United States Gypsum Co.

National Labor Relations Board - Board Decisions

May 1, 1951

94 N.L.R.B. 112 (N.L.R.B. 1951)

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice and direct that persons employed during the payroll period ending
immediately next preceding the date of such Direction of Election be
permitted to vote.
In view of the relatively brief periods of employment afforded car-
penters and set erectors by members of the Society,, and the frequent
interchange of employment by the carpenters and set erectors among
members of the Society and other companies in the industry, we shall
depart from our usual eligibility rule.,, We shall direct that employees
in the appropriate unit who have worked for one or more of the em-
ployer members of the Society for a total of 2 or more days 5 during
the 6-month period immediately preceding the date of this Decision
and Direction of Election are eligible to vote in the election. Thus,
employees who would otherwise be eligible to, vote will not be disfran-
chised if, immediately prior to the election, they happen to be,employed
by a producing company not involved in this election.6
[Text of Direction of Election omitted from publication in this
volume.]
STelevision Film Producers Association , et al, supra
Norcal Packing Company , et al, 76 NLRB 254 , The Independent Motion Picture Pro-
ducers Association , et at., supra.
UNITED STATES , GYPSUM- COMPANY and INTERNATIONAL WOODWORKERS
of AMERICA ,: CIO. Case, No . 15-C.1-134. , May 1, 1951
Decision and Order
On September 8, 1950, Trial , Examiner Wallace E. Royster issued
_ his Intermediate Report in the above-entitled proceeding , finding that
Respondent had engaged in and1 was engaging in certain unftiir labor
practices , and, recommending that it cease and desist therefrom and
„take certain affirmatives action, as set forth in the copy of the Inter
mediate, Report attached , hereto.. Thereafter . Respondent ' filed ex-
ceptions to the Intermediate Report, and .a, supporting brief. Re-
spondent 's request for oral , argument, is , denied because the record and
brief, in our opinion , adequately set forth the , position of, Respondent.
The Board 1 has reviewed the rulings of. the Trial Examiner at the
hearing , and finds that no prejudicial error was committed. ; The rul-
ings are hereby affirmed.2
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and
Members Houston and Reynolds]
2 The Trial Examiner propeily denied Respondent ' s motion to dismiss the complaint
insofar as it alleged as unfair labor practices acts not set forth in detail in charges filed
within 6 months of their occurrence These acts occurred within 6 months of the filing
of the original charge It is not necessary that all details included in the complaint be
set forth in the charge which tolls the statute of limitations Kansas Milling Company v.
N L R B, 185 F 2d 413 (C A 10), enforcing 86 NLRB 925; Cathey Lumber Company,
86 NLRB 157 , enforced , 185 F. 2d 1021 ( C. A. 5) ; Stokely Foods, Inc., 91 NLRB 1267.
94 NLRB No. 27.
UNITED STATES GYPSUM COMPANY 113
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations, to the
extent that they are consistent with our Decision and Order below.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by interrogating its employees as to
their attitude toward the Union.3
2. We agree with the Trial Examiner also that Respondent unlaw-
fully refused to bargain collectively with the Union. We hold that
Respondent's entire course of conduct shows that it engaged only in
`'surface bargaining" 4 and that its negotiations with the Union were
not carried on in good faith with an open mind or a sincere purpose
to reach an agreement.' The evidence upon which we base this finding
is as follows :
(a)From the time in July 1948 when the Union first claimed to
represent its employees, Respondent frequently expressed its intense
dislike for the Union and its desire to keep that labor organization
from its plant. During the weeks preceding the representation elec-
tion held on September 17, 1948, Respondent went further and freely
predicted to employees that if the Union won the election its bargain-
ing with Respondent would result in an impasse, a strike, and the
moving of the Greenville plant. This hostility to the Union continued
even after the Union had won the elections
(b) At the first short bargaining conference between Respondent
and the Union, the former's chief spokesman said, in effect, that it
would be a waste of time for them to discuss union security, checkoff,'
straight seniority, and arbitrations "We will negotiate it," he de-
clared, "but we will not agree to it." This was not mere bargaining
3 Stan dard-Cooea-Thatcher Company, 85 NLRB 1358 ; N L R B v National Plastic
Products Co , 175 F 2d 755 (C. A 4) , N L. R B v Kopman-Woracek Shoe Mfg. Co ,
158 F. 2d 103 (C. A 8).
4 N L R B v Whittier Mills Co„ 111 F. 2d 474, 478 (C A 5).
IN L R B V Reed cC Prince Mfg Co , 118 F 2d 874, 885 (C. A. 1) ; N. L R. B. v.
Tower Hosiery Mills, Inc, 180 F 2d 701 (C. A 4).
Smith and various other supervisors continued to interrogate employees about their
union attitudes and to make pi edictions regarding the troubles which the Union would
being to'the plant and its employees
4 We do not agree with the Trial Examiner that checkoff is not a matter regarding which
the Act requires cniploveis and unions to bargain The case of Hughes Tool Company v.
N L R B , 147 F 2d 69 (C A 5), on which the Trial Examiner relies, was decided in
1945, before the enactment of the Labor Management Relations Act Whatever the status
of checkoff may have been under the Wagner Act (compare the holding in the Hughes
Tool case with that in N L R B v Reed & P) ince, 118 F 2d 874, 883 (C A 1) and
M T Stevens & Sons Company, 68 NLRB 229), we are satisfied from the language and
legislative history of the 1947 amendments that Congress intended that the bargaining
obligation contained in Section 8 (a) (5) should apply to checkoff. H R 3020, 80th Con-
gress, 1st Sess , p 10 , H R Rep No 245, pp 29, 71 , H R. Conf. Rep. No 510 on H R.
3020, p 34
8 Respondent's contention that arbitration is not bargainable is rejected. N L R B v.
Boss Mfg Co, 118 F. 2d 187, 189 (C A 7) ; N L R B v Montgonvesy Ward & Cc, 133
F 2d 676 (C A 9)
953841-52-vol 94--9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strategy; it reflected a fixed determination not to bargain in any
practical sense on four matters which are customary subjects of col-
lective bargaining. That determination was clearly revealed when
Respondent distributed to its employees a printed booklet empha-
sizing its rigid attitude regarding any union security, checkoff, straight
seniority, or arbitration. It was revealed also by Works Manager
Smith's statement to his employees that "we would shut it (the plant)
down and move it before we would agree to those four things. ...
