United Nuclear Corp.

National Labor Relations Board - Board Decisions

Jan 18, 1966

156 N.L.R.B. 961 (N.L.R.B. 1966)

UNITED NUCLEAR CORPORATION 961
statutory "employer" with respect to which Section 8(f)'s relevancy would have to
be decided . Should such a view with respect to the statute 's meaning prevail, how-
ever, the practical and legal problems which would have to be solved-before any
determination could be made as to whether such a composite "employer" should be
considered primarily engaged in the building and construction industry , would surely
be numerous and difficult . For present purposes , luckily, they need not be dis-
cussed. ) With respect to other types of special trade contract work-plumbing, heat-
ing, and air conditioning ; painting , paperhanging , and decorating ; electrical work;
masonry, stonework , tilesetting , and plastering ; carpentry work; roofing and sheet
metal work ; concrete work; structural steel and ornamental metal work ; glass and
glazing work ; and the installation or erection of prefabricated building equipment,
similar situations might conceivably develop which could only be decided on some
case-to -case basis . Congress cannot have conferred statutory privileges, which Sec-
tion 8 ( f) provides , subject to limitations reasonably calculated to create a double
standard for contractual union security clauses, inter alia, within the building and
construction trade considered as a whole.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following conclusions of law:
1. Indio Paint and Rug Center is an employer within the meaning of Section 2(2)
of the Act , engaged in commerce and business activities which affect commerce
within the meaning of Section 2 ( 6) and (7) of the Act, as amended.
2. Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of
Painters , Decorators and Paper Hangers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act , as amended , which admits
employees of Indio Paint and Rug Center to membership.
3. Throughout the period with which this case is concerned , Indio Paint and Rug
Center has been, and is now, engaged primarily in the building and construction
industry ; within that industry it performs contract construction services as a special-
trade contractor.
4. Respondent Union has not, through its negotiation , maintenance or effectuation
of a contract with Indio Paint and Rug Center which includes a 7-day union-security
clause, caused the Company designated to discriminate against its employees in vio-
lation of Section 8(a)(3) of the Act, as amended ; Respondent Union , therefore, has
not engaged in unfair labor practices affecting commerce within the meaning of
Section 8(b)(2) and Section 2(6) and ( 7) of the Act , as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record in
the case, my recommendation is that the Board , pursuant to Section 10(c) of the
National Labor Relations Act, as amended, dismiss the present complaint in its
entirety.
United Nuclear Corporation and United Steelworkers of Amer-
ica, AFL-CIO, and Local No. 5605 , United Steelworkers of
America, AFL-CIO. Case No. 28-CA-1138. January 18, 1966
DECISION AND ORDER
On June 22, 1965, Trial Examiner Howard Myers issued his Deci-
sion 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
Decision . Thereafter, the General Counsel and the Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.
156 NLRB No. 83.
962 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Pursuant to provisions of Section 3 (b) of the National Labor Rela-
tions 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 Jenkins 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 briefs, and the entire record
in the case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner only to the extent consistent herewith.
1. The Trial Examiner concluded, and we agree, that in July 1964
the Respondent's supervisors made coercive antiunion remarks to
employees, in violation of Section 8 (a) (1) of the Act.
2. The Trial Examiner further concluded that at no time did the
Respondent enter the 1964 collective-bargaining discussions with the
Union in good faith or with an open and fair mind and a sincere
purpose to find a basis of agreement, within the meaning of Section
8(a) (5).
The Respondent excepts, in part, on the ground that the evidence
does not furnish substantial support for this conclusion. In our
opinion, however, the evidence disclosed by the record and found by
the Trial Examiner clearly warrants the Trial Examiner's conclusion.
Upon taking over the operations here involved in the spring of 1963,
the Respondent signed a supplemental agreement with the previously
certified Union, adopting with modifications the current collective-
bargaining contract between the Respondent's predecessor and the
Union covering the production and maintenance employees. As this
agreement approached its expiration date of May 31, 1964, however,
the Respondent in effect withdrew recognition from the Union.
The Respondent began by permitting a group of antiunion employ-
ees to post notices on its bulletin boards, attaching petitions designed
to whip up employee sentiment for decertifying the Union. When the
Union protested, the Respondent substituted notices of its own, advis-
ing the employees that it did not like working with a union contract,
that without the union contract it would continue to make improve-
ments, and that it fully supported any employees who might back the
antiunion petitions. Accordingly, when the Respondent received the
Union's letter of March 29 requesting that it set a date to commence
negotiations for a new labor agreement, it ignored the request. When
the Union more than 2 weeks later repeated its request by telephone,
the Respondent's general manager replied only that he would try to
determine what the Respondent's intentions were, and thereafter again
ignored the Union's request. After another 2 weeks passed without
response, the Union yet again repeated its bargaining request, and a
UNITED NUCLEAR CORPORATION 963
meeting was finally arranged for May 11. The principal subject at
the meeting, however, turned out to be the Respondent's announce-
ment to the Union that because of its large stockpiles it would rather
not deal with the Union, it would benefit from a strike, and it was
giving operational training to its nonoperating personnel in case the
mines were shut down.
The Union nevertheless continued • its efforts to persuade the
Respondent to bargain collectively, and a further meeting was sched-
uled for May 25. At that meeting, however, the Respondent tried a
new approach. It told the Union, for the first time, that it doubted
the Union's majority, allegedly based upon a letter received from an
employee advising that a decertification petition had been filed with
the Board, and also allegedly based upon information that a majority
of the employees had signed or at least supported the decertification
petitions previously posted on the Respondent's bulletin boards. In
reply to the Respondent's alleged doubt of majority, the Union pointed
out, to no avail, that the Respondent possessed union checkoff author-
izations from an overwhelming majority of its employees.
On June 12 the Respondent filed a petition for an election (Case
No. 28-RM-114). In an attempt to expedite collective bargaining,
the Union withdrew a 'refusal-to-bargain charge which it had filed
against the Respondent, and joined the Respondent in signing a stipu-
lation for certification upon consent election, pursuant to the Respond-
ent's petition. But the Respondent was not content to let a fair and
free election reflect the choice of its employees. Instead, while engag-
ing in the 8(a) (1) violations detailed in the Trial Examiner's Deci-
sion, the Respondent sent several letters to its employees, stating that
if they voted against the Union they would continue to enjoy their
wages, fringe benefits, and other conditions of employment without
any union financial burden; but that if they voted for the Union, the
Respondent had no intention of ever agreeing to any union-security
or checkoff clauses, and that the Respondent rather than the employees
would benefit by the resulting strike.
The Union, despite the Respondent's unlawful campaign against it,
won the election by an overwhelming majority, and was again certified
on August 10, 1964. But the Respondent persisted in refusing to
bargain collectively in good faith. At a meeting on August 18 the
Respondent stated that it was about to lay off a large number of
employees. When the Union asked if such employees would receive
severance pay, which was a condition of employment embodied in
the collective-bargaining -contract signed by the Respondent's prede-
cessor in 1962 and adopted by the Respondent in 1963, the Respondent
replied in the negative, on the ground that its policy was not to pay any
217-919-66-vol. 156-62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
severance pay unless required by contract. The unilateral withdrawal
of severance pay from the employees subsequently laid off stands in
marked contrast to the clear statement in the Respondent's posted
notices of March 19, before the election, asking the employees to reject
the Union on the ground that there would be "no change in benefits
now received by the employees whether we are working with a union
contract or without." It is also in marked contrast to the Respondent's
conduct with respect to discontinuing another term or condition of
employment, the unavoidable absence plan. That plan was likewise
embodied in the 1962 contract adopted by the Respondent. But even
after expiration of the contract, the Respondent discussed with the
Union its proposed discontinuance of the plan; and before discontinu-
ing it on August 5, it obtained the Union's acquiescence, according to a
finding of the Trial Examiner which stands unchallenged.
Grievances were thereupon filed with the Respondent, claiming that
in making the layoffs the Respondent failed to pay the customary
severance pay or to follow seniority. But the Respondent's super-
intendent advised the Union that he would do nothing about the
grievances, since the contract had expired. And the Respondent's
general manager, although admitting that the practice during the
term of the contract was for him to answer a grievance in writing
within 5 days and then meet with the Union to discuss it, likewise
advised the Union that he did not know what he could do with the
grievances in view of the expiration of the contract. Moreover, as the
Respondent again explained in its October 1964 letter to the Regional
Office, which is in evidence in this case, the Respondent's position at
all times has been that the grievance procedure embodied in the con-
tract ceased upon expiration of the contract.
