified by Lincoln's letter of October 21,
page by page; those pages as to which no question was raised were approved, and when
a question arose the issue was discussed and a conclusion reached before proceeding to the
following pages; and after thus going through the entire contract proposal, Lincoln again
asked Backinger if he understood the terms so agreed upon were being accepted, subject
to union ratification, and Backinger replied in the affirmative. According to Smith,
Backinger then stated that if Respondent would agree to reinstate the replaced strikers he
would sign the contract as written, but that he doubted he could sell it to the employees
unless those people were reinstated.
I have not attempted to set forth or resolve every area of conflict in the testimony
between Backinger on the one hand, and Lincoln and Smith, who basically corroborate
one another, on the other hand, because I regard such resolutions as unnecessary to a
decision of the case Suffice it to say that I have credited the testimony of Backinger
because on the record as a whole and particularly with respect to the events of October 21
and 23, above set forth, I regard Backinger's recollections of the events more accurate
and, therefore, more reliable than those of Lincoln and Smith.
ii Lincoln's version of the events at this meeting was that when called upon by the
mediator to state his position, he asked Backinger to state what issues were keeping the
parties apart, and that the latter replied, reinstatement of the replaced employees and the
pension contribution "folded in double." Smith, however, testified that in reply to a ques-
tion from the mediator as to the cause of the strike, Backinger replied that there would
have been no work stoppage but for a series of unfair labor practices by Respondent, and
the refusal of the latter to agree to increase the maximum rate of the various job classifica-
tions sufficiently to take care of the Employer's cost of the pension and bonuses that were
to be added thereto.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Post-November 10 correspondence
After the meeting with the mediator on November 10, Lincoln by letter dated
November 11 wrote Backinger that the Company would either add the cost of the
pension and/or the bonuses to the hourly wage rate of the employees, or continue
such items as in the past, whichever the Union desires.32 By letter dated Novem-
ber 12, Backinger replied to Lincoln's letter of November 11. After denying Lincoln's
statement that Respondent had offered to continue the pension as in the past, at any
time prior to the meeting of November 10, Backinger continued as follows:
... As is clear from your letter of October 21, your only previous proposal had
been discontinuance of the pension plan with no provision for the preservation
of the employees's past accumulation in the plan. Since you have previously
refused to make a copy of the plan available to us it is difficult, if not impossible,
for us to properly evaluate this most recent proposal. If you will reconsider
your refusal to make the plan available we would like the opportunity to inspect
it in considering this new proposal.
Lincoln replied to the foregoing letter under date of November 18.33 Although Lin-
coln took issue with Backinger's statement that the latter had theretofore requested a
copy of the pension plan, or that Respondent had in the past refused to make a copy
thereof available, and expresed agreement that Backinger might inspect it, no copy of
the plan was forwarded with the letter, although Respondent maintains it in printed
form. Indeed, Respondent did not make a copy of the pension plan available until
December 3, when the parties met briefly in further negotiations. Even then Respond-
ent did not offer a copy of the plan on its own volition, but only after Backinger made
a specific request therefor. Lincoln's explanation for this was that Backinger had not
asked for it, and he made available only what was asked for 34
(4) Termination of strike and reinstatement of some strikers
On November 25 the Union delivered to Smith and Pegues, as plant managers of the
Roberts and Cobell Divisions, respectively, letters indentical except for name, advising
that the strike had terminated, and that as the representative of the striking employees,
and on their behalf, the Union was unconditionally requesting reinstatement of the
employees to their former or other available employment.35 On the same day Smith
and Pegues by separate letters advised Backinger that during the strike a "substantial
number" of employees had been replaced, listed the job openings, and concluded by
stating that if any strikers desired to apply for any of the listed jobs, they should con-
tact the writer "at any time during working hours and make application to me for the
jobs." 36
On November 30 striking employees presented themselves in groups at the offices
of Roberts and Cobell seeking reinstatement. Both Smith and Pegues testified that
when they wrote their respective letters of Novembei 25 they had in mind reinstating
The letter also stated that Backinger had been so advised "many times," and par-
ticularly when he accepted Respondent's proposal on October 28. As pointed out above,
Backinger denied that such was a fact, and I have credited the latter
33 The apparent delay in replying was due to Lincoln's absence from his office, of which
fact Backinger was advised by an intervening letter dated November 16.
"At the December 3 meeting the Union, after receiving a copy of the pension plan,
asked for time to study it. At a subsequent meeting the Union advised Respondent that
the plan was satisfactory, and it was agreed that the same would continue
ss On November 21 the Union by telegram requested Respondent to supply a list of em-
ployees claimed to have been replaced by Roberts and Cobell. This being a weekend, the
telegram was received by Respondent the following Monday morning, November 23, and
the same did not come to Lincoln's attention until November 24 At that time Lincoln
telephoned Backinger and advised that Respondent could not comply with this request
until it knew what employees would come back. Backinger asked if such a list could
be furnished if he sent a letter saying all employees would return. Lincoln replied that
he probably could. However, so far as the record shows, no list of replaced strikers was
furnished to the Union, the Union being told only that certain jobs were available to
returning strikers who could qualify for them.
ae The letters from Smith and Pegues were identical except for signature and the listing
of available jobs. The jobs listed as available were' At Roberts: 1 tool-and-die department,
1 custom department, 1 shearing, 2 fabrication, 1 spray painter, 2 hood assembly, 4 elec-
tronic assembly, 1 electronic technician. At Cobell • 2 spray painters, 2 fabrication de-
partment, 1 shipping clerk.
THE RANGAIRE CORPORATION 701
the strikers, to the extent that jobs were available, on a "first come first served basis,"
not anticipating that the strikers would present themselves in groups. They further
testified that when the employees appeared in groups, and being unable to determine
the order in which employees reached the plant, but to determine the order in which
the applicants would be interviewed, they prepared seniority lists, Smith on the basis
of plantwide seniority, and Pegues on the basis of departmental seniority. The return-
ing strikers, Smith and Pegues testified, were interviewed in the order of seniority on
the lists prepared as above set forth, and offered available jobs for which they were
qualified.37 However, in some instances strikers were interviewed prior to Novem-
ber 30 and told to return to work. Thus, Roberts Plant Manager Smith, in a telephone
conversation with striker L. E. Prince, on Saturday, November 28, at an hour when
the plant was not open for business, told Prince to report for work on Monday,
November 30. Prior to the strike Prince and Virgil Shivers had both worked in the
classification of fabrication, class 2, Shivers with a seniority date of November 5,
1959, and Prince with a seniority date of May 30, 1961. When Virgil Shivers, who
was a member of the Union's bargaining committee, presented himself for work on
Monday, November 30, in a group with other returning strikers, he was told that
his former job had been filled, and that the only job available was electronics tech-
nician, for which, because technical training was required, he (Shivers) could not
qualify. Smith admitted that had not Prince been hired the preceding Saturday,
Shivers would have been the first person to have been interviewed on November 30,
having the qualifications for that job, and would have been offered the precise job
he held prior to the strike. Shivers had not been reinstated at the time of the hearing.