(c) Respondent, without consulting the Union, unilaterally granted
wage increases to its employees on December 27, 1948, only 3 months
after the Board's certification of the Union. This was per se an
unlawful refusal to bargain.10 For the reasons stated by the Trial
Examiner in his Intermediate Report, we find no merit in the argu-
ment that Respondent was justified in ignoring the statutory bargain-
ing representative because of the Union's delay in beginning contract
negotiations," or because of Respondent's alleged practice of main-
taining a certain wage relationship with its competitors.
(d) Respondent again ignored the Union in making its January
and February 1949 layoffs. At a bargaining conference held on
January 27, 1949, the Union submitted an agreement which, among
other things, proposed that layoffs be made according to seniority.
The Union thus indicated its interest in the layoff problem. Although
a serious drop in orders for finished products had taken place the
previous week and Respondent was then considering making a' sub-
stantial reduction in its work force, it did not so inform the Union.
A week later, without notice to the Union, it commenced laying off
employees. By so doing it deprived the Union of any voice regarding
a highly important condition of employment which was a proper
subject for collective bargaining.12
,In its brief Respondent urges for the first time that it was not required to bargain
regarding union security because the Union had not qualified in an election held under
Section 9 (e) of the Act. No such objection was ever expressed by works Manager Smith
in any of his conferences with the Union On the contrary, his announced determination
to close the plant rather than agree to any form of union security indicates clearly that
his attitude would not have been any different even if the Union had been so qualified.
His position on this matter was plainly the result of a closed mind regarding union
security generally. Yet union security has long been accepted as a bargainable subject.
National Licorice Co v N L R B , 309 U. S 350, 360 Such inflexibility by an employer
or union on a single issue, if it stood alone, might not constitute evidence of bad faith.
As part of a pattern of resistance to the collective bargaining process, however, it lends
evidentiary weight to the conclusion that Respondent did not bargain in good faith.
(See footnote 17 below.)
In finding that Respondent violated Section 8 (a) (5) of the Act, Member Reynolds does
not in any manner rely on Respondent's refusal to bargain regarding union security, for
until the Union qualifies pursuant to a Section 9 (e) (1) election, in his opinion Respondent
is not obligated to bargain concerning union security See section 2 (a) of the Board's
Order, infra.
to N L R B v. Crompton-Highland Mills, 337 U S. 217.
li An employer cannot disregard the existence of a proper bargaining representative
because the agent may be somewhat slow in starting negotiations. Motor Valve & Mann.
facturing Co v. N L R B., 149 F. 2d 247 (C A. 6).
12 National Licorice Company v. N L. R. B , 309 U. S. 350, 360.
UNITED STATES GYPSUM COMPANY 115
Respondent says that to have notified the Union and given it an
opportunity to- discuss the layoffs would have resulted in an unreason-
able delay in reducing its work force. We cannot agree. Respondent
for almost 2 weeks was considering the question of layoffs. When
made they were spread over a period of several weeks. We believe
that a sincerely cooperative employer, aware of the probable necessity
of reducing the number of his employees, would have called in the
representative of his employees immediately to discuss his proposed
selections for layoff. We are satisfied that Respondent's failure to
do so reflected its belief, not that such consultation would cause un-
reasonable delay, but that the problem of layoff was no concern of its,
employees' selected representative.13
(e) Finally, Respondent's counterproposals, which were submitted
to the Union on June 23, 1949, furnish additional evidence of bad
faith. In this proposed contract Respondent retained for itself un-
restricted power to establish individual wage rates and job classifi-
cation, grant general wage increases, and select employees for layoff,
transfer, and promotion.14 Further, it banned union activity of all
kinds on company property even on the employees' own time, restricted
the right of the Union to have representatives present at grievance
meetings (limiting it to situations where the employee requested the.
Union's presence)," and required the Union to assume responsibility
for unauthorized as well as authorized strikes in its plants.
In sum, Respondent proposed shackles for the Union, in derogation
of the latter's bargaining rights, and unrestrained freedom for itself.
Such a contract, if entered into, would have amounted to a formal
negation of the collective bargaining principle. Respondent must
have known that no union could possibly have agreed to it.
Respondent argues that its failure to reach agreement with the
Union resulted from (1) the Union's delay in setting and attending
bargaining conferences and (2) the existence of a genuine impasse
regarding union security, checkoff, straight seniority, and arbitration.
We cannot agree. However dilatory the Union may have been, it was
Respondent's attitude and conduct which doomed negotiations from
the beginning. None of this was attributable to the Union's procrasti-
nation. It cannot therefore excuse Respondent's failure in its statutory
duty."
a Won ks Manager Smith so testified
"The insistence on unilateral control of such matters as layoffs, transfers , and wage
adjustments and increases is evidence of bad faith bargaining . David I Cohen, 91 NLRB
1363 Dixie Culvert Manufacturing Co, 87 NLRB 554; Franklin Hosiery Mills, Inc.,
83 NLRB 276
'"Cf Bethlehem Steel Company, Shipbuilding Dwision , 89 NLRB 341
"Motor Valve S Manufacturing Co v. N L. R B , 149 F 2d 247 (C. A. 6) ; ef. N L.
R B v. Express Publishing Co, 111 F. 2d 588 (C. A '5), reversed on other grounds,
312 U S 426.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the alleged impasse regarding union security, checkoff,
straight seniority, and arbitration, it is true that Respondent was
not required to yield on these or any other specific union proposals.
If Respondent's intransigeance on these matters stood alone, therefore,
we might well not regard it as an indication of bad faith. Associated
with all the other conduct here present, however, it is further evidence
of Respondent's intention to. avoid coming to any agreement at all
with the Union." Respondent's willingness to meet with the union
representatives and explain to them the reasons for its inflexibility
v, as not an acceptable substitute for a sincere effort to reach an accord 18
Accordingly, we find that from and after December 27, 1948 (except
for the period from February 7 to April 4, 1949), Respondent refused
to bargain with the Union, in violation of Section 8 (a) (5) and (1)
of the Act 1°
-3. The discrimination
a. Hiram Peoples
In connection with the Trial Examiner's findings as to Hiram
Peoples, with which we agree," several additional observations may
be made.