On these facts, we find, in agreement with the Trial Examiner, that
at no time did the Respondent enter the 1964 collective-bargaining
negotiations with the Union in good faith, within the meaning of
Section 8(a) (5) of the Act. Thus, the record shows that the Respond-
ent at first completely ignored the Union's demand for recognition.
When the Union repeated its demand 2 weeks later, the Respondent
said that it would think it over, but again ignored the demand. When
the Union once again reiterated its demand after another 2 weeks,
the Respondent had no intention of bargaining in good faith, but
instead told the Union that it would rather not negotiate and was in
fact getting ready for a probable protest strike. When the Union
continued its efforts to persuade the Respondent to fulfill its bar-
gaining obligations, the Respondent, without any change of purpose,
reluctantly arranged another meeting for May 25. But at that meet-
ing the Respondent for the first time expressed doubt of the Union's
UNITED NUCLEAR CORPORATION 965
majority, based upon the fruition of its antiunion campaign since the
May 11 meeting and in the face of its continued possession of checkoff
authorizations from an overwhelming majority of the employees.
When the Union agreed to an election to show that the Respondent's
doubts were baseless , the Respondent renewed its antiunion campaign,
engaging in 8(a ) ( 1) violations and advising the employees that at
least as to certain subjects it had no intention of ever bargaining to
an agreement . When the election nevertheless showed that the employ-
ees continued to want the Union to represent them, the Respondent
once again reluctantly arranged a meeting . But at that meeting the
Respondent announced that a large layoff would be made , and that
the customary severance pay would not be paid to the laid -off employ-
ees. Finally , the Respondent took unilateral action to change the
customary grievance procedure: when grievances were duly filed with
the Respondent relating to the layoffs , its officials in effect refused to
consider the grievances , on the ground that the contract had expired.
In sum, we find that the record fully warrants the Trial Examiner's
conclusion that at no time did the Respondent enter the 1964 collective-
bargaining negotiations with the Union in good faith within the
meaning of the Act.
3. Although not entirely clear, the Trial Examiner apparently
concluded that the Respondent 's unlawful refusal to bargain occurred
on and at all times after August 18, 1964, the date of the first bargaining
meeting after the Union's certification in Case No . 28-RM-114.
The General Counsel excepted to the Trial Examiner 's failure to
date the Respondent 's bargaining violation from March 29, 1964, when
the Union first asked the Respondent to negotiate a new collective-
bargaining agreement . The Respondent argued that any such date
would be beyond the scope of the complaint , which in paragraph 15
alleged that the bargaining violation consisted of various unilateral
actions commencing on or about June 1, 1964.
We note, however, that the complaint also alleged in paragraph 9
that the Union has been the exclusive collective -bargaining representa-
tive of all employees in the unit here involved ever since its certification
more than 5 years ago ; in paragraph 10 that the Respondent recog-
nized the Union and entered into a supplemental agreement in sub-
stance adopting its predecessor 's collective -bargaining agreement with
the Union; and in paragraph 12 that on or about March 29, 1964,
and continuing to date, the Union requested the Respondent to bargain
collectively with it.
The record further shows that at the opening of the hearing, and
before any testimony was received, the Respondent's counsel asked
for a bill of particulars or a statement on the record as to whether or
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the General Counsel was contending that the Respondent violated
its bargaining obligation to the Union prior to the election of
July 31, 1964. The Trial Examiner accordingly asked the General
Counsel if his contention was that there had been a refusal to bar-
gain "since March 29, 1964." The General Counsel replied that he
was prepared to prove that there had been a refusal to bargain "from
the date of March 29, 1964." The Respondent's counsel then asked
the General Counsel if the alleged refusal to bargain "has been a con-
tinuous refusal to bargain." The General Counsel replied in the
affirmative . To wind up the discussion, the - Respondent's counsel
.then admitted that the General Counsel's statement covered his
request. Moreover, the Respondent, far from objecting to the intro-
duction of evidence to show a refusal to bargain prior to June 1, 1964,
itself introduced evidence later in the hearing showing that it was
fully aware that the alleged refusal to bargain commenced on
.March 29, 1964, and was not limited to conduct since June 1, 1964.
Accordingly, and in view of the fact that the Respondent had ample
notice that the General Counsel's claim dated back to March 1964, we
find merit in the General Counsel's exception, but not in the Respond-
ent's opposing argument, and further find that the Respondent's
refusal to bargain collectively with the Union within the meaning of
Section 8(a) (5) of the Act occurred on and at all times since
March 29,1964.
4. The General Counsel excepted to the Trial Examiner's failure
to make specific findings of an 8(a) (5) violation in the Respondent's
unilateral discontinuance both of severance pay and of the established
grievance procedure. The General Counsel further excepted to the
Trial Examiner's failure to recommend that the Respondent make
whole the employees deprived of severance pay. The evidence, set
forth above, convinces us that these exceptions have merit, and that
the Respondent, during ostensible collective-bargaining negotiations
with the Union, but without reaching a genuine impasse or securing
the Union's consent to the discontinuance of either of these terms and
conditions of employment, unilaterally and unlawfully terminated
them, and thereby independently violated Section 8(a) (5).1 We are
likewise convinced that the appropriate remedy for the unilateral
discontinuance of severance pay is to require the Respondent to make
whole the employees unlawfully deprived of their severance pay .2 '
'See Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO
( Bethlehem Steel Co , Shipbuilding Div) v N L.R.B , 320 F 2d 615 (C A. 3).
28ee George E Light Boat. Storage , Inc., 153 NLRB 1209; Bethlehem Steel Company
(Shipbuilding Division ), 147 NLRB 977.
UNITED NUCLEAR CORPORATION 967
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Insert the following as paragraphs 2(b) and (c) and reletter
the following paragraphs accordingly :
[" (b) Make whole the employees laid off in August 1964 for any
losses they may have suffered by reason of the Respondent's unlawful
unilateral changes in their terms and conditions of employment, by
paying each of them the amount he would have received as severance
pay, with 6 percent interest per annum thereon, as prescribed in
Isis Plumbing d Heating Co. 138 NLRB 716.
["(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount due each
employee under the terms of this Order."
[2. Add the following as the last indented paragraph of the
Appendix :
[WE WILL make whole the employees laid off in August 1964 for
the severance pay of which they were wrongfully deprived.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Howard Myers, at Grants , New Mexico , from January 19 through 22 , 1965, upon a
complaint , as amended at the hearing , of the General Counsel of the National Labor
Relations Board , herein called the General Counsel 1 and the Board , dated Novem-
ber 17, 1964 . The complaint , as amended , based upon a charge and an amended
,charge, duly filed on September 3 and November 13, 1964, respectively , by United
Steelworkers of America , AFL-CIO, and Local Union No. 5605, United Steelwork-
ers of America , AFL-CIO, herein respectively called the Steelworkers and Local No.
5605,2 alleged , in substance , that United Nuclear Corporation,3 herein called Respond-
ent, violated Section 8 ( a)(1) and ( 5) of the National Labor Relations Act, as
amended from time to time , herein called the Act.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent , a New Mexico corporation , maintains an office and place of business
at Ambrosia Lake located in the vicinity of Grants, New Mexico, where it is engaged
in, and during all times material was engaged in, mining uranium ore.
During the 12-month period immediately preceding the issuance of the complaint,
Respondent , in the course and conduct of its business operations mined, sold, and
distributed at its Ambrosia operations , products valued in excess of $500,000 of
which products valued in excess of $100,000 had a substantial impact on the national
defense by virtue of contracts for the sale of uranium ore to the Atomic Energy
Commission . During the same period , Respondent , in the course and conduct of its
1 This term specifically includes counsel for the General Counsel appearing at the
hearing.
Conjointly , Steelworkers and Local No 5605 are herein called the Union
3 At the hearing the name of Respondent was corrected to read as set forth above.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business operations at its Ambrosia Lake operations, mined, sold, and distributed
products valued in excess of $100,000 which products were shipped directly to points
located outside the State of New Mexico
Upon the basis of the foregoing facts. I find, in line with Board authority, that
Respondent is, and during all times material was, engaged in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, and that its business
operations meet the standards fixed by the Boaid for the assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The Steelworkers and Local 5605 are labor organizations admitting to membership
employees of Respondent.