At Cobell, Plant Manager Pegues, on November 14, some 10 days before the
end of the strike, in a telephone conversation with employee Leta Ward, who prior
to the strike had been employed at Cobell in the capacity of hood assembler 1, at
Ward's request, agreed to reinstate her to her former job However, Ward was not
in fact recalled to work until January 4 or 5, 1965. Among the employees who
appeared at the Cobell plant on November 30 seeking reinstatement were Maude
McMinn, Lena King, Hazel Walker, and Rosa Myers, all of whom were working
as hood assembler I at the time of the strike. All of those employees had seniority
over Ward. When these people applied on November 30, they were admittedly told
that there were no openings in the hood department None of them were called to
work in January 1965, when Ward was recalled.38 Of the 12 employees who applied
for employment at Cobell on the morning of November 30, 5 were hired 39 Later
87As set forth above (section I, B, 1 (b ), supra ), during negotiations the Union had
proposed plantwide seniority , but Respondent proposed and insisted upon departmental
seniority. Ultimately the Union abandoned its position and agreed to departmental se-
niority. Respondent gave no reason for offering jobs to the returning strikers at Roberts
on the basis of plantwide seniority , other than that of Smith that he regarded it as the
"fair" way to do it.
81 The employment date of these employees was as follows: Maude McMinn, March 3,
1958; Lena King , April 24, 1958; Rosa Myers, September 3, 1959 ; Hazel Walker, Janu-
ary 5, 1961 ; Leta Ward , April 27, 1962.
39 These five , their employment dates, and the jobs they left and to which they were
restored , appear from the following table
Job on 10/26 as
Name Employment date shown by seniority Restored lob
list dated May 7
Royce Overly_________________ 1/5/60__________________ Painter ---------------- Painter.
Tommy Sheffield----------- 4/20/64----------------- -----do----------------- Do.
Tolbert Worley_______________ 4/10/63___ Truckdnver___________ Truckdriver
Bill Boyd_____________________ 8/6/59__________________ Leadman shears_______ Leadman shears.
Leslie Manley_________________ 3/18/63_________________ Painter ---------------- Fabrication.
Pegues testified that Manley had seniority In the fabrication department, and I assume
that he transferred to that department (from painting) after May 7 but before Octo-
ber 26. If this assumption is correct, the record fails to explain why Otis Tucker, whose
name appears on the seniority list of May 7 as punch press 3, and who was interviewed
ahead of Manley, was not offered the available job in the fabrication department. Of
course, on the basis of plantwide seniority, Manley was the senior employee.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the day, strikers Paul Corbin, Herman Smith, George Kirkham, Delmar West,
Bobby Joe Williams, and Robert Stevens applied, in a group, for reinstatement 40
Each was told that all available jobs had been filled. However, in January 1965
Cobell offered employment to Davis, Tucker, Corbin, and Stevens. Corbin and
Stevens accepted and were put to work. No offers of reemployment were made to
Kirkham, West, or Williams, although the record is clear that they had seniority
over Corbin and Stevens.
The result of all this, both at Roberts and Cobell, was that of the 15 people named
in the Union's letter of May 27, which advised Respondent who the officers and
leaders of the Union were, 10 of whom were employed at Roberts, and 5 at Cobell,
only 2-Leonard Rogan and Nolan Matthews-were reinstated at Roberts, and only
1 (Bill Boyd) was reinstated at Cobell.
(5) Alleged misconduct of strikers
Respondent urges that if the strike engaged in by its employees be found to be an
unfair labor practice strike, or even if it be concluded that there was discrimination
in the selection of the strikers for reinstatement, two employees were guilty of such
misconduct as to bar their right to reinstatement. The events regarding the two
employees so involved will be discussed separately.
(a) Delnar West
Robert Evans, a salesman for International Paper Company, sells corrugated paper
boxes to Respondent. Gn some unspecified date while the strike was in progress,
Evans was informed by his employer that the latter's truckdriver had refused to
deliver at Respondent's plant because of the picket line, and Evans was asked if he
would assist a supervisory employee in making the delivery. Evans met the truck
at a prearranged spot, and, with the supervisory employee driving and Evans seated
in the cab, they drove toward Respondent's plant. Approaching the plant, the truck
was stopped by a group of three men, one of whom Evans identified as West. As
spokesman for the group West stated that they would not permit the truck to enter
Respondent's premises because they had a strike or and wanted to make it effective.
When Evans insisted that the truck was going through, the door to cab opened, a
number of hands reached in, and Evans was pulled out. Evans was unable to identify
the person who pulled him out of the cab, but he was specific that after being pulled
out, there was a scuffle during which some of his clothes were torn, and that West
struck him "2 or 3 blows." Following this, Evans expressed the desire to telephone
his office for instructions. Thereupon Evans and West shook hands, expressed them-
selves as having "no hard feelings," and the strikers left. The record does not
indicate whether the delivery was made41
(b) C. D. Myers
C. D. Myers had been a Roberts employee since November 15, 1957. The seniority
list of May 7 shows his classification as assembly class 2. He is the husband of Rosa
a The fobs to which these men had been assigned , and their seniority dates, as the same
appears on the seniority list of May 7, follows:
Name Seniority date Classification
Paul Corbin ---------------------------------
2/5/64---------------------------------- Spotweld 3.
Rerman Smith------------------------------ 5/21/63--------------------------------- Spotweld 2.
George Kirkham -------------_--__-___ 1/5/61---------------------------------- Press brake.
Delmar West-------------------------------- 6/5/63---------------------------------- Painter 2.
Bobby Joe Williams------------------------- 3/20/63--------------------------------- Shears 2.
Robert Stevens------------------------------ 4/6/64--- --------------------- Spotweld 3.
As heretofore stated, the Union's letter, handed to Respondent on May 27, advised that
George Kirkham and Delmar West were officers of the Union and members of its Cobell
bargaining committee, and that Bobby Joe Williams was its sergeant-at-arms.
a Based on the uncontradicted and credited testimony of Evans. West, though identi-
fied in the hearing room by Evans as the man who struck him, was not called as a witness,
nor did any other witness testify with respect to this incident. '
THE RANGAIRE CORPORATION 703
Myers, who was a member of the Cobell bargaining committee. Admittedly, Myers
suffers from some kind of disability which required that he be assigned to light work 42
During the afternoon of November 16, an over-the-road trucker arrived at the
Roberts plant with a load of steel, but refused to cross the picket line to make
delivery. One of Respondent's nonstriking employees was assigned to drive the
truck to the unloading position. A number of strikers were about the truck,43 and
fearing some possible threat to the driver, Cobell Plant Manager Pegues walked to
the area of the truck and stationed himself next to Emit Ragsdale. Walker and
Myers approached Pegues, and Myers, directing his remarks to Pegues, stated, "You
used to be a white man who decently worked men and women but now you have
changed and just like all the rest of them . . . A no good chicken ... [S. O. B.]."
Walker then told Pegues, "Always said you were the best of the bunch, but now you
are just like all the rest, a god damned chicken . [S. O. B.]. If you or any of the
rest will go out into the country with me I will whip your in a fair fight." 44
Bill Arnold, Roberts director of manufacturing, testified that on some unspecified
date "between Thanksgiving and Christmas," he happened to look out of his office
window toward the strike headquarters which the Union maintained across the street
from Respondent's plant; that he watched Myers for 15 to 20 minutes, and observed
the latter on his knees shooting tacks or nails onto the Company's parking lot, using
a bright green plastic slingshot for that purpose. Arnold estimated the distance
between himself and Myers when he observed this event as approximately 225 feet.