17 "An employer ' s mtiansigeance on a particular issue has been found to evidence bad
faith in bargaining where the record as a whole has mdlcated that such intransigeance
reflected an intention to avoid coming to any agreement " National .ltaiitime Union of
America, 78 NLRB 971 , 981, entoiced 175 F 2d 686 ( C A 2), cettnoraii denied 338
U S 954
16AMs-Chalmers Manufacturing Co v N L R B, 162 F 2d 435 ( C. A 7) ; N L R B
v Boss tllanufacturinq Go, 118 F 2d 187 (C A 7)
"The General Counsel disclaimed ani contention that there is is any unlawtul refusal
to bargain from February 7 to April 4 , 1949 , the Tual Examunei thetefone found none.
We adopt this finding solely on the ground that no exceptions to it have been tiled
Respondent contends that it was not under an obligation to bargain with the Union
during any of the periods undei consnde . atnon because the CIO was not contenponaneously
in compliance with the filing nequn•enents of Section 9 (1), (g), and ( h) of the Act.
It further contends that it was not required to bargain room mid-Decemnber 1945 to April
4, 1949, on the ground that duung that time a noncomplying local union was in existence
at its plant However , the legunnements of Section 9 (f), (g), and (h) are purely
nnocedu -al They do not limit the substantive conun'mnd of Section 8 (a) (3) New Jersey
oat het Mills , Inc , 92 NLRB 604 ; West Texas Utilities Co y N L R B , 184 F 2d
233 (C A D C )
Mom cover , matters of compliance with Section 9 (f). (g), rind (h) are not litigable
in Board proceedings Red Rock Company , 84 NLRB 521 , enforced 187 F 2d 76 (C A.
5) , Porto Rico Container Con poratron , 81) NLRB 1570 , Comfov t Spn ing Corporation, 90
NLRB 173 It can be noted , hovevei, that the Board has determined IiOm administrative
Investrnations that the filing requirements of the Act were fully satisfied here, and that
this was true even if, as the Court of Appeals held in N L Tt B v JTigbland Park Manu-
facturing Co (184 F. 2d 98 (C. A 4 ), pending on writ of certiorari No 425, this Term),
parent federations like the CIO are required to comply with those requirements
Member Reynolds concurs in this disposition of the Respondent ' s contention conceiving
the Union ^ compliance status The tarts in this respect parallel those present in the
New Jersey Cam pet ease Hence, although dissenting in that case, Reinber Reynolds
considers himself bound by the decision therein
2-The Trial Examiner found that Superintendent Heyman aduutted that he called
Peoples to his office the last day that Peoples worked and "that he might then have asked
if the latter could weather a strike " We find, however , that Ncyman denied that
UNITED STATES GYPSUM COMPANY 117
If Respondent were seeking to justify merely its selection of Peoples
for layoff during February and early March, when production was
abnormally low, we would, like the Trial Examiner, be inclined
to accept Respondent's interpretation. During this period it is clear
that operation of the cutoff saw was not a full-time job and that
Peoples, if he had been retained, would have had to spend a good
deal of his time on other tasks, perhaps including some work for
which his small stature did not well qualify him.
Respondent's production did not remain low. From March 15 to
July 31 the fabricating department, where Peoples had worked, added
so many employees to its payroll that it ended the period with more
employees than it had had before the February layoffs.21 Neverthe-
less Peoples was not recalled.
It is Respondent's position that it dispensed with Peoples perma-
nently because operation of the cutoff saw was at no time a full-time
job, and because Peoples was not able to perform satisfactorily the
other tasks to which it was constantly necessary that he be assigned.
However, if Peoples was, during periods of normal production, re-
quired to spend a substantial amount of his time on work other than
the cutoff saw, as Respondent contends, and if in doing this other
work he was as inefficient and unsatisfactory as Respondent says
lie was, it is difficult to understand why Respondent did not hire some-
one else in his place many months before February 1949. It must
be remembered that, during his more than 2 years' service, he was
never warned of possible discharge because of alleged poor perform-
ance. At the time of his layoff on February 5, moreover, no mention
was made of the shortcomings which Respondent now contends were
so serious. Indeed, Superintendent Neyman admitted that he had
offered to recommend Peoples "very highly" as a dependable worker
on the cutoff saw.
In justification, Respondent relies upon the testimony of some of its
supervisors to the effect that the labor market in Greenville was very
tight until the time of the February 1949 layoffs. We find this testi-
mony unconvincing in the face of the statement by Works Manager
Smith, who was in a better position to be informed on this matter than
any of his subordinates, that the labor shortage in Greenville lasted
only Into the first part of 1948.
there was any talk about unions or strikes on that occasion His admission of possible
inter rogation about a strike was with respect to it conversation with Peoples the previous
Septombei
21
During the slack penod from February 1 to March 1S, 1949, the fabricating department
terminated 38 employees, of which 26 were (like Peoples) classified as laborers. From
March 15 to July 31 it terminated 37 more (of which 28 were laborers), but hired 85 (of
which 60 were laborers) Thus the department ended July with 10 more employees (6
more laborers ) on its payroll than on February 1
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, as did the Trial Examiner, that Respondent, by failing to
reemploy Hiram Peoples, discriminated against him because of his
conspicuous union activity, in violation of Section 8 (a) (3) and (1)
of the Act.
b. Bennie Pearson
Bennie Pearson had been employed by Respondent in the grinder
room of its board mill more than 5 years at the time of his layoff on
February 5, 1949.
Toward the end of September 1948, the board mill superintendent,
G. N. Vaught, called Pearson into his office during working hours,
questioned him about the Union, and then ended up with: "Well, if
you had a wife, would you let me or some other man come into your
house and rule your house?" Pearson said, "No, Sir." Then .Taught
said, "Hell, no. And the Company isn't going to do it either, not
come in here and rule them." Before the Company would let them
move in, he declared, it would shut the plant down 22
Early in January 1949, Pearson had another conversation with
Superintendent Vaught, in which Vaught informed him that there was
to be a layoff, adding: "They are going to lay you off, and I'm not
going to open my mouth. They tell me you are around here getting
these boys to join the Union."