III THE UNFAIR LABOR PRACTICES
A. The prefatory statement
On December 31, 1959, the Steelworkers was certified by the Board as the statutory
collective-bargaining representative of Phillips Petroleum Company's Sandstone mine
production and maintenance employees
On October 18, 1960, the Steelworkers was certified by the Board as the statutory
collective-bargaining representative of Phillips' Cliffside mine production and main-
tenance employees
In June 1962, after the expiration of their previous collective-bargaining contract,
Phillips and the Steelworkers entered into a 2-year collective-bargaining agreement
covering the employees for whom the Steelworkers had been certified at both the
Sandstone and Cliffside mines.4
On March 28, 1963, Respondent purchased from Phillips certain properties includ-
ing the Sandstone and Chffside mines.
Under date of April 5, 1963, Respondent and the Steelworkers entered into a
supplemental agreement a which provided, among other things, that the parties
thereto agreed to be bound by the aforementioned 1962-64 Steelworkers-Phillips
collective-bargaining agreement, subject to certain specifically stated modifications
regarding Blue Cross-Blue Shield insurance plans and wage increases, and amending
the grievance and arbitration procedure.
B. The pertinent facts 6
About mid-March 1964,7 at the request of several employees, D D. Turberville,
the general manager of Respondent's Cliffside and Sandstone mines, permitted copies
of the following notice to be posted on Respondent's bulletin boards:
The present union contract expires this coming May 31st. Some of us feel
we'll fare better without the union here than with it. At any rate we would
like to see an election held to determine whether or not we'll continue with the
union. I'm sure that some of you who have worked at several different mines,
particularly in this district, have found, like we have, that the non-union mines
have been the better jobs, and you didn't have to worry about a foolish strike
every year or two. I've never seen it fail, that when a Company is tied to a
union contract, it is fight tooth and nail over each and every benefit or difference
4 This agreement was entered Into by the Steelworkers "for and on behalf of Local 5605
6 For and on behalf of Local No 5605.
6In the light of my observation of the conduct and deportment at the hearing of all
the persons who testified herein, and after a very careful scrutiny of the entire record, all
of which has been carefully read and parts of which have been reread and rechecked
several times, and being mindful of the contentions of the parties with respect to the
credibility problems here involved, of the fact that in many instances testimony was given
regarding events which took place many months prior to the opening of the hearing, and
of the fact that very strong feelings have been generated by the circumstances of this
case, coupled with the fact that It would unnecessarily protract this Decision to sum-
marize all the testimony or to spell out fully the confusion and Inconsistencies therein,
the following is a composite picture of all the factual issues involved and the conclusions
based thereon. The parties may be assured that in reaching all resolutions, findings, and
conclusions herein, the record as a whole has been carefully considered , ielevant eases
have been studied ; and each contention advanced has been weighed, even though not
specifically discussed.
7 Unless otherwise noted, all dates hereinafter mentioned refer to 1964
UNITED NUCLEAR CORPORATION 969
of opinion Without that tie it is frequently easier to settle differences and even
consider the fringe benefits of Rare Metals Corporation or the bonus checks
coming out of the Blackjack Mines.
But think what you will about these things; it's only fair that we find out if
the majority here still wants the Union We have drawn up the following peti-
tion and if 30% of the men sign we'll have that election. In order to sien, con-
tact Lee Brooks or Lin Hadden at the Sandstone or Jerry Miller at the Cliffside.
The following is a copy of the petition
Within a day or so of the posting, the aforesaid notice was removed upon orders
of Turberville because, as he testified, Patrick Bodoh, the then president of Local No
5605, protested the said posting and for the additional reason that the wording of the
notice caused a considerable amount of confusion in the minds of the employees
On or about March 19 copies of the following notice were posted on Respondent's
bulletin boards over Turberville's signature:
Several days ago the Company was approached by a number of employees
requesting permission to post a notice on the Bulletin Board stating they were
going to circulate a petition to find out how many men might want an election.
The Company granted them this permission
It was felt the Company was at fault for granting them this permission accord-
ing to Article XIX, Section 2 of the Contract. In checking this through our legal
department, I was informed the Company was not at fault, but in any event I
had these notices taken down to avoid any disagreement. We all are living in a
free country and these men certainly have the right to do this if they desire to
do so.
The Company must remain neutral in a situation like this. However I would
like to point out as near as I can the Company's position March 28, 1963, at
which time United Nuclear took over the operations of the old Phillips Petroleum
properties, the Company at this time stated they did not like working with a
Union contract but a contract did exist and we would abide by it. We have
made every effort to do just this.
This month United Nuclear will have operated these properties for a full year.
Changes have been made which have improved the operations in general. More
changes will be made this year which will benefit and improve our operation.
The Company is in a much better position to make improvements this year than
last year.
United Nuclear feels as I do myself that no operation, regardless of what busi-
ness we are in, is any better than the quality of the men that are doing the work.
We would prefer that all of our employees to be satisfied with their job.
Listed below are certain facts the Company will maintain:
1. Our policies will remain the same regardless of circumstances that
may arise unless a change would benefit the operation.
2. Operational procedure will remain unchanged unless some benefit
can be achieved for the operation in general.
3. There will be no change in benefits now received by the employees
whether we are working with a Union contract or without.
In general the Company's attitude will remain the same, regardless whether
a Union contract exists or not.
I have heard rumors in the last few days that the employees that are circulat-
ing petition for a vote will be fined, black-balled and the Company will be forced
to discharge them for their action I want to put everybody's mind at rest. The
Union cannot collect a fine for this purpose They would be violating a Federal
law to try and black-ball these men. They cannot force the Company to dis-
charge anybody especially for an illegal reason as this. Any employee that falls
or may fall in this situation I want to understand that Company is in full support
of him.
I hope I have made myself and the Company's position somewhat clearer.
At a meeting held on March 22 between Turberville and Albert J. Frantz, a Steel-
workers representative and the main spokesman for Local No. 5605 in its dealings
with Respondent, Frantz stated that in his opinion Turberville's March 19 notice vio-
lated the terms of the then-existing bargaining agreement between the parties and
requested its removal.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the course of the meeting referred to immediately above, Frantz stated that
he would send Respondent a notification shortly of the Union's intention to negotiate
a new agreement. Turberville replied that he did not know what position Respondent
would take with respect to negotiating a new agreement.
On or about March 23, Bodoh posted on Respondent's bulletin boards copies of a
notice reading as follows:
The management last week posted a notice clearly stating their position in
regards to the petition being circulated throughout the mine seeking an election to
determine whether or not the United Steelworkers would continue to be the bar-
gaining agents for Cliffside and Sandstone mines. The management went on
to state that they backed the people who were behind the petitions 100%. The
company went further and stated that the Union was powerless to take any action
against these people
The company has the right to disipline [sic] the people who come under their
jurisdiction. The company has no control over disiplinary [sic] action taken
within the Union against members who violate the Constitution of The United
Steelworkers of America.
The Union has been put in the position now that we must take action against
the people circulating these petitions, such action has been started and will be
continued until the members of this Union are satisfied that justice has been
done
Under our Constitution, these men may be fined up to $500.00, suspended
from the Union, or expelled from the Union, if they are found guilty of the
charges being brought against them.
Under date of March 26 Turberville wrote the Steelworkers, sending a copy of the
letter to Local No. 5605, that Respondent was terminating the then-existing collective-
bargaining agreement "upon the contract's expiration date of midnight, May 31,
1964."
Under date of March 29, Frantz wrote Respondent, sending copies of the letter to
Local No. 5605 and to the Federal Mediation and Conciliation Board, of its "inten-
tion to negotiate a new Labor Agreement." This letter concluded with a request that
Respondent set a date to commence negotiations.
Having received no answer to his March 29 letter, Frantz, on or about April 15,
telephoned Turberville and inquired about a date to start negotiations. Turberville
replied, to quote from Frantz' testimony, "He did not know what the Company's
intentions were but that he would try to determine that [sic] and let me know."
Not having heard from Turberville or anyone else connected with Respondent
regarding a date to start negotiations, Frantz, on May 1, again called Turberville.
Upon being informed that Turberville was out of town, Frantz spoke to James Green-
slade, Respondent's general superintendent and the person next in the chain of com-
mand after Turberville, and informed him that it was important to have a date set
to start negotiations, adding that if such was not done he would file a refusal-to-
bargain charge with the Board.
On or about May 5 Turherville called Frantz. The latter told Turberville that if a
negotiation meeting was not arranged soon, he would file a refusal-to-bargin charge
with the Board. Frantz then told Turberville that he would be in Grants, New
Mexico, where Respondent's operations and Turberville's office are located, on
May 8, at which time he would telephone Turberville to ascertain when Turberville
would meet to negotiate a new agreement.
On May 8 Frantz telephoned Turberville and a negotiation meeting was set for
May 11.