He further testified that- He observed the larger, but not the smaller, material landing
in the parking lot, at points varying from 30 to about 180 feet from where he was
standing; he observed the guard picking them up from the parking lot; and the
guard shortly thereafter delivered the tacks or nails to him (Arnold). A box con-
taining the tacks or nails which, Arnold testified, were the ones delivered to him by
the guard, was produced at the hearing. It was described by Arnold as containing
about 30 tacks of 3 types: (1) ordinary carpet tacks, (2) roofing nails about 1/2 inch
long with a large flat head; and (3) roofing nails about 11/2 inches long with a large
flat head. The guard who picked those up from the parking lot did not testify.45
I am unable to credit Arnold's testimony in this regard. While Arnold could
from a distance of about 225 feet probably discern that the figure he observed across
the street was Myers, an employee who was probably well known to him, I am
unable to believe that he could from that distance discern that what Myers had in
his hand was a slingshot, that it was bright green in color and made of a plastic
material, or that objects falling in the parking lot at a distance of 50 to 180 feet
from where he stood were tacks or nails of the type and size he described. Also,
I think it is highly improbable that tacks and nails of the size and type described
by Arnold could have been propelled the distance he indicated by means of a sling-
shot, particularly by a man who had suffered a stroke which affected his hand. More-
over, I regard it as significant that the guard who, according to Arnold, picked up
the tacks and nails immediately after they fell, apparently on his own and because
he was attracted by their falling, was not called as a witness, nor was the failure to
call him explained on the record.
"Smith testified that he had a letter in his files , presumably from a doctor, that Myers
should not be assigned to heavy work. Myers testified that he was in "poor health" having
suffered a stroke, and I assume that this is what the letter in Smith's file referred to.
4$ Those Included Emit Ragsdale , Virgil Shivers, and C. D. Myers, Roberts employees, and
Charles Davis, George Kirkham, Delmar West, and Herschel Walker, Cobell employees
44 Based on the credited and in part uncontradicted testimony of Pegues, Myers admitted
that he became agitated because of Respondent's attempt to get the truck across the picket
line, and that he told Pegues that he ( Pegues ) used to be a white man who decently worked
men and women , but that he had now found out differently and that Pegues was just like
the rest of them. Myers denied that he used the remainder of the language attributed to
him by Pegues . I do not credit Myers' denial because under the circumstances I believe
that Pegues' version of the remarks is more consistent with the probabilities . Walker
did not testify . Shivers and Kirkham, although testifying as witnesses , were not ques-
tioned regarding this incident.
45 Myers denied that he caused any tacks or nails to be thrown on the Company's
property , either by use of a slingshot , or in any other manner . According to Myers, the
stroke left him with a weak hand and affected his speech . My observation of Myers con-
firmed the impediment in his speech , and that he is a very frail man. Although he gave
his age as 59 , his physical appearance would lead one to believe that he is at least 70.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Other violations urged by General Counsel
In addition to the events heretofore discussed, the General Counsel contends that
Respondent violated Section 8(a)(1) and (5) of the Act by conduct which does
not fit precisely into the foregoing chronology of events. This relates to alleged
(1) unilateral institution of a written warning system, (2) unilateral change in policy
of posting job vacancies, and (3) refusal to bargain with employee members of the
Union's bargaining committee regarding in-plant conditions. The facts with respect
to those incidents follows:
a. The warning notice system
(1) At Roberts
On May 20, a day that she was not at work, employee Joyce Jiles went to the
plant to notify management that it would be necessary for her to take time off for
health reasons. While there she went into the work area and at the water fountain
spoke briefly with employee Virgil Shivers. Plant Manager Smith observed Jiles and
Shivers talking, and shortly thereafter Shivers was summoned to Smith's office.
There Smith reprimanded Shivers for violating company rules by leaving his work
station to talk to other employees.46 Shivers was asked to sign a written memoran-
dum which set forth Smith's complaint but he refused, saying that he had not there-
tofore heard of warning slips being used. Shiveis' request for a copy of the warning
slip was denied, as was his request that he be permitted to copy the contents thereof.
The warning slip of May 20 was placed in Shivers' personnel file. No warning slip
was placed in Jile's file with respect to this incident. Both Shivers and Jiles claim
that prior to this incident they had never heard of the use of warning slips by
Respondent , nor of any plant rule against talking during working hours.
Shivers further testified that in the early part of July, he was summoned to Smith's
office and told that his work had been timed and that a warning slip was being put
in his file for slowing down production. A warning slip to the effect stated was put
into Shivers' file. Shivers was not given a copy of the warning slip, nor was he
asked to sign it. Shivers, who had been employed by Respondent since November
1959, denied that he had engaged in a slowdown and testified that this was the first
time he had been warned about low production.
Plant Manager Smith testified that since he took over that position,47 it has been
his policy that when a reprimand was necessary it was to be given orally, or by
memorandum to the file, depending on his view of the seriousness of the circum-
stances involved. According to Smith, whose testimony in that regard I credit, a
copy of such memorandum was given to the employee at times, and at other times
not. Smith denied that since the Board election there had been any change in the
system of orally warning employees, or placing memorandums in the files, and
insisted that such warnings as were given thereafter were but a continuation of the
system which had been in effect at least since 1962. With reference to the Shivers-
Jiles incident, Smith testified that the warning was given because the conduct involved
a violation of the rule against talking and visiting in the plant, except during the
lunch period and breaks. With respect to the slowdown, Smith testified he repri-
manded Shivers because of a report to him by the foreman involved that Shivers
was engaging in a slowdown; that he directed a check of the counter on Shivers'
machine be made before and after the reprimand, the results of which were reported
to him (Smith) the following day; and that a memorandum of the information was
also placed in Shivers' file 48 In addition, Smith produced a memorandum dated
February 24, 1963, which had been placed in Shivers' file, concerning his complaint
about having been assigned temporarily to a job from which he had, at his request,
been transferred, and that he was told that he would have to perform this job from
time to time until a suitable replacement could be found, because of his knowledge
and experience on that job. Smith was unable to state whether a copy of this
memorandum was given to Shivers, or whether he was told that such a memorandum
16 There is a slight conflict between Shivers and Smith as to the exact language em-
ployed. Basically, they agree on the substance of what was said at this time Also, in
his testimony, Smith seems to draw a distinction between "warning" slips and "yellow"
slips. I see no real distinction, and for the sake of clarity refer to both as warning slips
+7 Smith became plant manager in 1962; prior to that he was sales manager, but
served as a part of a management committee.
11 This memorandum states that prior to the warning Shivers produced 818 pieces in
3y_, hours, and that after the warning he produced 1,556 pieces in 21/2 hours
THE RANGAIRE CORPORATION 705
existed. Shivers admitted that he was in Smith's office in February 1963, but claimed
that the discussion related to his transfer. He was not interrogated concerning the
memorandum or the incident therein referred to.
(2) At Cobell
George Kirkham, a vice president of the Local Union, had been employed by
Cobell since 1959 as a press brake operator in fabrication. On a day late in April,
because of illness, Kirkham did not report for work at the usual hour. Having no
telephone and no one else at home to report for him, he did not notify the Company
of the circumstances. Feeling better in the afternoon, Kirkham reported for work
and went directly to his job. Shortly after beginning work, Supervisor Hemphill
asked Kirkham where he had been and why he had not notified the Company of his
inability to report for work that morning. Kirkham explained that he had been ill,
and that he had no telephone and no one to send out to make the call for him.