It is against this background that the termination of Pearson's
employment on February 5, 1949, must be considered.
Respondent attempts to justify its selection of Pearson for layoff
on the ground that he was persistently tardy, that he was a shiftless
worker and not to be depended upon, and that he let the grinder run
empty. Yet Pearson's immediate superior, Foreman Jaynes Bentley,
admitted that he never complained to any of the higher supervisors
about Pearson's being late, or shiftless, or undependable.
If Pearson really "let the grinder stay empty most of the time,"
as one of Respondent's witnesses testified, it seems unlikely that Re-
spondent would have kept him in its employ for 5 years.
As for Pearson's tardiness, we share the Trial Examiner's belief
that this, although persistent, was less serious than Respondent would
have us believe. Bearing in mind the testimony of Works Manager
Smith that the labor shortage in Greenville came to an end early in
1948, we do not see why Respondent would have retained Pearson in
its employ throughout the balance of that year if his lateness had been
much worse than that of his fellow employees. According to Re-
32 The Trial, Examiner found that this conversation took place in early January 1949.
Examination of the record convinces us that Pearson wac testifying to two different con-
versations with Superintendent Vaught, one in September and one in January. Accord-
ingly, we find that this particular conversation took place about the 23rd or 24th of
September 1948.
UNITED STATES GYPSUM COMPANY 119
spondent's witness Hendricks, the gatekeeper, "a lot of employees"
would sometimes come in and punch the time clock before changing
their clothes (as Pearson sometimes did) and thus would be late in
reporting for work.23 Shift Foreman Mauceli admitted that he repri-
manded Pearson for his lateness only five times over a period of 2
years, and that the last such occasion was 2 to 6 months before the
date of his layoff. The grinder room superintendent, Shepherd,
admitted that the most recent occasion on which Shift Foreman
Mauceli had complained to him about Pearson's work was in July or
August 1948, 6 or 7 months before his layoff.
At the time of Pearson's dismissal, 24 of the 33 laborers retained on
the board mill payroll had been hired more recently than he.
Respondent's subsequent handling of Pearson's case sheds additional
light upon its motive in terminating his employment. When sales
and production improved, Respondent hired 33 laborers for the board
mill between March 15 and July 31. This was 12 more than had been
released during the slow period from February 5 to March 15. Al-
though Pearson had been told that his layoff was temporary and that
he would be recalled, Respondent never sent for him. He alone of
the 6 men in the grinder room was never taken back to work.
We find, as did the Trial Examiner, that Respondent's termination
.of Bennie Pearson's employment on February 5, 1949, was motivated,
not by a sincere dissatisfaction with his work, but by Respondent's
hostility to his union activities, and that Respondent thereby violated
Section 8 (a) (3) and (1) of the Act.
c. Paul Johnson
Paul Johnson was added to Respondent's pressboard department
payroll on March 19, 1947.2' When the Union began to organize a
local chapter in December 1948, Johnson attended meetings and led
its prayers. He had previously persuaded some of the men at the
plant to become union members. Early in January 1949, shortly
before Johnson was laid off, Superintendent Wiley Swilley of the
pressboard department came to where Johnson was working at one of
the presses and informed Johnson that he had been told that Johnson
"Hendricks ' testimony that he never saw Pearson ring in after 7 o'clock tended to
refute other evidence offered by Respondent to the effect that Pearson often came in
extremely late We cannot accord weight to assertions in Respondent's brief as to what
the time clock cards would have shown in Pearson's case The record reveals no denial
by the Trial Examiner of any offer by Respondent to have these cards admitted in evidence,
nor any testimony or stipulation as to their content
24 The Trial Examiner erroneously found that Paul Johnson had been hired on March 1,
1948, and laid off on February 23, 1949. The actual dates were March 19, 1947, and Jan-
mary 26, 1949 . The mistakes resulted from the fact that Respondent had two Paul
Johnsons in its employ It was the other Paul Johnson , who worked in the fabricating
,department , who was hired and laid off on the dates found by the Trial Examiner.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was one of the main leaders in the Union and had been doing some
praying at the canon meetings. When Johnson admitted the praying,
Swilley said, "Well, I thought you weren't going to join the union,"
and then walked on. On January 26, 1949, Paul Johnson was laid
off and was never recalled.
Respondent explains Johnson's termination on the ground that the
curtailment in production referred to above made it necessary to make
mass layoffs. Thus, Foreman Jack Gordon testified that Johnson was.
laid off simultaneously with a group of 25 to 30 other men, and that
this group had been selected on the basis of which were "the newest,
the least versatile," and the least capable.
However, Johnson was released on January 26, 3 days before the
date given by Works Manager Smith as the date on which the man-
agement had come to the conclusion that a reduction in staff would
be necessary. Contrary to Gordon's assertion, only three other em-
ployees in the pressboard department (and only five in the entire
plant) were released along with Johnson, in advance of the numerous
layoffs of early and mid-February.
As for Johnson's relative length of service, two-thirds of the
laborers retained in the pressboard department at the time of his lay-
off were hired more recently than he. As to "versatility," there is no,
showing in the record that,Jolnson was less versatile than the more
recently hired laborers retained on the payroll after January 26.
Johnson had previously been employed by Respondent in 1937 and
again in 1946, in different departments. Within the pressboard de-
partmnent itself he had worked on a variety of operations all over the
department. There is no evidence, moreover, that Johnson was less
strong or less skillful than the men who were retained after his layoff:
At bottom, then, Respondent is relying upon its complaint that
Johnson frequently left work to smoke or to talk and that he stayed
too long in the smoking room. Yet Superintendent Swilley, who.
often passed by where Johnson worked, admitted that he had never
seen Johnson leave his work. Furthermore, Respondent's own wit-
ness Joseph Brown testified : "Well, he didn 't smoke so much, not as
long as he was working with me." When asked if he had ever seen
Johnson sneak off for a smnoke, Brown replied definitely that he had
never seen him do so. Johnson 's immediate supervisor , Foreman Jack
Gordon, testified that Johnson was an "average" worker. It is not
contended that Johnson was ever warned that his alleged excessive
talking. smoking, or lingering in the washroom might result in his
dismissal.