During the course of the May 11 meeting, Turberville informed Frantz that
Respondent would rather not deal with the Union.8 According to Turberville's testi-
mony the following transpired at the aforesaid May 11 meeting:
I felt at that time that I would like to get together with Bert [Frantz] and lay the
Company's situation, as far as stockpiling and the AEC allotment, on the table
and make sure that he knew exactly what existed, and I did this. I gave him
facts and figures, the value of the stockpiles, the maximum amount of the AEC
allotment that we had on the contract, and the economic position that we were
in, being able to produce more than we were able to sell under our AEC con-
8 Respondent's unconcealed hostility to the Union is clearly established not only by
the above Turberville remarks, but also by the letters Respondent mailed to the em-
ployees' homes while the Union's petition seeking to be certified as the collective-bargaining
representative of the employees was pending undetermined before the Board
UNITED NUCLEAR CORPORATION 971
tract. Therefore, that I would like to be able to reduce my stockpiles rather than,
increasing them each month, which at that time my production was exceeding
what 1 could sell, so my stockpiles were gradually growing larger . I showed him,
what it was costing us to stockpile this ore , and it was about five and three quar-
ters per cent
The fact that we have such large stockpiled material existing at that time, that
the best economics to the Company-that I could actually [sic] [shut] out all the
mines down and gain better better economics out of it than I could by reducing
production . Now, the next best step would be a reduction in-a reduced
production schedule.
Q. Did you make it clear to Mr. Frantz that the Company would be able to
satisfy its AEC requirements from the stockpiles?
A. Yes, I could easily satisfy the AEC requirement for two years and even;
longer if we went beyond the stockpiles that you mentioned at Sandstone and-
Chffside.
* * * * * * *
I also told him at that time that a strike would not bother the Company,
period. In fact, as far as economics are concerned , it would have benefited me.
Turberville also stated at the above -said meeting that Respondent was training its-
salaried personnel ' in the operation of the hoist and pumps in case the mines were
shut down.
In response to Turberville 's above-quoted remarks, Frantz stated, to quote from
his testimony:
... I made a reply to Mr. Tuberville [sic] that I was not interested in shutting the
mine down , that I was interested in seeing if we could arrange a meeting whereby
we could get together in negotiations and arrive at an agreement ; and that was.
not the Union 's intent , to shut the mine down. At that time, Mr. Turberville did
discuss with me problems concerning the unavoidable absence.9 He asked me
also, what was the Union going to demand, and what was the change that the
Union was requesting in the agreement , and I told him that while there had been
nothing definite , we certainly had the door open to talk about the unavoidable
absence. We certainly had the door open to talk about many things in the
agreement
Before the meeting concluded , the parties agreed to meet again on May 21 or 25.
Under date of May 13 Turberville wrote Frantz that he and his colleagues would
meet him at 1:30 p in. on May 25 at the Grants, New Mexico, mill office.
On May 25, as scheduled , Turberville , Respondent 's negotiating committee, and'
Respondent 's counsel met with Frantz and the Union 's employee negotiating
committee.
Turberville opened the aforementioned meeting by stating that Respondent "had.
prepared a contract proposal for discussion and consideration ," that contract negotia-
tions could not legally be carried on because Respondent doubted the Union's major-
ity status . In response to Frantz' inquiry upon what Respondent based its doubt, Tur-
berville and Respondent's counsel stated that Respondent had received a letter that
morning from employee Lee Brooks advising it that "a petition seeking an election has-
been filed with" the Board 10 Respondent 's representative then told the Union's
representatives that Respondent had been informed that more than 50 percent of its
employees had signed authorizations to support a petition seeking a Board election
to have the Union decertified as their collective -bargaining representative ; and that
many other employees had told Respondent that they supported the decertification,
petition but were fearful of union reprisals if they signed the supporting authorization.
At the conclusion of Turberville's and Respondent counsel's above-referred to com-
ments, Frantz replied that he could not understand Respondent 's doubt of the Union's
majority status since Respondent had in its possession union dues checkoff authori-
zations from 150 of the approximately 170 persons then in its employ and that, as far
as he knew , only 7 employees had withdrawn from the Union . Respondent 's counsel
then suggested that, in order to expedite matters, the parties enter into an agreement
6 This had reference to a clause in the bargaining agreement
10 An attempt was made by Brooks to file a representation petition on or about May 24,
but the Regional Director refused to process it because the then-existing contract be-
tween Respondent and the Union had not, by its terms , expired nor had it been terminated
by mutual consent.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
to have the question of the Union's majority determined by a Board-conducted elec-
tion. Frantz rejected the suggestion maintaining that sufficient proof of the Union's
majority status was clearly evident and hence no election was necessary
When Frantz, toward the end of the meeting referred to immediately above, said,
"The thing that bothers me is, what is going to happen to these men," Turberville
stated, according to his own testimony, "I gave [Frantz] my word that there would
be no changes made whereby the men would be hurt or any adverse condition brought
about until this pending election was settled." When Frantz said, "Does this mean,
Dave, that you are extending the contract7" Turberville replied, "No, it does not."
James O. Greenslade, second in command at Respondent's Grants, New Mexico,
operations, testified that at said May 25 meeting, when "Mr Frantz said that they,
the Union, still felt that their position was that they represented the employees because
of the checkoff list and the number they had, . . Mr. Pickering [Respondent's coun-
sel] said, well, if they felt that way, that the Company was willing to negotiate with
them under the stipulation that if any negotiations that went on prior to when this
problem was [settled by a Board] election, that if the Company received the greatest
-number of votes" that any agreement reached "would not be binding on the Company"
but "if the Union was selected that these ... negotiations would be binding on the
Company," and that Frantz rejected the suggestion. I reject this portion of Green-
slade's testimony on the ground that it is not in accordance with the facts. This find-
ing is not only based upon the fact that Turberville, during his long and detailed
account of what transpired at this meeting, made no mention of this suggestion, but
when Frantz was asked on cross-examination by Respondent's counsel whether he
recalled Respondent having "offered to go ahead and negotiate, try to negotiate terms
of an agreement with the Union" subject to the outcome of the decertification petition
which Respondent mistakenly believed had been filed, Frantz replied, "No, sir, Mr.
Pickering, I don't believe that was the statement that was made because I was given
to understand when I set my briefcase down that the Company could not negotiate
with the Union because they had reason to believe we no longer represented the
employees there." Moreover, based upon my personal knowledge that Respondent's
counsel is well grounded in the field of labor law, I seriously doubt that said counsel
would suggest that his client bargain collectively with the Union under the circum-
stances as they purportedly existed at the time of the May 25 meeting.
The following day, May 26, the Union filed a refusal-to-bargain charge with the
Board 11
On June 2 Brooks filed a decertification petition with the Board.12 On June 9 the
Regional Director dismissed the said petition because the showing of interest submit-
ted in support thereof was inadequate in that the authorizations attached thereto were
undated The Regional Director's dismissal letter was sent to Brooks and copies
thereof were sent to Respondent, the Steelworkers, and Local No. 5605.
Following the dismissal of the aforementioned decertification petition, Brooks,
the spearhead in the decertification campaign, informed Turberville that he intended
to contact the signers of the authorizations and have said persons again sign, dating
their signatures this time. Turberville responded that he would prefer that Brooks
would proceed no further in his attempts to have the Union decertified because his
decertification activities had already caused an uproar among the employees which
had adversely affected Respondent's production. Turberville then informed Brooks
that Respondent intended to file a petition requesting an election and hence his con-
templated action would make unnecessary any action by the employees to determine
the Union's majority status.
On June 12, Respondent filed a representation petition.l3
Under date of June 15 the Regional Director wrote Respondent that the Union had
withdrawn, without prejudice, that charge which it had filed on May 26, in Case No.
28-CA-1093
On June 23 Respondent and the Union entered into a stipulation for certification
upon consent election mutually agreeing to the terms of and the holding of an elec-
tion on July 31,14 among the Cliffside and Sandstone mines production and mainte-
nance employees who were on those mines' payroll during the payroll period ending
.June 30.
u Case No 28-CA-1093
32 Case No 28-RD-90.
12 Case No. 28-RM-114
"Case No 28-RM-114.