Hemphill told Kirkham to go home and return the following morning, at which time
he would be told if he had a job or not. Kirkham did so, and the following morning,
when he reported for work, was told by Hemphill that the matter would be over-
looked on this occasion, but not to let it happen again. Hemphill also gave Kirkham
a copy of a warning slip and told the latter that the same was being put in his
(Kirkham's) personnel file. Kirkham testified that there had been prior occasions
when, without notifying the Company, he had not reported for work at the usual
starting hour, but came in later in the day, and that when he explained the reason
therefor nothing further was said. This was the one and only warning slip that
Kirkham received during the period of his employment. He testified that he never
heard of other employees receiving warning slips , until the incident involving Shivers,
an employee of the Roberts Division, as above set forth. Kirkham did not deny that
a company rule regarding absences and tardiness was posted at the timeclock, which
he used four times a day, but testified that he never read it.
Paul Pegues, brother of Plant Manager Pegues, testified that shortly before testify-
ing he removed and brought to the hearing room a notice posted by each of the two
timeclocks in the plant, directing all personnel to report absences either by calling
in or advising the foreman, and that failure to do so is "grounds for immediate dis-
missal." The notice referred to is undated, but was posted on top of another notice,
dated July 8, 1961 , relating to punching the timeclock.
Plant Manager Pegues testified that Kirkham's absence from work without author-
ity on this occasion was reported to him by Hemphill, and that he (Pegues) authorized
issuance of a warning slip for violation of the aforementioned rule which had been
posted for "a number of years." He denied that the rule referred to had been posted
at the timeclock only since the Board election. Pegues further testified that the
practice of issuing warning slips, as needed, has been Respondent's practice as far
back as 1957, to his knowledge, and he produced a number of such slips issued to
employees, dating back to 1957. Pegues testified that he did not have a complete
search of all the files made, and that he was sure other such slips existed 49
With respect to the warning slips generally, the evidence shows that by letter
dated May 7 Backinger protested the institution of a warning notice system. Respond-
ent, in reply, advised Backinger that its warning notice system had been in effect for
many years, and offered, if the Union objected to the system then being used, to
negotiate for a mutually agreeable system to replace it. Backinger admits that at
no time during the approximately 6 months of negotiations did he bring up for dis-
cussion the subject of warning slips.
b. Alleged change in practice of posting jobs
The General Counsel contends that at the Roberts Division Respondent had a
policy of posting job vacancies, and that it unilaterally changed this policy after the
Union's certification. To support this contention the General Counsel relies on the
testimony of Plant Manager Smith, called and examined pursuant to rule 43(b)
Federal Rules of Civil Procedure. Smith admitted that there were some job postings
in 1962, 1963, and in the first 3 months of 1964, and that there has been no job posting
since March 6, 1964.5° The evidence is uncontradicted, however, that not all job
vacancies were posted. Thus, while there were 3 job postings for the entire year
1963, 11 jobs were filled in that period without postings. Joyce Jiles, an active pro-
"To the extent that Kirkham's testimony may be in conflict with that of Plant Man-
ager Pegues and his brother, I credit the latter. Hemphill did not testify
60 The actual dates of job postings were: July 23, 1962, April 24, July 24, and August 8,
all in 1963; and February 6 and 17 and March 6, all in 1964
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union employee, admitted that "a number of times" employees transferred from one
job to another without job notices being posted. There is no evidence that since
the advent of the Union there were in fact job vacancies, or that if such vacancies
did exist, that there was any discrimination m the manner in which they were filled.
c. Alleged refusals to bargain with individual members of bargaining committee
As previously indicated, the certified union is the International. The latter appar-
ently sought to carry out its functions through its Local 424. Also, as heretofore
stated, at the first negotiating meeting on May 28, the Union gave Respondent a list
of its officers and bargaining committee members, which shows Virgil Shivers as a
member of the Roberts bargaining committee.51 On or about May 20, Shivers
went to Plant Manager Smith's office and presented three grievances. The first
involved the complaint of a woman that paint fumes were making her ill. Shivers
did not testify as to his discussions with Smith regarding this matter, or what position
Smith took regarding it, he merely testified that Smith looked into and corrected
the situation. The details of the second alleged grievance are not disclosed by the
evidence, Shivers merely testifying that it involved a lady who was trimming wires,
and that Smith said "if she could not do the job he would have to replace her."
The third incident referred to by Shivers as having been discussed with Smith at this
time involved a situation where a junior employee had allegedly been given some
30 minutes of overtime, Shivers feeling that the overtime work should have been
posted Regarding this grievance, Shivers testified, Smith directed him to return to
work and mind his own business, that he (Smith) would post the job or not, as he
saw fit.
Regarding an incident in September, Shivers testified that he sought to talk with
Smith about an alleged failure to post what he (Shivers) regarded as a newly created
job, and that when he told Smith the nature of the matter he wished to discuss,
he was directed to mind his own business, that he (Smith) was running the Com-
pany's business.
Another incident referred to by Shivers was on October 24, when he attempted to
discuss with Smith the discharge of employee Eaton.52 According to Shivers, when
he told Smith the nature of the subject he wished to discuss, the latter directed Shivers
to return to work, that the matter was none of Shivers' business. Later that day,
during a break, Shivers asked Eaton's supervisor if the latter knew the reason for
Eaton's discharge. The supervisor admitted that he did, but refused to discuss the
matter with Shivers. According to Shivers, he then stated to the supervisor, "You
are refusing to bargain with me then," and that the supervisor replied, "Yes, I am
[you] will have to see [Plant Manager] Kenneth Smith "
Both Shivers and Backinger admit that the subject of the aforementioned incidents
were never brought up or discussed at the formal bargaining sessions , nor did the
Union raise at any of such sessions the alleged failure of Smith to discuss grievances
with Shivers.
Smith did not deny that Shivers sought to talk with him regarding the above-
mentioned matters, or that he gave the replies Shivers attributed to him. The fair
inference from Smith's testimony was that the union representatives had never told
him that he was expected to bargain with the plant people, except at the formal
bargaining sessions , and that he did not do so. Company Attorney Lincoln testified
that at the first bargaining session on May 28, when there was discussion as to who
the contracting parties would be, he told Union Representative Backinger that he
(Lincoln) did not want employees running to the office with all sorts of grievances
before a contract had been agreed upon and a grievance procedure established, and
that if any problems arose, Backinger should take them up with him (Lincoln).
Lincoln further testified that Backinger agreed to this procedure, and while bringing
other matters to Lincoln' s attention , Backinger never complained about Smith's
failure to discuss in-plant matters with Shivers, or any other employee. Lincoln's
testimony in this regard is undenied.53
m Union Representative Backinger testified that at this meeting he verbally informed
Respondent that Shivers was chairman of the bargaining committee. Plant Manager Smith
denied that he was so informed, but admitted that he received the list of officers and
committee members referred to by Backinger. I deem it unnecessary to resolve the
conflict.
62 Eaton's discharge was the subject of an 8(a)(3) charge filed by the Union. The
parties stipulated that said charge was either withdrawn by the Union or dismissed by
the Regional Director.
as Shivers testified that he did "not recall" such statements by Lincoln I do not con-
strue this as a denial that such statements were made by Lincoln.