It is not suggested, moreover, that Johnson's conduct in these re-
spects had changed any since his rehiring in 1947. We believe that,
if TnImson's behavior had been as annoying to Respondent as it now
UNITED STATES GYPSUM COMPANY 121
contends, it would not have retained him on its payroll for almost 2
years. Once again, Respondent cites the labor shortage. And once
again we note that Works Manager Smith testified that the shortage
continued only through the first part of 1948.
At the time of his layoff, Johnson was told by Superintendent Swil-
ley that, he would be recalled when business improved. Business did
improve. From March 15 to July 31, 1949, Respondent hired 62
laborers for the pressboard department. The total number of sepa-
rations during the slow period from January 25 to March 15 had been
only 14. Yet Johnson failed to receive a call to return to work.
We find that Respondent laid off Paul Johnson on Jaiiuary 26, 1949,
because of his connection with and activity on behalf of the Union,
and not because of a decline in business,' and that in so doing Re-
spondent violated Section 8 (a) (3) and (1) of the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, United States Gypsum Com-
pany, Greenville, Mississippi, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Making unilateral changes in wage rates, or in any other man-
ner refusing to bargain collectively with International Woodworkers
of America, CIO, as the exclusive bargaining representative of all
the employees in the unit found appropriate in the Intermediate Re-
port attached hereto.
(b) Discouraging membership in International Woodworkers of
America, CIO, or in any other labor organization of its employees, by
discharging, laying off, refusing to reinstate, or failing to recall any of
its employees, or in any other inanner discriminating in regard to their
lure or tenure of employment, or any term or condition of their em-
ployment.
(c) Interrogating its employees concerning their union member-
ship, activity, or attitude.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Woodworkers
.of America, CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
25 In this we go further than the Turd Examiner. who held that the failure to recall
Johnson was discunuuatory, but that his original layoff was probably motivated by
economic reasons We believe that the Trial Examiner ' s finding in this respect was
chiefly the result of the confusion in dates referred to in footnote 24 above.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other concerted activities for the purpose' of collective bargaining or
other mutual aid or protection, and to refrain from any or all of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Wood-
workers of America, CIO, as the exclusive representative of all
employees in the unit found appropriate in the Intermediate Report
attached hereto, with respect to rates of pay, wages, hours of employ-
ment, arbitration, seniority, checkoff, and other conditions of employ-
ment (including union security, provided that the Union has been
authorized under the provisions of the Act) and, if an understanding
is reached, embody such understanding in an agreement.
(b) Offer to Hiram Peoples, Bennie Pearson, and Paul Johnson
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other.
rights and privileges.
(c) Make whole Hiram Peoples, Bennie Pearson, and Paul John-
son in the manner provided in the Intermediate Report under the
heading "The remedy," for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them, except that
back pay for Paul Johnson shall be computed from January 26, 1949.
(d) Upon request, make available to the Board, or its agents; for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and the
right of reinstatement under the terms of this Order.
(e) Post at its Greenville, Mississippi, plant, copies of the notice
attached hereto and marked Appendix A 26 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by Respondent, be posted by Respondent
immediately upon receipt thereof and maintained by it for at least
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
26 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A Decision and Order ," the words "A Decree of
the United States Court of Appeals Enforcing."
UNITED STATES GYPSUM COMPANY 123
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL WOOD-
WORKERS OF AMERICA, CIO, or in any other labor organization
of our employees by discharging, laying off, refusing to reinstate,
or failing to recall any of our employees, or in any other manner
discriminating in regard to their hire or tenure of employment,
or any term or condition of their employment.
WE WILL NOT interrogate our employees concerning their union
membership, activity, or attitude, or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to
join or assist INTERNATIONAL WOODWORKERS OF AMERICA, CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL NOT make unilateral changes in wage rates.
WE WILL bargain collectively upon request with INTERNATIONAL
WOODWORKERS OF AMERICA, CIO, as the exclusive representative
of all our employees in the bargaining unit described below, with
respect to rates of pay, wages, hours of employment, arbitration,
seniority, checkoff, and other conditions of employment (in-
cludin(y union security, provided that the Union has been au-
thorized under the provisions of the Act) ; and if an understand-
ing is reached, we will embody such an understanding in a signed
agreement. The bargaining unit is :
All production and maintenance employees at our Green-
ville, Mississippi, plant, including firemen, but excluding
watchmen, office clericals, storeroom clerks, testers, the head
boiler operator, the fabricating leader, the warehouseman
in the fabricating and shipping department, the head' saw
filer, the quality leaders in the pressboard department, the
unloading supervisor in the yard, and all other supervisors
as defined in the Act.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Hiram Peoples, Bennie Pearson, and Paul
Johnson immediate and full reinstatement to their former or
to substantially equivalent positions , without prejudice to their
seniority or other rights and privileges , and make them whole
for any loss of pay suffered as a result of the discrimination.
UNITED STATES GYPSUM COMPANY
Employer.
By -------------------------------------
Dated ------ -------------------
(Representative) (Title)
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Mr. Andrew P. Cai ter, and Miss Itelen F. Huns phi ey, for the General Counsel.
JIr. J. B Touchstone, of Anniston, Ala, and Cllr. J B. Henna, of Jackson,
Miss., for the Union.
Macloash, Spray, Pi we & Uimdei wood, by Messrs Harold D Burgess and
Arlando Cate, of Chicago, Ill, for Respondent.