UNITED NUCLEAR CORPORATION 973
On or about June 30 Respondent transferred approximately 40 of the Sandstone
unit employees to its newly acquired San Mateo, New Mexico, mine located about
10 or 12 miles from the Sandstone operations.15
Former employee Donald L Lassiter 16 testified that about a week or two prior to
the scheduled July 31 election, he had a conversation with Jack Fowler,17 during
which Fowler remarked, to quote from Lassister's testimony, "He would like to see
us vote no union just to see if the Company would keep their word, . that probably
they would force us into a strike by not giving us a good contract, taking away what
we had, and if they didn't force us into a strike, they are liable to shut down the mine
themselves to get i id of the union." Lassiter further testified that during the same
conversation, Fowler also said Respondent "had won half of the battle by stopping
union deductions." is
Ruben E. Gallegos, a contract miner employed at the Cliffside mine since 1961,19
testified, without contradiction, that after the aforementioned Board-conducted
election had been held but before the result thereof had been made known, Fowler
told him that if the Union won the election, the employees would probably lose their
insurance and sick leave benefits, as well as their seniority status
Raymond F. Cummings, a Cliffside contract miner since December 1961, testified
that either in the latter part of June or early in July, his immediate supervisor, Edward
Lilly, said that if the Union won the election Respondent would probably close the
mine and the employees would be looking elsewhere for jobs.
Former employee Samuel Dominguez testified that about a week or two prior to
the election, Royal Smith, his immediate supervisor, said to him, in the presence of
his working partner, Jose Mondragon, "If the Union was voted back in ... or .. .
in the case of any layoffs, some of the men would not be transferred to any other
mines" owned and operated by Respondent.
Jack Velarde, a Cliffside mine contract miner since September 1960, testified that
shortly before the Board election Smith said to him that the employees would be
,crazy to vote for the Union because if the Union won the election the employees
would lose their seniority rights and their insurance benefits, and that because
Respondent would never sign a contract with the Union, therefore the Union would
be forced to strike.
Samuel Dominguez, a Respondent contract miner and an employee within the ap-
propriate unit, testified that about a week or two before the scheduled Board election,
his shift foreman, Royal Smith, asked him and his partner, Jose Mondragon, how they
"thought the election was going to come out"; and that when he told Smith that he
and Mondragon "had pretty well made up our minds how we were going to vote,"
Smith said that in case the Union "was voted back in" none of the men subject to be
laid off would be transferred to any other mine owned by Respondent.
Fowler testified that: He had been asked on several occasions by various employ-
ees what Respondent would do if the Union won or lost the election; in response to
these inquiries he replied that he did not know what Respondent would do either
way; as far as he knew Respondent would continue to operate the mine in the same
manner regardless of the outcome of the election; several times he told the employees
that if their production did not increase he believed Respondent would have to shut
down and if it did so, "there wouldn't be no mine, there wouldn't be no union, there
wouldn't be no company"; production at the Cliffside mine (where he had been a
shift foreman) had fallen to only 5 to 350 tons of ore per day, whereas prior to "the
union election talk" approximately 500 tons of ore were produced daily; the reason
for the sharp reduction in production was due to the fact that "there was a lot of
tension on that mine out there, the men were unsettled, their problems weren't of
money, they were concerned with their future, they were concerned about their
employment, and they were concerned about this election."
15 This mine was acquired by Respondent subsequently to the execution of the June 23
consent-election agreement.
19 During a portion of 1964 , Lassiter was chairman of Local 5605 's maintenance em-
ployees ' grievance committee.
14 Fowler was laid off by Respondent as a consequence of reduction in force, August 28
layoff. This reduction is discussed in detail below.
18 Respondent ceased to check off dues on May 31, the expiration date of the contract.
11 Contract miners were included in the agreed -to appropriate unit
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowler further testified that he had several conversations with Cummings con-
cerning the Union; that in each of these conversations, Cummings usually asked if
Respondent would close the mine if the Union won the election; and that in answer
to Cummings' questions he replied:
I told him as far as I knew they were going to keep mining. I said, "They are
a young company." I said, "Now, they don't like to work with the union con-
tract, they feel that they can operate better, but," I says, "Since they got one, they
are going to honor it," and I says, "I don't know whether they are going to have
another one or not" because at that time I did not know. But I said as far as
I knew that the Company was out there to mine ore and that is what they were
going to do with or without a union. And he asked me about the, was they
going to shut down if the union got elected, and I told him the same thing that
I've told a lot of others, that if our production didn't increase to where we put
it on a paying basis it would shut down.
With reference to the statements which Gallegos attributed to him about the
probable loss of certain benefits if the Union won the election, Fowler testified as
follows
Q. Now, Gallegos also testified that same evening after the election that you
told him that if the election was won by the Union that the employees would
probably lose most of their benefits and specifically that you told him that they
would lose their insurance, their sick leave, and seniority. Did you ever make
any such statement as that to Mr. Gallegos?
A. No, sir, not to that effect, no I did not.
Q. Do you recall what you did state?
A. I did make a statement to him once that they were going to take away his
unavoidable absence plan, that it was being abused. I said, "You are going to
lose that, Ruben." I said, "You guys took advantage of that," and I said, "The
Company is going to discontinue it."
Q. Did you tell him under what circumstances the Company would determine
it-
A. No, sir.
Q. ar whether it would make any difference whether the vote went Union
or no Union9
A. I told him it wouldn't make any difference where it went. I said, "There
won't be any more of that." I said, "I know that they are going to discontinue
that because you fellows have abused it." I said, "They can't continue to pay
a guy that's off work because he's got a hangover." I said, "They can't operate
like that and get any work out." Said, "If they were running a thousand tons
a day," I said, "They could probably afford to pay some guy when he is off
down," but I said, "They can't afford to pay it when they are going into the
red." I said, "They are going to discontinue it," and I told him that, that was
prior to the election, yes.
Q. And you say you told him that they were going to discontinue it regardless
of how the election came outs
A. Yes, sir, I certainly did.
Fowler testified that when Lassiter asked him about a month or so before the
election what Respondent intended to do if the Union won the election,
. I said, "Well, how does it look on the election? I said , "Who do you think
is going to win, the Company or the Union?" Well, naturally he always told me
that the Union was going to win, which I said, "Well, you might be right and
you might not be." Now, it was going on as to what the Company, I think I
brought it up, or he brought up, one of us brought it up, what the Company
was going to do. I said, "Well, I don't know what they are going to do." I said,
"I know what they can do." I said, "They can shut it down tomorrow, and
just pump water" I said, "That's what they can do." And he, which was
mentioned, he says, "Well, do you think they'll do that to break the Union?"
I said, "They could." I said, "They could shut it down to break the Union."
I said , "They could lay off and break the Union." I said, "They could not sign a
contract and probably break the Union." I said,, "There is a lot of possibility
what they could do, but what they are going to do, I don't know." And I
actually didn't know.
Lilly testified that: He never told any employee that he would be better off without
a union ; he never told any employee that he would be laid off or the mine would be
closed if the employees "went union"; and he never asked any employee whether be
UNITED NUCLEAR CORPORATION 975
was for or against the Union or inquired how any employee intended to vote in the
election. Lilly further testified that he never heard Fowler tell Gallegos that the
employees would lose certain benefits if the Union "was voted in"; that he did hear
Fowler tell Gallegos that Respondent was going to discontinue the "Unavoidable
Absence Plan" regardless of the outcome of the election because the employees had
abused the plan.
Smith denied that he ever told any employee that the employees would be fools
to cast their votes in favor of the Union; that he never "called anybody [at the Cliff-
side mine] a fool or implied that any man out there was a fool"; and that with
respect to the subject of union dues, he "probably said,"
As to union dues, being taken by check-off I probably said it to 99% of the
crew, that I didn't believe the Company would go along with taking union dues
off of check-off, no matter how the election-you know, if they were voted back
in, because that was already a Company policy at the time, I believe. They
weren't taking the union dues any more out of the payroll deduction. And as
for union security clause, I didn't believe that the Company would give a union
security clause, and that was no secret, that was more or less of a public
announcement. Again, I would say that I told 99% of the crew.
Smith testified that he never told the employees that Respondent would not agree to
any form of union-security clause in any contract which might be reached with the
Union; that he never discussed a contemplated layoff with any employee, because he
did not know that Respondent contemplated laying off any employee; and that he
never told any employee that if the employees voted against the Union, Respondent
"would not go through with the contemplated layoff." Smith then testified as follows:
Q. Did you ever tell the employees that if the union were voted back in and
there were any layoffs that the Company would not transfer any men to other
mines?
A. I was notified-I had no idea that there would be any layoffs, nobody had
ever told me that there was going to be a layoff, or a layoff pending. My best
friend was probably the union president, the Company knew this, and so if
there was anything told, they sure as hell didn't tell me, but I might have made
a statement at one time, now, this I wouldn't say who I made it to, because
that's impossible for me to say. I didn't say anything about a layoff, I might have
said, in the event of a mine shutdown or when these mines are worked out.