THE RANGAIRE CORPORATION 707
Concluding Findings
1. Independent interference, restraint, and coercion
By the following incidents, more fully set forth in the foregoing findings of fact,
I find and conclude that Respondent independently violated Section 8(a)(1) of
the Act:
(a) Plant Manager Pegues' conversation with Rosa Myers, as set forth in section
I, B, 1, b, (3), above. There was not only interrogation of Myers as to her union
activity and that of her fellow employees, but a clear disclosure that the union activity
of the employees was under Respondent's surveillance. Pegues' conversation with
Myers was plainly not privileged as a legitimate attempt to ascertain whether
Respondent was under the legal duty to recognize and bargain with the Union, as
the Board held in Blue Flash Express, Inc., 109 NLRB 591. That issue had been
put at rest some 5 months earlier by the Board's certification, and Respondent had
recognized and bargained with the Union for more than 3 months when this con-
versation took place 54
(b) Attorney Lincoln's statements at the meeting of September 14 and by inference
at the September 29 meeting, as found in section I, B, 1, b, (1), above, that the
employees were not covered by Respondent's pension plan because they were now
members of a collective-bargaining unit. Such a provision in a profit-sharing or pen-
sion plan has been held by the Board and the courts to be a per se violation of Section
8(a) (1) of the Act. Jim O'Donnell, Inc., 123 NLRB 1639; Channel Master Corp.,
148 NLRB 1343; Melville Confections, Inc., 142 NLRB 1334, enfd. 327 F. 2d 689
(CA. 7), and cf. Tofjenetti Restaurant Company, inc., 136 NLRB 1156. That the
statement referred to was made orally, rather than in the pension plan itself, as was
the fact in the cited cases, does not call for a different result55
With respect to the remaining incidents urged by the General Counsel as independ-
ent violations of Section 8(a) (1), namely the alleged unilateral institution of a warn-
ing notice system, more fully discussed in section I, B, 2, above,56 I find and conclude
that the General Counsel has failed to prove by a preponderance of the evidence that
Respondent violated Section 8(a)(1) of the Act. The warning system had been in
effect for many years; it was not adopted to combat or undermine the Union. The
evidence is insufficient to establish that Respondent permitted the system to lie
dormant until the advent of the Union, and then revived it to retaliate against employ-
ees for their union adherence. The testimony of Jiles, Shivers, and Kirkham that
they had not therefore heard of the use of the warning system is negative in character,
and is overcome by the positive evidence that it had been used for several years prior
to these incidents. In fact one such warning had theretofore been issued to Shivers.
Whether Respondent was justified in issuing warning slips to Jiles, Shivers, and Kirk-
ham, under the facts set forth, is not the issue. The only issue is whether they were
issued for a prohibited purpose, and as to this I find the General Counsel's evidence
to be insufficient. Accordingly, I shall recommend dismissal of this allegation of the
complaint.
2. The 8(a) (5) aspects of the case
Section 8(d) of the Act imposes upon the negotiating parties a mutual obligation
to meet and confer with a view of reaching agreement on the terms of a collective-
bargaining agreement. Although neither party is required by the Act to make con-
cessions , or to agree to any particular proposal advanced by the other, Section 8(d)
does require that the negotiations be carried on "in good faith." The requirement
of good faith in the bargaining includes the obligation to "enter into negotiations
with an open mind and a sincere desire to reach agreement." (Braswell Motor Freight
Lines, Inc., et al., 154 NLRB 101.) In other words, sincerity of purpose is the hall-
mark of good-faith bargaining. Whether the standard of good faith has been met in a
54 On motion of the General Counsel the complaint herein was amended by striking
paragraph 7(a) thereof which alleged in-plant surveillance by certain supervisors. Hence
I have made no findings with respect to that allegation.
551 am only holding that Lincoln's statement as found herein to have been made was
violative of Section 8(a)(1). I do not reach, and hence do not decide whether the plan
as actually drafted was violative of Section 8(a) (1), or whether, had Lincoln accurately
stated the provision of the plan, such a violation could be found, because the complaint
did not so allege, nor did the General Counsel so contend
se The alleged change in job-posting policy, and the alleged refusal to bargain with
employees regarding plant conditions, will be discussed in connection with the 8(a) (5)
aspects of the case.
221-374-66-vol. 157-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular case depends, not so much on the position taken with respect to particular
issues, but rather on an overall evaluation of the entire course of the bargaining
negotiations . While the Board may not sit in judgment on whether or not contract
terms proposed or resisted in the course of negotiations were reasonable positions, it
is not precluded "from determining motives based on an evaluation of the bargaining
positions taken by the parties at the negotiating table." (East Texas Steel Castings
Company, Inc., 154 NLRB 1080.) While this may, to a degree, require an assessment
of the proposals themselves (East Texas Steel Castings Company, Inc., supra), it is
one of the means useful in determining the motives or "good faith " of the parties.
Applying this standard to my evaluation of the entire record in this case, I find and
conclude that Respondent failed to bargain in good faith with the Union. Rather, I
am convinced , and I so find and conclude , that Respondent 's approach to the bargain-
ing from its inception was to embarrass the Union at every opportunity , and to talk
as long as might be necessary , but make certain that an agreement , if reached, would
be only on such terms as would demonstrate to the employees that the Union, by the
process of collective bargaining , could gain them nothing . I predicate this conclusion
upon the totality of the following factors:
1. Early in the negotiations Lincoln told the Union 's negotiating committee, and
admittedly in the course of negotiations frequently repeated , that he regarded wage
rates as controlled by supply and demand; that as Respondent was able to fill its labor
requirements at the rates then being paid those rates were adequate , and "that [it] did
not intend to change them unless [the Union ] could show us some particular out of
line classification ." When Respondent did, after about 4 months of negotiations,
submit a wage proposal on October 12, it contained the rates then prevailing in the
plant . This was, in effect, telling the Union that wage rates will not be discussed,
except to the extent that the Union could demonstrate that a particular classification
was "out of line," and that the burden would rest with the Union to demonstrate that
fact . As the Board said in General Electric Company, 150 NLRB 192, while this
type of approach "eliminates the `ask-and-bid' or `auction' form of bargaining," it has
the effect of "devitilizing negotiations and collective bargaining and robs them of their
commonly accepted meaning." Such an approach , continued the Board , is in prac-
tical effect "akin to that of a party who enters into negotiations `with a predetermined
resolve not to budge from an initial position ,' an attitude inconsistent with good-faith
bargaining."
2. The Union 's initial contract proposals provided that all conditions of employ-
ment in effect at the time of the Board election , "including vacation bonus, Christmas
bonus, pension plan etc. shall remain in effect unless changed by mutual agree-
ment ...." The initial proposals submitted by Roberts and Cobell on June 18 and
September 14, respectively, as well as in the final proposals submitted on October 12,
provided that bonuses and pensions were at the sole discretion of the Employer, were
not required by the contract, and could be granted or withheld at the Employer's
discretion . In view of Respondent 's past practice with respect to bonuses and pen-
sions, and what transpired in August and September with respect to the vacation
bonus, set forth in section I, B, 1, a, above , Respondent could hardly have presented
these proposals , particularly those submitted on October 12, with any reasonable idea
that they could or would merit serious consideration . In fact, Respondent by implica-
tion receded from its position that the vacation bonus could be paid or withheld by
the Employer, at its discretion, by paying the vacation bonus in September, in accord-
ance with Lincoln's promise that it would be paid if such was the past practice. More-
over, according to Lincoln's own testimony, he told Backinger at the meeting of Sep-
tember 14 about the provision in the pension plan in order to alert him that he would
have to bargain about the continuance of the pension plan. In view of this, the inclu-
sion of a proposal , on October 12, that pensions should be in the sole discretion of the
employer, could only have had as its purpose provoking useless discussion on a pro-
posal which Respondent had no intention of insisting upon. Such conduct can hardly
be called an approach to negotiations "with an open mind and a sincere desire to
reach agreement ." (Braswell Motor Freight Lines, Inc, supra.)