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed in this proceeding by Inter-
national Woodworkers of America. CIO, herein called the Union, the Geneial
Counsel of the National Labor Relations Board, herein called respectively the
General Counsel and the Board, issued his complaint dated April 17, 1950,
against United States Gypsum Company, Greenville, 'Mississippi, herein called
Respondent. The complaint alleged that Respondent had engaged in and was
engaging in unfait labor practices affecting commerce within the meaning of
Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge,
the amended charges, the complaint, and a notice of hearing were duly served
upon the parties
With respect to unfair labor practices the complaint alleged in substance that
from on or about August 21, 1948, and thereafter, Respondent made statements
to its employees for the purpose of discouraging collective bargaining and mem-
bership in the Union, interrogated employees concerning union membership ;
questioned employees concerning voting in a representation election ; exhorted
employees to withdraw from the Union ; threatened to close the plant if the
Union won the election, requested employees to persuade other employees to
cease union activities; discriminatorily laid off Paul Johnson, Hiram Peoples,
and Bennie Pearson, and on and after November 3, 1948, unlawfully refused to
bargain with the Union, the majority representative of Respondent's employees
in an appropriate unit
In its answer dated May 3, 1950, Respondent admitted the jurisdictional allega-
tions of the complaint, admitted that Johnson, Peoples, and Pearson were laid
off on or about the dates alleged, did not contest the allegations concerning the
appropriate unit or the Union's sometime majority in the unit, denied upon in-
formation and belief that its employees were subjected to interrogittnon or threats
in connection with union membership or activity, denied any discrimination in
regard to the layoffs, and denied any unlawful refusal to bargain
UNITED STATES GYPSUM COMPANY 125
Pursuant to notice a hearing was held before the undersigned Trial Examiner
duty designated by the Chief Trial Examiner, in Greenville, Mississippi, on May
9. 10, 11, and' 12, and in New York, New York, on May 26, 1950 All parties were
represented, participated in the healing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues At the opening of the hearing, counsel for Respondent
moved to dismiss that portion of the complaint alleging a discriminatory refusal
to reemploy Johnson and Peoples and the 8 (a) (1) allegations on the ground
that they exceeded the specifications in the charges. The motion was denied
A motion by the General Counsel made at the close of the hearing to conform the
pleadings to the proof was granted without objection. None of the parties took
avail of opportunity to- argue on the record All parties were granted to July 10
for the purpose of filing briefs A brief has been i eceived from Respondent' and
the Geneial Counsel After the close of the hearing, a motion by the General
Counsel to reopen the record to receive documentary evidence concerning the
labor market in the Greenville area vi as denied
Upon the entire record of the case and from my observation of the witnesses,'
I make the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an ollice and place of business in
Greenville, Mississippi, where it is engaged in the manufacture of insulating
board and cardboard During 1949, Respondent pun chased logs, alum, and sizing
valued in excess of $100,000. of which approximately 50 percent was shipped to
Respondent from points outside the State of lVMlississippi.
During the same period, Respondent's production exceeded $200,000 in value,
fiPpioxunately 75 percent of which was shipped to points outside the State of
Mississippi The jurisdiction of the Boaid is not contested
II THE ORGANIZA'1ION INVOLVED
International Woollwoikers of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization admitting to membership employees of
Respondent
III. THE UNFAIR LABOR PRACTICES
A. Interference , restiaoit, and coercion
B'iom 1937 until May 1948 Respondent 's employees were represented by United
Cement, Linie and Gypsum Workers, AFL In the spring of the latter year,
the Union asked recognition and thereafter filed a petition On September 17,
an election was held by the Board with the Union the only labor organization
on the ballot.
Works Manager S A Smith testified that several months prior to the election
lie told his foremen that he wanted nothing to do with a CIO union ; that the
recoils of such unions were replete with instances of violence, work stoppages,
and stiikes , that lie desired that no "outsiders " come in to disturb the existing
i A motion bi Respondent for peinussion to file a ieiily biief was denied on August 14,
1950, bi the Chict Tual Exaininei
' The testimony of James Bentley was taken by deposition in Memphis, Tennessee, on
DLU 22, 1950 1 had, of course, no opportunity to ohseive bun
Appaienth the AFT, of ganization had ceased to function
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
harmonious relation between management and employees, and that he wanted
to do all that legally was possible to persuade the employees not to select a CIO
union. Smith instructed the foremen, lie testified, that it was their responsibility
to inform the employees about the CIO, to point out benefits which Respondent
had granted, to tell employees that they could do as they chose but that no
union could secure an agreement with Respondent granting absolute seniority
preference, checkoff of dues, union shop, or arbitration.
On September 16, the day preceding the election, Smith assembled all the
employees, told them that the Union could gain no more for them than Respondent
would give, and warned that Respondent would close its plant and move its
operation before it would agree to absolute seniority, checkoff of dues, a union
shop, or arbitration.
During the preelection period, Smith spoke, he testified, to 40 or 50 individual
employees concerning the Union and in the course of these conversations asked
each his opinion of the Union.
Shift Foreman Joe Mauceli testified that he asked employees how they felt
about the Union, told them that Respondent had treated them in a fair manner,
and expressed his belief to them that the Union could not gain more for them
than they then had.
Wiley Thomas Swilled-, superintendent in the pressboard department, testified
that he told the employees that the Union had made rash promises which it
could not fulfill, recited the benefits which Respondent had granted, and asked
them to vote "No" in the election. Swilley testified that Manager Smith had
instructed him to find out the sentiment of employees toward the Union but that he
did not question employees directly in that connection.
G. M. Vaught, superintendent of the board mill, testified that he probably
asked employees how they felt about the Union both before and after the elec-
tion and recalled that he had exhibited a union application card to an employee,
F. M. Howell, bearing Howell's signature and reminded Howell that the latter
had earlier said he wanted nothing to do with the Union Vaught testified further
that he told employees that Respondent would not agree to checkoff of dues or a
maintenance of membership provision in any contract.
Superintendent S. O. Neyman testified that he talked to a number of employees,
singly and in groups, before the election, asked them why they thought that a
union was needed, suggested that he was as capable of settling their complaints
as an "outsider," and told them they were free to join the Union if they chose
but that lie pref erred that they not do so.
Neyman testified further that he questioned employee Hiram Peoples as to why
Peoples thought a union was necessary.
Shift Foreman Jack M. Gordon testified that he asked employee Paul Johnson
how the latter felt about the Union.
Foreman James S. Bentley testified that lie asked 8 or 10 employees what
they thought about the Union and if they believed that one was needed.
Employee F. M. Howell, an observer for the Union at the election, testified
.credibly and without contradiction that about 2 weeks before the election, Man-
ager Smith asked why the latter wanted a union, inquired how he was going to
-vote, and said that if the Union won there would be a strike. During the same
period, according to Howell's credited and undenied testimony, Superintendent
Vaught asked him who started the Union, said that Respondent wouldn't "do
business" with the Union, and that the plant would be closed before Respondent
would agree to seniority, arbitration, and checkoff.