Now, it was common sense, that is the only union United's got, and they had no
reason why they had to transfer men once they shut a mine down. If you
transfer a man, it's because you want to, I mean it's out of the goodness of your
heart, and I think it was [Bokum] 20 who got up and said, "If you put your faith
in me, we'll take care of you." He made that statement to the full group of men
standing there in the drive. They heard as much about it as I did, and he said,
"If you put your faith in the union-in fact, he used a little stronger term before
the word union. Well, the impression that he gave when he talked to them all
was, "If your faith is in us, we'll take care of you." "If your faith is in the union,
let the union take care of you." This is the implication I got from hearing Mr.
[Bokum] talk that day, and everyone heard the same thing I heard.
Regarding his conversation with Dominguez, Smith testified as follows:
Q Now, Mr. Smith, an employee by the name of Dominguez testified here
yesterday that some time prior to the election you came up to him and Jose
Mondragon and asked them how they thought the election was going to come
out, and told them that if the union was voted back in, that none of the men
would be transferred to other company properties Did you make any such
statement as that to Dominguez and Mondragon or both?
A. I don't really remember. We-I talked to so many men and so many times
a day, one thing I can remember about Sammy
Q. Sammy who?
A Dominguez. The first thing he asked you when you walked in was "Smitty,
what's going on?" "Hell, I don't know, I come in here to find out." That was
darn near a standing opening speech between the two of us. He'd say "Come
on, Smitty, tell me'something." "Hell, the only thing I know is coming from the
miners, you let me know what is happening now." And that was just about a
standard procedure with us as to conversations we got into. Again referring to
the fact that you thought that I said there would be no transferring if the union
20 Respondent 's then president.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came in, the Company had just got through transferring a bunch of men during
that time from the Sandstone Mine to the Rare Metals Mine. They transferred
union men there, and in the event of the close down, I still don't believe, I'll
say in the nineteen or twenty minutes, I honestly didn't believe that if there was
a union in there that they wouldn't transfer the men.
Q. You say at that time the Company had just got through transferring some
men to the Rare Metals Mine?
A. Well, in the vicinity of that, yes. Transferred the men from the Sand-
stone Mine to the Rare Metals Mine.
Q. Rare Metal Mine is also the same mine known as the San Mateo Mine9
A. Yes.
In the light of my observation of Lilly, Fowler, Smith, Dominguez, Lassiter,
Cummings, Gallegos, and Velarde while each was on the witness stand, and after a
very careful examination of the entire record, I find Lassiter's, Cummings', Gallegos',
Dominguez', and Velarde's versions of their respective talks with Lilly, Fowler, an.
Smith to be substantially in accord with what was said. This finding is based mainly,
but not entirely, on the fact that Lilly, Fowler, and Smith each gave me the distinct
impression that he was studiously attempting to conform his testimony to what he
thought to be the best interest of the Respondent. On the other hand, Lassiter,
Cummings, Gallegos, Dominguez, and Velarde each particularly impressed me as
being one who is careful with the truth and meticulous in not enlarging his testimony
beyond his memory of what was said on the foregoing occasions.21
On July 31 the election was held among the 135 Sandstone and Cliffside unit
employees. Of the 125 employees voting, 81 cast ballots in favor of the Union and
44 against.
On August 10 the Regional Director, for and on behalf of the Board, certified the
Union as the collective-bargaining representative of all the employees in the agreed
to appropriate unit.
On August 3 Respondent's counsel telephoned Frantz and suggested that a date
be fixed for the holding of a negotiating meeting as soon as convenient. Frantz
replied he wanted to wait for the Board's certification before entering into negotia-
tions. The parties finally agreed to meet on August 17.
Respondent's counsel, during the telephone conversation referred to immediately
above, informed Frantz that Respondent was anxious for an early meeting in order
to discuss the elimination of the "Unavoidable Absence Plan" then in effect.
On August 5 Turberville telephoned Frantz and said "he would like to talk about
the unavoidable absence pay and that he had been driven to the point where it would
have to be discontinued, that he had lived up to his oral agreement with the Union
and that things was [sic] really bad, there being a lot of abuses ... that he was post-
ing a notice" to the effect that no further unavoidable absence pay would be allowed.
Frantz replied, to quote from his testimony, "I told him that I felt that it was a
matter of negotiations but if he felt that way about it why he would have to use his
own judgment on it, ... but if he felt this way about it that he would have to do as
he seen [sic] fit about posting a notice." Frantz further testified that he also informed
Turberville that he still thought the question of the elimination of the unavoidable
absence pay was "a matter of negotiation but that he [Turberville] would have to do
what he felt was best, what he wanted to do about it."
After the above-mentioned Turberville-Frantz telephone conversation, the follow-
ing notice, over the signature of Turberville and dated August 5, was posted on
Respondent's Cliffside, Sandstone, and San Mateo bulletin boards:
The Management gave the Union it's [sic] word that no changes would be
made until after the election. The Company has carried out this stipulation
exactly.
We have lived with unreasonable, abuse and intolerable situations concerning
this Unavoidable Absence clause in the old contract.
The Company has notified the Union on the action it is taking.
Effective August 5, 1964 the Company is revoking this plan. All conditions
of this plan are cancelled.
21 This is not to say that at times Lassiter, Cummings, Gallegos, Dominguez, and Velarde
were not confused on certain matters or that there were no variations in their objectivity
and convincingness But it should be noted the candor with which each of them admitted
that they could not be certain as to dates, times, or the exact words used, only serves to
add credence to what a careful study of their testimony shows as to what they honestly
believed to be the facts.
UNITED NUCLEAR CORPORATION 977
My records will show the abuse and intolerable situations that exist.
This action has nothing to do with the outcome of the election whatsoever.
Under the circumstances , I am convinced , and find, that Respondent , by the dis-
continuing the unavoidable absence pay on August 5, did not violate Section 8 (a) (1)
of the Act . This finding is mainly based upon: ( 1) Frantz' implied acquiescence
made during the aforementioned August 5 telephone conversation ; ( 2) the fact that
on several occasions , commencing with the May 11 meeting , Turberville and Frantz
discussed the matter ; ( 3) the fact that Frantz agreed that the plan was being abused
by the employees and in its place he suggested thatean insurance plan be substituted;
and (4 ) the fact that the plan, - itself, gave Respondent the absolute right "to admin-
ister, interpret , revise or revoke any and all provisions" thereof.
The first bargaining meeting took place on August 18 . During the meeting the
parties went through the expired 1962-64 contract . Each party stated its position
respecting various items therein . Frantz, the Union's spokesman , offered to accept
the terms and conditions of the then -expired 1962-64 agreement in lieu of a new
contract . Respondent , however, rejected this offer. During the discussion, which
then ensued , Respondent 's spokesmen ( its counsel and Turberville ) stated that
Respondent had no intention of entering into any contract containing a clause respect-
ing severance or layoff pay because "it was not Company 's policy to [pay] lay-off
pay." Respondent then announced that it had been working upon a contract pro-
posal, but it needed some additional time to get it into final shape for presentation.
During the course of the aforementioned meeting, Respondent 's vice president,
William A. Buchecker , announced that: Respondent intended to lay off some employ-
ees, reduce its production , and commence shipping some ore from its ore stock-
piles; he did not then know when the layoff would occur, but it would occur as soon
as final details had been worked out, and he did not then know how many employees
would be laid off, but that perhaps as many as 50 percent of the employees might
be so affected . When the Union requested more information concerning the con-
templated layoff, including the date when it would occur , and the number and the
names of the employees to be laid off, Buchecker replied that the requested informa-
tion could not then be furnished because the details thereof had not been finally
determined . When asked by a union committee member if the employees who were
to be laid off in the forthcoming layoff would not receive layoff or severance pay,
Buchecker said, "That is correct , they will not be paid layoff" pay. The meet-
ing concluded with the understanding that the parties would meet the following
morning.
At a meeting between the parties held on August 19, Respondent presented a
contract proposal. After discussion had occurred regarding the various items of
Respondent 's contract proposals and the Union 's contract proposals , Frantz inquired
about the omission from Respondent 's proposals of the layoff or severance pay pro-
vision. Respondent 's counsel or Turberville replied that Respondent "didn't have
any intention of putting " such a clause in any bargaining agreement which might be
reached.