3. As heretofore stated, the Roberts employees were not paid a vacation bonus
prior to the vacation shutdown in August 1964, in accordance with past practice.
The bonus was, however, paid on the Friday preceding Labor Day, after Backinger
had by letter of August 21 complained about the failure to pay it before the vacation
shutdown. Plant Manager Smith, when asked why the bonus was not paid before the
plant closed for vacation, did not claim it was because of some oversight or error at
management level, nor did he reply to Backinger's letter of August 21. The only
explanation he gave, and this when he testified, was that it was his decision whether
the bonus should be paid or not, and if so when, and that in 1964 he just decided not
to pay it before vacation . Although Smith insisted that Backinger 's letter of
THE RANGAIRE CORPORATION 709
August 21 had nothing to do with his decision to pay the bonus on the Friday pre-
,ceding Labor Day, the only explanation he gave for paying it at that time was that
he so decided.
If Smith, as he testified, gave consideration to whether and when the bonus should
be paid, it is safe to assume that he did not make his decision without consulting
Lincoln, and there can be no doubt that Lincoln is not a novice in the field of labor
relations. Lincoln certainly knew, and must have told Smith, that the unilateral
abandonment of the past practice of paying a vacation bonus while contract negotia-
tions were in progress would, under the Supreme Court's decision in N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, be a plain violation
of Section 8(a)(5) of the Act. It is thus clear that Smith was not withdrawing the
bonus from the Roberts employees; he merely decided to pay it at a time that suited
his purpose. That purpose, I find and conclude, was to disparage the Union in the
eyes of the employees, and to give the latter a visual demonstration that Respondent
held the power and the purse strings, and that it, and not the Union, was the source of
all employee benefits, past and future. As the Board said in General Electric, supra,
"It is inconsistent with [an employer's obligation under the Act] to mount a campaign
... for the purpose of disparaging and discrediting the statutory representative in the
eyes of its employee constituents, to . . . create the impression that the employer
rather than the Union is the true protector of the employee's interests."
4. Respondent's statement at the September 14 meeting that the employees had lost
their right to participate in the pension plan, and its insistence in the subsequent
negotiations, prior to November 11, that it would only agree to add to the wage rates
its contribution to the pension plan on behalf of the employees involved, was, I find
and conclude, for the purpose of disparaging the Union in the eyes of its employee
members, and to demonstrate to them that Respondent would dictate what benefits
employees would receive. Lincoln's letter of October 12, expressing a willingness to
bargain with the Union regarding inclusion of the employees under the pension trust,
and on the same day submitting contract proposals providing that bonuses and pen-
sions "are given at the sole discretion of the employer ... and may be granted or
withheld at the employer's discretion," could have had no other purpose. All that
could result therefrom is that which did in fact result, needless discussion concerning
a proposal which Respondent never intended to urge or rely on. Such conduct can
hardly be characterized as an approach to the bargaining table "with an open mind
and a sincere desire to reach agreement." (Braswell Motor Freight Lines, Inc.,
supra.) Moreover, although at first declining, as I have found, to furnish the Union
with a copy of the pension plan, Respondent did agree to do so after Backinger had
made written request therefor by letter of November 2 However, even at that time,
compliance with Backinger's request appears to have been tardily and grudgingly
complied with. Lincoln's letter of November 18, in reply to Backinger's written
request for a copy of the pension plan, which Respondent maintains in printed or
mimeographed form, was not forwarded with Lincoln's letter of November 18, nor did
he tell Backinger that a copy could be had at Respondent's plant. Instead, Lincoln
argues at great length that there had been no refusal to furnish a copy of the plan, and
that Respondent bore no responsibility for the failure of the parties to reach agree-
ment, or for the strike which had resulted and was then current Even assuming that
Lincoln did not have a copy of the pension plan available to him when he wrote the
letter of November 18 from his office in Little Rock, the record shows, as Lincoln
himself stated in his letter of December 7, that he was in Cleburne on November 23,
24, and 25, and although he admittedly talked on the telephone with Backinger during
that period, a copy of the plan was not offered at that time Even when the plan was
made available to Backinger on December 3, it was not tendered voluntarily, but only
after Backinger made specific request therefor. Respondent seeks to justify this con-
duct by the statement that at the meeting of December 3 Backinger had not requested
a copy of the plan, and it made available only what was asked for. The effect of
Respondent's conduct in this regard is vividly demonstrated by the fact that after the
plan was made available to the Union on December 3, and the Union had studied it,
the parties at their next meeting reached agreement that the plan would continue in
effect, as in the past, on behalf of the employees involved
5 In view of Respondent's conduct with respect to the pension plan, I must and
do find and conclude that its insistence prior to the meeting of October 27 that all
bonuses be abolished and that their cost to Respondent be added to the wage rates,
without piercing the maximums for the several classifications, was also for the pur-
pose of disparaging the Union in the eyes of its employee members. As was the case
with respect to pensions, Respondent's contract proposals submitted on October 12
proposed that all bonuses be in the sole discretion of the Employer At the meetings
of October 19 and 20, the first meetings following the submission of the aforesaid con-
710 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
tract proposals, Respondent advanced the proposal that the cost of the bonus be added
to the wage rates, to the extent above indicated. That proposal (and the similar pro-
posal regarding pensions) appears to have been the major, if not the sole, topic of
discussion at the meetings of October 19 and 20. This fact strongly indicates, as I
have heretofore stated with regard to the subject of pensions, that the proposal on
bonuses contained in the October 12 proposal was not advanced by Respondent in
good faith, or with any idea that it would or should merit serious consideration on the
part of the Union.
6. Finally, and perhaps of the greatest significance, is the manner in which Respond-
ent handled the applications for reinstatement by the striking employees. As hereto-
fore noted, the Union's initial contract proposals, submitted in May, provided for
plantwide seniority. In its initial contract proposals, submitted in June, Respondent
proposed departmental seniority. In discussing this issue Respondent urged that in its
operation plantwide seniority could, in the event of a layoff, result in employees being
assigned to highly skilled jobs in certain departments, for which they did not have
the requisite qualifications or training, solely because of their years of service in plant,
and insisted that only a provision for departmental seniority could adequately protect
Respondent's interest in that regard. As heretofore stated, the Union receded from
its proposal and agreed to seniority on a departmental basis. However, when Respond-
ent's arguments were put to the test by the reinstatement applications of the strikers,
Roberts Plant Manager Smith, to determine the order in which the applicants should
be interviewed, prepared a seniority list, not on the basis of departmental seniority,
but on the basis of plantwide seniority-the very system which Respondent urged to
be unfair to it-and interviewed the applicants in that order. The use of this system,
and the intervening hiring of Prince, as set forth above, at a time and in a manner
different from that which Smith had notified the Union would be followed in interview-
ing the returning strikers, resulted in Virgil Shivers, a member of the Union's Roberts
bargaining committee, being denied reinstatement, when admittedly Shivers would
have been the first hired for his department had departmental seniority been followed.
In fact, of the 10 Roberts employees listed in the Union's letter of May 27 as officers
or bargaining committee members, only 2 were reinstated by Respondent. That such
a high percentage of union officers and committee members should wind up without
reinstatement, merely as a fortuity, seems highly improbable. Cf. Camco, Incorpo-
rated, 140 NLRB 361, 365, enfd. 340 F. 2d 803. Moreover, as heretofore stated,
when Respondent thereafter offered employment to some employees who were not
reinstated on November 30, no such offers were made to union officers or committee
members, although in many instances they had seniority, whether departmental or
plantwide, over some employees who were recalled.