As shown above, Respondent's active management force headed by Works
Manager Smith strongly opposed the selection of the Union and sought earnestly
UNITED STATES GYPSUM COMPANY 127
to persuade the employees that such a choice would not result in any gain for
them. To the extent that Respondent's electioneering was confined to an ex-
pression of its desires, appeals to reason, or noncoercive phrophecy as to the result
of organization, it is not contended, and I do not find, that any violation of the
Act occurred. However, the conversations with employees were rarely con-
ducted within such confines. Smith admitted that he asked 40 or 50 employees
how they felt about the Union ; Foreman Mauceli testified that he, also, so inter-
rogated employees, explaining that foremen were instructed to do so by Smith.
Vaught also admitted interrogating some of the employees concerning the Union
and admitted that he may have indulged in similar questioning after the elec-
tion. Superintendent Neyman conceded that before the election he asked the
employees in his department why they felt they needed a union but did not
recall asking any if they were union members or how they intended voting.
Such interrogation whether accomplished by the direct question, "Are you a
member of the Union"? or with more subtlety by inquiring of employees how they
"feel" about a union has consistently been held to violate the Act.4 I find that by
such interrogation of its employees at about the time of the election and there-
after, Respondent interfered with, restrained, and coerced them in the exercise
of their rights under Section 7 of the Act and thereby violated Section 8 (a)
(1) of the Act.
B. The refusal to bargain
1. The appropriate unit; the Union's majority
In the representation cases which resulted in the election of September 17,
the Board found all production and maintenance employees including firemen,
but excluding watchmen, office clericals, storeroom clerks, testers, the head boiler
operator, the fabricating leader, the warehouseman in the fabricating and ship-
ping department, the head saw filer, the quality leaders in the pressboard de-
partment, the unloading supervisor in the yard, and all other supervisors as
defined in the Act, to constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act. After the election
of September 17, in which a majority of the votes was cast in favor of the Union,
the Board on September 27 issued its certificate to the Union as the exclusive
representative of the employees in, the appropriate unit for purposes of collective
bargaining. Neither the propriety of the unit nor the validity of the certifica-
tion was contested in the present proceeding. I find, therefore, that the unit
described is appropriate and that at Al times material herein, after September
17, 1948, the Union had been and now is the exclusive bargaining representative
of the employees in the unit.
On October 21, the Union requested a bargaining conference and Respondent
agreed to meet on November 4. On November 3, however, J B Hanna and J. B.
Touchstone, representatives of the Union, telephoned Works Manager Smith that
they would be unable to keep the appointment. In response to Smith's invitation,
they did, however, visit with him briefly on the afternoon of the third. No
attempt to bargain was made on this occasion but Smith seized the opportunity
to advise the representatives that, as he testified, "you boys might get along
better if you didn't stick your necks out too far . . . you told our employees
that you were going to get them the type of seniority, the type of checkoff, the
type of union security, and the type of arbitration that you had in your contract
Standard-Coosa-Thatcher Company, 85 NLRB 1358.
5 79 NLRB 48
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Masonite . . we will not agree to it We will negotiate it, but we will
not agree to it "
No later date for meeting was then agreed upon although Respondent was
ready to meet at all reasonable times On December 23, Smith advised all
employees by letter :
You and I are beginning to look more closely at the quality and the cost
of the things we buy. The customers for our products are becoming more
critical.
Our foremost need here is for greatly improved quality. The need for
lower cost is also urgent These can be brought about by increased effi-
ciency. The help of each of you is necessary
In my opinion, we have the best men in the Gieenville area working at
this plant For years we have been able to pay a premium over the rates of
the area in order to get the best men
To continue favorable rates, and to recognize the excellent pei tormance
of the men at this plant (luring the past ye.ir, all hourly rates will be in-
creased 5 cents per hour, effective Monday, December 27th, 1948 This in-
crease is made without prejudice to the privilege of the Union to represent
you.
I ask your continued full cooperation.
A copy of the letter was sent to the Union.
On January 27, the patties met again The Union presented its contract de-
mands. Smith remarked that he disapproved of the clauses ielatmg to seniority,
union security, checkoff of dues, and arbitration and that, though willing to dis-
cuss such proposals, he would not agree to them
The nest meeting took place on May 27 and after a short conference was ad-
journed to June 9. These two meetings resulted in no agreement Respondent
contended that it was unable to raise wages and Smith ieitetated his objections
to the Union's proposals on seniority, union secuii_ty, checkolt, and arbitration.
On June 23, Respondent submitted its counterpi oposal in effect offering to
embody its existing rules, practices, wages, hours, and other conditions of
employment in a formal agreement but reserving to itself the tight to raise wages
if it so desired.
The proposals of both parties were discussed again in meetings on July 21 and
August 8 without agreement being leached on any matter of substance. On
October 14, Smith wrote the Union that•another labor organization claimed to
represent the employees in the unit, that doubt was thus cast upon the con-
tinued majority status of the Union, and that lie would not meet with
the Union again until the doubt was resolved. The Union never requested
another meeting and none has been held. Throughout the period following
certification Respondent has met with the Union on all occasions «lien requested
until October 14, 1949, and has expressed willingness at all times to discuss
any proposal made by the Union
The General Counsel contends that the Respondent has unlawfully refused
to bargain throughout the entire period on seniority, union security, checkoff,
and arbitration and that a further refusal is to be found in the unilateral wage
increase announced December 23, 1948, and certain layoffs made in January and
February 1949.