On or about August 21, Manuel Duran , the then president of Local 5605, asked
Leon Gregory , superintendent of Cliffside mine, if he could have a list of the names
of the persons to be laid off as soon as Gregory received such a list . Gregory replied,
to quote from Duran 's testimony, which, in the main, is substantially in accord with
Gregory's version of his talks with Duran, "he didn't see no reason why the Com-
pany should object [to Duran having such a list], and as soon as he got a list he
would send me one."
Commencing on August 25 or 26, Respondent , according to Gregory 's testimony,
"worked on the list up until the night of the 27th . At that time we had one list, our
general seniority list. We just crossed off the men that we were going to lay off and
kept the men that we were going to keep, and the men we were going to transfer to
Sandstone , we kept them on a list, so the list that I had was a general seniority list
with the names crossed off that we were going to let go."
About 5 or 10 minutes before the commencement of the August 28 day shift,
Duran was informed by an employee that he had been laid off . Duran immediately
went to Gregory 's office, and asked him for a copy of "the list that he had promised
earlier to give me as soon as he got one. " When Gregory replied that he could not
furnish Duran with a copy of the list at that time , but could possibly give him one
the following Monday, August 31, Duran replied that by that time he would know
who had been laid off What he wanted to know then was who was slated for layoff
Gregory again refused Duran's request.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 31, to quote from Duran's credited testimony, the following took place:
I walked into the change room, the boss' change room, and I saw Mr.
Drips, the mine foreman, and I asked for Mr. Gregory and I was told that he
was underground, getting ready to go underground, and so I told Drips what I
was there for, that I was there to get a list of the names of the men that
had gotten laid off, which Mr. Gregory had promised to give me earlier. And
he says, "Well, Gregory is not here, but I'll make up a list for you." So we
went in the office and he made out a list and gave me a list.
.Q. Did you and Drips discuss any other matters at this time?
A. Yes, when Mr. Drips handed me the list of the employees that had gotten
laid off, I handed to him about six grievances that had been filed by men that
had gotten laid off.
Q. And what kind of grievances did you hand Drips9
A. Well, they were grievances filed by men who were senior in date of hire
to some of the men that were kept on the job.
Q. What did Drips do or say?
A. He started to look through them, and he asked me, "are they all the
same?" And I said , "Yes, they are all about the same." And I told him if he
could make it a point to see that Mr. Gregory got a hold of them, and he said
that he would, that he would put them on Mr. Gregory's desk so that when he
came up from underground he could go through them and see.
Q. Did you have any further conversations that day with any other persons
connected with management concerning these grievances?
A. Yes, that evening after work about 4:00 o'clock when I came out from
underground, I saw Mr. Gregory, and I asked him if he had seen the grievances
that Mr. Drips had laid on his desk for him, and he said that he had, and I
asked him, "Any comment?" And he says, "No, no comment, everything is
okay."
On September 1 and 2, Duran handed Gregory about nine additional written
grievances. Altogether 15 grievances were submitted to Gregory by Duran. Each
grievance was signed by an individual grievant and each grievance related to the
August 28 layoff, to Respondent's failure either to pay severance or layoff pay, or
to follow seniority in selecting employees for layoff Under date of September 1,
Patrick Bodoh, the then chairman of Local 5605's grievance committee, filed a blan-
ket grievance on behalf of all the laid-off employees.
With respect to the 15 grievances filed with him by Duran, which grievances were
subsequently forwarded to Turberville, Gregory told Duran that: He could not do
anything about the grievances; Respondent did not have a bargaining contract with
the Union; be would take up the grievances with Turberville; and Turberville "was
the only one that could give [Duran any] satisfaction."
Shortly after the filing of the above-referred-to grievances, Bodoh telephoned
Turberville inquiring whether he had received the grievances. When Turberville
replied in the affirmative, Bodoh asked what Turberville intended to do with respect
to them. Turberville then stated, to quote from his testimony, "I told him at that
time I didn't know exactly what I would do with them. I reminded him that we felt
that a contract wasn't in existence but we did feel an obligation to take care of these
grievances and I also went ahead and talked to him and told him that what the men
were grieving for and that we had tried to lay off in accord with seniority to the best
of our ability. And I also told him that there was again-that we were not operat-
ing with the contract then and that the company did not propose to pay layoff pay."
On September 3 the Union filed a charge with the Board which is the basis of this
proceeding.
The manner with which grievances were handled prior to the expiration of the
1962-64 bargaining agreement was, as testified to by Turberville, as follows-
... After I received the grievance and reviewed [it] within a five day period I
render my answer in writing and then after my answer in writing the grievance
committee would meet with me with an International member present and then
we would go ahead and iron out the grievance.
Q. (By Mr. Pickering.) Was this meeting with the grievance committee and
the International representative on grievances held at any given period of time?
A. We didn't have a regular meeting of once a month but primarily they
usually was once a month. We would have one of these meetings but it wasn't
a set date. In other words, we could go two or three months and never have a
meeting.
UNITED NUCLEAR CORPORATION 979
After the expiration of the aforementioned contract, especially with respect to
the 15 grievances filed regarding the August 28 layoff, Respondent dealt directly
with the individuals involved either through Turberville, Greenslade, or the grievants'
immediate supervisors, without the presence of, or notification to, the Union. Upon
the basis of the discussions held between the grievants and Respondent's supervisory
representatives, the grievances were disposed of without notice to the Union, the
statutory collective-bargaining representative of the grievants involved.
At a bargaining meeting held on September 10, the Union presented its first formal
proposed contract. With reference to the question of layoff pay, the respective posi-
tions of the parties at this meeting were the same as they had been in the past: to
wit, Respondent would not agree to layoff pay in any new agreement and the Union
at all times insisted on layoff pay as provided for in the expired 1962-64 agreement.
At the aforesaid September 10 meeting, Respondent's representatives queried
Frantz about the allegations of the charges the Union filed with the Board on
September 3. Frantz refused to discuss the subject, maintaining that the matter was
then in the Board's hands and that the Union would await the Board's determination
with respect to matters set forth in the charge.
The parties met on several occasions after September 10, and tentative agreement
was reached with respect to certain minor grievances, but no agreement was arrived
at regarding any major issues.
Concluding Findings
The Board and the courts have been uniformly in accord with the doctrine that it
is the duty of an employer to enter discussions with respect to collective bargaining
"with an open and fair mind, and a sincere purpose to find a basis of agreement
touching wages and hours and conditions of employment." 22 Respondent's conduct
in this regard fell far short of this standard.
Respondent failed utterly to discharge its statutory duty to bargain collectively
with the Union as the representative of the employees in the appropriate unit, in
good faith It is clear that Respondent at no time during its negotiations entertained
any intention of entering into an agreement with the Union. The fact that Respondent
entered'into negotiations with a mind hermetically sealed against even the thought of
entering into an agreement with the Union is evidenced, in part, by Turberville's state-
ments contained in Respondent's letter of July 29, addressed "UNITED NUCLEAR
EMPLOYEES AND THEIR FAMILY," and mailed to each employee a day or two
before the aforementioned election.
We know that the Union always insists on a check-off and Union security
clause. We know this is the most important thing to the Union from their
standpoint.
As a matter of principle the Company does not believe in forcing its employ-
ees to join and pay the Union, neither does the Company believe in acting as a
collection agent for the Union. We have no intention, even if a Union is voted
back in, of ever agreeing to any Union security or check off clauses. We also
believe that the Union would make you go on strike before they would agree to
any contract without any check off or Union security clauses Thus we feel that
if a Union is voted back in out enzplolees would definitely be called out on a
strike before very long. It is for this reason I felt you should know our position
and theirs before you vote. That the Company would not be hurt but benefit by a
strike. However we are interested in our employee's [sic] welfare and do not
want to see them hurt and have to suffer a sti ike. Therefore I want to personally
ask you to vote against the Union and any strikes
Further evidence that Respondent lacked any intention of entering into discussions
with the Union with an open and fair mind and with a sincere purpose to find a basis
of agreement is its absolute refusal to bargain with respect to such matters as the
August 28 layoff and refusal of payment of severance or layoff pay.
On August 28, after the 1962-64 contract had expired and negotiations for a new
contract were in progress, Respondent unilaterally and without prior discussion with
the Union laid off about 40 employees The fact that the layoff was for economic
reasons, Respondent, nonetheless, failed to meet its statutory obligation to notify and
consult with the Union concerning its decision. Buchecker's statement at the August 18
22 Globe Cotton Mills v N.L R B , 103 F. 2d 91, 94 (C A 5) ; in accord, N L.R.B. v.
Athens Manufacturing Company, 161 F. 2d 8 (C A. 5) , N L.R B v. Reed & Prince Manu-
facturing Company, 118 F. 2d 874 (C A. 1) ; N L.it B. v. Highland Park Manufacturing
Company, 110 F. 2d 632 (C A. 4).