Accordingly, on the totality of the foregoing factors, I find and conclude that
Respondent has failed and refused to bargain with the Union in good faith and
thereby violated, and continues to violate, Section 8(a) (5) and (1) of the Act 57
I further find and conclude that Respondent independently violated Section 8(a)
(5) and (1) of the Act by (1) unilaterally changing the time of paying the vacation
bonus, and (2) initially refusing, and thereafter unduly delaying, providing the
Union, pursuant to the latter's request, with a copy of Respondent's penison plan.
I also find and conclude that the General Counsel has failed to establish by a pre-
ponderance of the evidence that Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally changing its policy on posting job vacancies, or that under the cir-
cumstances involved in this case it refused to bargain with Shivers regarding plant
conditions or grievances. Accordingly, I shall recommend that these allegations of
the complaint be dismissed.
3. The character of the strike
Having concluded that Respondent violated Section 8(a)(1) and (5) of the Act,
it is necessary to consider whether the strike which began on October 26 and ter-
minated on November 25 was, as alleged in the complaint and denied by Respondent,
caused or prolonged by Respondent's unfair labor practices. The reasons assigned
by the Union for its strike were discussed at the union meetings of September 21 and
October 21, as set forth above. While some of the grievances advanced and dis-
57 Nothing herein shall be construed as a holding that any one of the six factors above
set forth, standing alone, would be a per ae refusal to bargain in good faith. I only
hold that upon consideration of the record in its entirety , the totality of Respondent's
conduct convinces me that it has not bargained with the Union in good faith, as required
by the Act.
THE RANGAIRE CORPORATION 711
cussed at those meetings have not been specifically found to be unfair labor prac-
tices or evidence thereof, it is clear that the Union was protesting and ultimately
struck because of Respondent's failure to bargain in good faith. Accordingly, I
find and conclude that the Union's strike on October 26 was, at least in part, caused
-or prolonged by Respondent's unfair labor practices, and its failure to reinstate to
their former jobs, without prejudice to their seniority or other rights and privileges,
all strikers as the Union requested, after abandoning their strike unconditionally,
,constituted discrimination against such strikers because of their concerted activities,
and violated Section 8(a)(3) and (1) of the Act. Accordingly, I shall recommend
that Respondent be required to reinstate to their former or substantially equivalent
Jobs, without prejudice to their seniority and other rights and privileges, all strikers
who have not heretofore been so reinstated.
The misconduct of strikers West and C. D. Myers, to the extent I have heretofore
found that such did occur, I find and conclude, does not bar their right to such
reinstatement.
In the case of Myers, the vulgar language he used toward Plant Manager Pegues,
while not to be condoned, was no more than picket line exuberance resulting from
highly charged emotions all too often engendered in labor disputes, particularly
'when a strike results. Moreover, the record leaves no room for doubt that Respond-
ent waived this misconduct by Myers. Plant Manager Smith admitted that when
Myers applied for reinstatement after the strike ended, he (Smith) told Myers
that reinstatement was being denied because no job was available for which Myers
had the training or physical ability. Admittedly, Smith did not tell Myers that rein-
statement was being denied because of any misconduct on his part while engaged in
picketing. It is significant also, that when Herschel Walker applied for reinstatement
.and was interviewed by Pegues,58 the latter denied reinstatement to Walker, not
because of Walker's vulgar language on the occasion in question, but because
Walker did not have the requisite experience for the only job then allegedly available.
The conduct of Delmar West was also no more than a display of picket line
exuberance, and apparently was regarded as a trivial matter by the parties. Also as
in the case of Myers, Respondent waived its right to rely on any misconduct in
which West may have engaged. When West applied for reinstatement and was
interviewed by Plant Manager Pegues, the latter did not rely on the incident re-
ferred to, but admittedly declined reinstatement to West because "all vacancies
.had been filled."
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times since April 28 the Union has been the duly designated collective-
bargaining representative, within the meaning of Section 9(a) of the Act, of Respond-
ent's employees in the following units which are appropriate for the purpose of
collective bargaining, within the meaning of Section 9(b) of the Act:
Unit A. All production and maintenance employees of Respondent's Roberts
Manufacturing Division employed at its Cleburne, Texas, plant exclusive of office
-clerical employees, draftsmen, laboratory technicians, professional employees, paint
department assistant foremen, guards, watchmen, and supervisors as defined in
the Act.
Unit B: All production and maintenance employees of Respondent's Cobell Indus-
tries Division employed at its Cleburne, Texas, plant exclusive of office clerical
employees, draftsmen, laboratory technicians, professional employees, guards, watch-
men, and supervisors as defined in the Act.
4. By interrogating Rosa Myers and leaving the impression that her union activ-
ities, as well as the union activities of her fellow employees, were under Respond-
ent's surveillance , and by announcing to the Union's bargaining committee, in the
course of bargaining negotiations, that Respondent's employees were excluded from
its pension plan, Respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby
engaged in and is engaging in unfair labor practices proscribed by Section 8 (a) (1)
of the Act.
m If anything, the language Pegues attributed to Walker on the occasion in question
was even more vulgar and reprehensible than that used by Myers.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By failing and refusing, since May 28, 1964, to bargain in good faith with the-
Union as the exclusive representative of the employees in the aforesaid units,
Respondent has engaged in and is engaging in unfair labor practices proscribed by
Section 8(a) (5) and (1) of the Act.
6. By unilaterally changing the time for paying employees their vacation bonus
and by at first refusing, and later unduly delaying, furnishing the Union with a copy
of its pension plan, Respondent has engaged in and is engaging in unfair labor
practices proscribed by Section 8 (a) (5) and (1) of the Act.
7. The strike engaged in by Respondent's employees in the aforesaid units was, at
least in part, caused or prolonged by Respondent's aforesaid unfair labor practices.
8. By failing and refusing since November 30, 1964, to reinstate all of the strikers
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, Respondent discriminated against such strik-
ers in regard to the hire or tenure of their employment because of their concerted
activities, thereby discouraging membership in the Union, and thus engaged in and'
is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of
the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that since May 28, 1964, Respondent has failed and refused
to bargain in good faith with the Union as the representative of its employees in the
appropriate units involved, I shall recommend that it be required, upon request, to
bargain in good faith with the Union as such representative, and if an understanding
is reached embody the same into a signed agreement
It having been found that Respondent's employees who engaged in a strike between
October 26 and November 25, 1964, were unfair labor practice strikers, and that
application for reinstatement was made on their behalf by the Union on November 25,
and that pursuant thereto Respondent has fully reinstated some but not all of said
strikers, it will be recommended that to the extent it has not heretofore done so,
Respondent offer to each of the aforesaid striking employees, including Delmar West
and C. D. Myers, immediate, full, and unconditional reinstatement to his or her
former or substantially equivalent position, without prejudice to their seniority or
other rights and privileges, dismissing, if need be, any person hired on or after Octo-
ber 26, 1964, and make each of such employees whole for any loss of earnings they
may have suffered, by paying to each of them a sum of money equal to that which
they would have earned as wages during the period beginning November 30, 1964, to
the date such employee is or was in fact fully reinstated, less net earnings during
said period, in a manner consistent with Board policy as set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent be required to preserve and, upon
request, make available to the Board, all records necessary or useful in computing
the amount of backpay due the several employees.