217-919-66-vol. 15 6-6 3
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining meeting that a layoff was contemplated was too casual and too vaguely
worded to be significant. Buchecker's statement constituted no more than an
announcement that Respondent intended to lay off some undisclosed number of
employees of some unknown time in the future. In fact, the number of persons
to be laid off and the identity of the persons to be selected were concealed from
the Union until after the decision had been made and said decision had been carried
out. This is not to say that the Union must approve the employees' representative
before an employer may effect a layoff for business reasons, but it is to say that a
chance to bargain must be afforded before an employer sets in motion an act affecting
the hire and tenure of his union workers' employment. This is so because "Such uni-
lateral action minimizes the influence of organized bargaining. It interferes with the
right to self-organization by emphasizing to the employees that there is no necessity
for a collective-bargaining agent." 23 The fact that Respondent desired to impress
upon its employees that they needed no bargaining representative and would fare
much better if they relied upon Respondent's generosity was clearly brought home to
them by Buchecker's July 23 letter to the employees wherein he said, "If you and
your family want to continue to enjoy wages, fringe benefits and conditions BETTER
THAN any union plant in the area without having to suffer the union financial burden,
we urge you to vote AGAINST union representation "
It is well settled that an employer who is under the statutory duty to bargain with
the representative of his employees violates this duty when he effects unilateral altera-
tions, without consulting the representative, with respect to matters regarding which
he is required to bargain.24
Accordingly, I find that Respondent violated the Act by unilaterally laying off about
40 employees on August 28 The conclusion that the unilateral August 28 layoff vio-
lates Section 8 (a) (5) and (1) of the Act is not altered by the fact that there was no
contract in effect at that time.23
Also illustrative of the inescapable conclusion that Respondent was giving the
Union, as the court said in N L.R.B. v. Athens Manufacturing Company, supra, "a
runaround while purporting to be meeting with the Union for the purpose of collective
bargaining," is the fact Respondent's representatives spent more time attempting to
ascertain the Union's evidence to substantiate the charge it had filed with the Board on
September 3 than in discussing matters which were proper subjects of collective bar-
gaining. In fact, whenever the Union desired to discuss severance or layoff pay,
Respondent refused to do so, saying that it was against "Company policy" to enter into
any agreement containing such a provision.
I further find that by Smith's, Fowler's, and Lilly's respective statements to Cum-
mings, Lassiter, Velarde, Gallegos. and Dominguez, as found above, Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, thereby violating Section 8(a)(1) thereof.
I recommend that the complaint, as amended, be dismissed insofar as it alleges
unfair labor practices not specifically found herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection
with the operations of Respondent, as described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (5) of the Act, I will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent, on August 18, 1964,26 and at all times thereafter,
has refused in good faith to bargain collectively with the Union as the representative of
the employees in an appropriate unit, I will recommend that Respondent, upon request,
bargain collectively with said labor organization as the exclusive representative of all
employees in the unit heretofore found appropriate, and if an agreement is reached,
embody such understanding in a signed agreement.
23 Maaj Department Stores, d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376,
385 Cited with approval In N.L R B. v. Crompton-Highland Mills, Inc., 337 U.S. 217.
N.L.R.B. v. Beane Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736;
N L R.B. v. Crompton-Highland Mills, supra; Armstrong Cork Company v. N.L.R.B., 211
F. 2d 843 (C.A. 5) ; Industrial Union of Marine and Shipbuilding Workers of America,
AFL-CIO (Bethlehem Steel Co., Shipbuilding Div.) v. N.L.R.B., 320 F. 2d 615 (C.A. 3).
21 See Industrial Union of Marine, etc. v. N L R.B., supra.
20 The date of the first bargaining session.
UNITED NUCLEAR CORPORATION 981
Except for the unlawful conduct found above, the record does not disclose that a
danger exists that Respondent in the future may commit other unfair labor practices
unrelated in kind to those found. Under the circumstances, I will not recommend that
the Board issue the usual broad cease-and-desist order.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Nuclear Corporation is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, and Local No 5605, United
Steelworkers of America, AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. All Respondent's Cliffside and Sandstone mines production and maintenance
employees, excluding professional, administrative, and clerical employees, guards, and
all supervisors as defined in the Act, constitute, and at all times material constituted,
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material the Union has represented a majority of Respondent's
employees in the unit found above to be appropriate and by virtue of Section 9(a)
of the Act, the Union has been, and now is, the statutory collective-bargaining repre-
sentative of all the employees in said unit for the,purposes of collective bargaining
with respect to grievances, labor disputes, rates of pay, wages, hours of employment,
or other terms and conditions of employment.
5. By unilaterally laying off about 40 employees on August 28, 1964, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act
6. By refusing on August 18, 1964, and at all times thereafter, to bargain collec-
tively with the Union as the statutory representative of the employees in the appro-
priate unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not engaged in other violations of the Act as alleged in the
complaint, as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
mant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
mend that United Nuclear Corporation, Grants, New Mexico, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the statutory collective-
bargaining representative of the employees in the above-described appropriate unit
with respect to grievances, labor disputes, wages, rates of pay, hours of employment,
or other terms and conditions of employment.
(b) Unlawfully interfering with, restraining, or coercing its employees, threaten-
ing them with various reprisals if the Union won the aforementioned Board-conducted
election, advising its employees that they would fare better if they relied solely on
its generosity rather than to rely upon the Union's chances of securing better working
conditions and other benefits for them, and otherwise unlawfully attempting to wean
its employees away from the Union.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized in Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively, to the extent and at all times required by
law, with the Union as the statutory representative of the employees in the above-
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described unit, with respect to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and embody in a signed agree-
ment any understanding reached.
(b) Post at its Grants, New Mexico, mines copies of the attached notice marked
"Appendix." 27 Copies of said notice, to be furnished by the Regional Director for
Region 28, shall, after being duly signed by Respondent's representative, be posted
for 60 consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not alteied, defaced, or covered by any
other material
(c) Notify the aforesaid Regional Director, in writing, within 20 days from the
receipt of this Decision what steps Respondent has taken to comply therewith 28
It is further iecommended that unless on or before 20 days from the receipt of this
Decision Respondent notifies said Regional Director, in writing, that it will comply
with the above recommendations, the National Labor Relations Board issue an order
requiring it to take such action
It is also recommended that the complaint, as amended, be dismissed insofar as
it alleges unfair labor practices not specifically found herein.
27 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner." In the further event that the Board's Order is enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
28 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken in compliance."
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 unlawfully interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed in Section 7 of the National Labor Rela-
tions Act, nor will we advise our employees that they would fare better if they
relied solely on our generosity rather than to rely on United Steelworkers of
America, AFL-CIO, and Local Union No. 5605, United Steelworkers of Amer-
ica, AFL-CIO, chances of securing better working conditions and other benefits
for them.
WE WILL NOT in any like or related 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 above-named labor organization, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively with the above-named labor organization as the
statutory representative of all our employees in the bargaining unit described
below with respect to grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms or conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement. The bar-
gaining unit is:
All our Cliff side and Sandstone mines production and maintenance em-
ployees, excluding professional, administrative, and clerical employees,
guards, and all supervisors as defined in the Act.
All our employees are free to become or remain members of the above-named
labor organizations or any other labor organization. We will not discriminate in
MOCK ROAD SUPER DUPER, INC . 983
regard to hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf of any such labor
organization.
UNITED NUCLEAR CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1015
Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 247-2520.
Mock Road Super Duper, Inc. and Retail Clerks Union Local 1059,
Retail Clerks International Association , AFL-CIO. Case No.
9-CA-3309. January 18, 1966
DECISION AND ORDER
On April 19, 1965, Trial Examiner John H. Eadie issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, 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 the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint, and recommended that
those allegations be dismissed. Thereafter, Respondent filed excep-
tions to the Decision and a brief in support thereof. The General
Counsel also filed a brief in support of limited exceptions to the
Decision.
The National Labor Relations 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 briefs,
and the entire record in this case, and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner to the extent
consistent herewith.
1. We agree with the Trial Examiner that Respondent unlawfully
interrogated its employees by asking them whether they thought they
needed a union and threatening them with stricter work rules and loss
of employment if the Union was successful, thereby violating Section
8(a) (1) of the Act. However, contrary to the Trial Examiner, we
find that Respondent's no-solicitation rule was unduly broad in scope.
156 NLRB No. 82.