It will further be recommended, in view of the nature of the unfair labor practice
found to have been engaged in by Respondent, that it cease and desist from in any
manner infringing upon the rights guaranteed to employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that The Rangaire Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Allied Industrial Workers of America,
AFL-CIO, and its Local Union 424, as the exclusive representative of its employees
in the following appropriate units:
Unit A: All production and maintenance employees of Respondent's Roberts
Manufacturing Division employed at its Cleburne, Texas, plant exclusive of office
clerical employees, draftsmen, laboratory technicians, professional employees, paint
department assistant foreman, guards, watchmen, and supervisors as defined in
the Act.
Unit B: All production and maintenance employees of Respondent's Cobell Indus-
tries Division employed at its Cleburne, Texas, plant exclusive of office clerical
employees, draftsmen, laboratory technicians, professional employees, guards, watch-
men, and supervisors as defined in the Act
THE RANGAIRE CORPORATION 713
(b) Coercively interrogating employees with respect to their membership in, view
about, or activities on behalf of, any labor organization.
(c) Engaging in any conduct which can reasonably be calculated to convey to its
employees the impression that their union activities are under surveillance.
(d) Instituting any change in the terms and conditions of employment of the
employees in the aforesaid appropriate units, without bargaining with their exclusive
bargaining representative concerning such change.
(e) Informing employees that their right to participate in a pension plan has
been forfeited or otherwise lost by reason of their selection of a labor organization
as their collective-bargaining representative.
(f) Upon request, failing or refusing to promptly furnish the aforesaid labor
organization with information or data in its possession, necessary or useful to said
labor organization for bargaining concerning wages, hours, or other terms and
conditions of employment of employees in the afoi esaid units.
(g) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the aforementioned Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
2. Take the following affirmative action which the Board finds necessary to
effectuate the policies of the Act •
(a) Upon request, bargain collectively with Allied Industrial Workers of America,
AFI-CIO, and its Local Union 424, as the exclusive representative of the employees
in the aforesaid appropriate units, and if an understanding is reached embody the
same into a signed contract.
(b) To the extent that it has not heretofore done so, offer immediate, full, and
unconditional reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges, to all employees
who were on strike at any time between October 26 and November 25, 1964, dis-
missing, if necessary, any person hired by it on or after October 26, 1964.
(c) Make whole each of the employees referred to in paragraph numbered 2(b)
above, for any loss of earnings they may have severally suffered, for the period, and
in the manner set forth in the section entitled "The Remedy."
(d) Notify each employee entitled to reinstatement as provided herein, who may
be serving in the Armed Forces of the United States, of their right to full reinstate-
ment upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after discharge from the Armed
Forces.
(e) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for inspection and copying, all payroll records, social security
records, timecards, personnel records and reports, and all other records necessary
or useful in determining the right of any employee to reinstatement under the provi-
sions hereof, the time and extent of such reinstatement, or in computing the amount
of backpay due, as herein provided.
(f) Post at its plant or plants in Cleburne, Texas, copies of the attached notice
marked "Appendix." 59 Copies of said notice, to be furnished by the Regional
Director for Region 16 of the Board (Fort Worth, Texas), shall, after being duly
signed by its authorized 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.
Reasonable steps shall be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the aforesaid Regional Director, in writing, within 20 days from the
receipt of this Decision, what steps it has taken to comply herewith.6°
It is further ordered that all allegations of the compaint not herein specifically
found to constitute violations of the National Labor Relations Act, as amended, be,
and the same are, dismissed.
10 In the event this Recommended Order is adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice. If the Board's Order is enforced by a decree of a United States
Court of Appeals, the notice shall be further amended by the substitution of the words
"a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a
Decision and Order."
80 In the event this Recommended Order is adopted by the Board, this provision shall
be modified to read: "Notify the aforesaid Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply herewith."
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees regarding their member-
ship in, views about, or activities on behalf of, any union.
WE WILL NOT engage in any conduct reasonably calculated to give our
employees the impression that their union activities are under surveillance.
WE WILL NOT tell our employees that their right to participate in any pension
plan we maintain has been forfeited or otherwise lost by reason of their selec-
tion of a collective-bargaining representative.
WE WILL NOT refuse to bargain collectively in good faith with Allied Indus-
trial Workers of America, or its Local 424, as the exclusive representative of
our employees in the following units:
Unit A: All production and maintenance employees of Respondent's
Roberts Manufacturing Division employed at its Cleburne, Texas, plant
exclusive of office clerical employees, draftsmen, laboratory technicians,
professional employees, paint department assistant foreman, guards, watch-
men, and supervisors as defined in the Act.
Unit B: All production and maintenance employees of Respondent's
Cobell Industries Division employed at its Cleburne, Texas, plant exclusive
of office clerical employees, draftsmen, laboratory technicians, professional
employees, guards, watchmen, and supervisors as defined in the Act.
WE WILL NOT change any terms or conditions of employment of any employee
in the aforesaid units without first bargaining with the Union concerning such
change.
WE WILL NOT refuse or fail to promptly furnish to the Union, upon its request,
any information or data in our possession which is necessary or useful to said
Union in bargaining with us concerning the wages, hours, or other terms and
conditions of employment of employees in the aforesaid units.
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 orga-
nizations, to join or assist the aforementioned Union, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
WE WILL, upon request, bargain collectively in good faith with the aforesaid
Union as the exclusive representative of the employees in the aforesaid units,
and embody any understanding reached into a signed contract.
WE WILL, to the extent that we have not heretofore done so, offer all employ-
ees in the aforesaid units who engaged in a strike against us between October 26
and November 25, 1964, immediate, full, and unconditional reinstatement to
their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing, if necessary, any person
hired by us on or after October 26, 1964.
WE WILL make whole each employee covered by the preceding paragraph
hereof for any loss of earnings they may have severally suffered by reason of
our failure to fully reinstate them on November 30, 1964.
WE WILL preserve and make available to the Board all our records necessary
or useful in determining the right of any employee to reinstatement, or in
computing the amount of backpay due.
All our employees are free to join or assist Allied Industrial Workers of America,
AFL-CIO, or any other labor organization, or to refrain from doing so.
THE RANGAIRE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify all persons entitled to reinstatement if presently serving
in the Armed Forces of the United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act and Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
LOCAL 25 , INT'L B 'HOOD OF ELECTRICAL WORKERS 715
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131.
Local 25, International Brotherhood of Electrical Workers, AFL-
CIO and Sarrow-Suburban Electric Co., Inc., and Brunswick
Hospital Center, Inc. and Industrial Workers of Allied Trades,
Local 199, affiliated with National Federation of Independent
Unions, Party in Interest . Case No. 29-CD-7. March 15, 1966
DECISION AND ORDER
On December 29, 1965, Trial Examiner Eugene F. Frey issued his
Decision 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 attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.-]
MEMBER FANNING, dissenting : As I indicated in my dissenting opin-
ion in the 10(k) proceeding in this case (152 NLRB 531), I would
have quashed the notice of hearing and now dissent from the major-
ity's finding that a violation of Section 8(b) (4) (D) has occurred for
the reasons stated therein.
'In adopting the Recommended Order of the Trial Examiner , we do not rely on Com-
munications Workers of America Local 1101, AFL-CIO (Bond Electric Company), 146
NLRB 388, where , unlike the instant case, Local 25 was not charged with forcing an
employer to assign particular work to its members. The Trial Examiner 's Decision in
Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Emmett Electric
Company, Inc.), 157 NLRB 44, to which the Trial Examiner referred has recently been
adopted by the Board.
157 NLRB No. 66.