Respondent contends that, as to the wage increase, the Union had failed to
arrange for negotiations, that there.itas no indication when, if ever, it would do
so, that Respondent felt a wage increase was necessary in order to maintain
UNITED STATES GYPSUM COMPANY 129
its competitive position in the labor market and to preserve employee morale,
and that it could not he expected to await indefinitely upon the Union
The position taken by Respondent ignores the fact that the Union had on
Octobei 21 requested a meeting for purposes of negotiating :n: agreement. True,
no date for meeting was set and, tine, without fault of Respondent But there
is nothing in. the record from which Respondent could have inferred that the
Union had abdicated from its position as statutory representative; nothing from
which Respondent reasonably could infer that the Union was indifferent. Re-
sponclent's desire to maintain its practice of paying wages higher than other
employers in the area could have been satisfied just as expeditiously without
flouting the Union Its principal competitor had last raised wages in July,
August, or September, 1948. thus Respondent was not met with an emergent
situation for its competitive position as a wage payer hind remained static for at
least :l months Respondent should have notified the Union of its intent and
have given the Union opportunity to consent to the wage rise. None of the
reasons advanced by Respondent excuse it from its duty to deal with the statu-
tory representative of its employees on such it vital matter. The decision of
the Supicone Court in the G'oluni,biav. L'nanlclcnq case' supplies no authority for
Respondent's conduct lit that case the Cotut held merely that an employer
was under no obligation to bargain with a union absent a request that it do so.
The situation here is sh:iiply distinguishable' Respondent did not fulfill its
duty to bargain b> notifying its employees that the wage increase was given
"without prejudice" to the right of the employees to be represented in such
matters by their representative The unilateral action was itself prejudicial
to that right Finally, it is nnaiaterial that the Union made no immediate
protest in this connection. it could h:u•dl^ insist that the umaenso be cancelled
without alienating some. at least, of its followers The wage increase was a
thin:, accomplished, so the Union on February 21 filed its charge alleging that
the Respondent had thus violated the Act.
I find that by unilateially granting the wage increase of December 27, 1948,
Respondent acted in derogation of the right of the Union to bargain on such
a matter'
lit January and February. for economic ieasons. Respondent made ieductions
in its working force No inention of such intention was made at the negotiations
on January 27 and the Union was never afforded opportunity to bargain with
Respondent concerning a for nnila relating to selections for layoff The General
Counsel asserts this conduct on the part of Respondent to be further evidence of a
refusal to bargain. On January 27, the Union presented a form of contract to
Respondent including a clause requiring layoffs to be made on the basis of
departmental seniority, with the worker first hired being the last to be laid
off. This was, of course, the clearest request that the Union be consulted iii
such matters Respondent answered that it would not grant "straight senior-
ity," its characterization of the Union's proposal, and made layoffs in February
and later without further consultation with the Union
Subsequent meetings for negotiation led to no agreement Respondent's
counterproposal, submitted June 23, sought to have the Union accept responsi-
°N L. R B. v Columbian Enamelmq and Stamping Company, Inc, 306 U S 292
7 Allis-Chalmers Alanufacturing Company v N L R. B, 162 F 2d 435 C A 7)
'In its brier Respondent argues that at the time the increase was granted, the Union
had established a local at Greenville, that the local had not then complied with Section
9 (t) and (h) of the Act, and thus, that Respondent was under no obligation then to
bargain with the Union (The Piadential Life Insurance Coisp(my of Aisciiea, S1 NLRB
275) Tine, steps had been taken in Decenibei to form such a local but no chaitei was
issued until Febiuarv 1949 I find no merit in this aigunient
953841-52-i of 94-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bihty for all strikes in the plant whether or not authorized. Throughout the
meetings , Respondent consistently adhered to its first announced position that
it never would agree to "straight seniority," union shop, checkoff, or arbitration
Smith testified that he, personally, was opposed to granting such benefits but that,
as works manager, he had complete authority to enter into any agreement with
the Union which he might consider provident. Other evidence, however, tends
to cast doubt upon the extent of Smith's real authority. A booklet, "Your Work
and Your Company," published by Respondent and distributed to all employees,
must have had an inhibitory effect In pertinent part the booklet reads :
SENIORITY
The Company retains the exclusive right to determine and select those
best qualified to occupy the various positions in a plant. Such qualifications
as performance, skill, general fitness, and length of service are considered
in making these selections.
FREEDOM OF ACTION
An employee has the right to join, to refuse to join, or to resign from any
union. These rights of the employees are respected by the Company and he
is assured that membership, or non-membership in a union will not affect
his relations with the Company. The Company does not agree to any form
of closed shop.
CHECK OFF
The payment of union dues is solely an employees decision and concerns
only himself and the union. The Company will not check off union dues.
ARBITRATION
The arbitration of labor disputes is an improper means for making de-
cisions in matters which affect the Company. The third party who, as
arbitrator, makes such decisions, obviously has no responsibility in Manage-
iment. Decisions affecting the Company are solely Management's respon-
,ibility, and, therefore, cannot be delegated to a third party.
Respondent, rather clearly, has adopted a policy of not agreeing to seniority
(except as set forth above), union security, checkoff, and arbitration. It is
true, of course, that an employer is under no compulsion to accede to the demands
of a union in these matters. It is equally true, however, that unions and em-
ployers very frequently incorporate one or more of them in collective bargaining
agreements, and it follows that a fixed determination not to agree on such matters,
except on the employer's terms, is to remove them from the field of bargaining.
Smith's testimony that he was always willing to listen to argument and to enter
into discussion on the four points does not in the slightest degree establish that
he was willing to bargain on them. His own testimony is a memorial to the con-
trary. "We will discuss but we will never agree."
When it is considered that on the day preceding the election Smith told the
employees that the plant would close before Respondent would agree to "straight
seniority," arbitration, union shop, or checkoff, that Respondent's inflexible
position in these matters was reiterated time after time to the union negotiators,
that the manual distributed to the employees expressed the same determination,
the conclusion is justified that on such matters Respondent's mind was closed,
that, as Smith testified, "We will negotiate it. but we will not agree to it." These
expressions reveal a fixed determination not to bargain under any circumstances
UNITED STATES GYPSUM COMPANY $ 131
on such subjects, and a purpose to preclude agreement by maintaining a posi-
tion inconsistent with the bargaining rights of the Union. There can be little
doubt that seniority and union security, affecting as they do, or may, "rates of
pay, wages, hours of employment, or other conditions of employment" are matters
upon which an employer is required to bargain. So, too, as to arbitration. Just
as an employer must bargain with the representative of his employees on
grievances so must he about a method of resolving them. Arbitration is one
way in which this may be done. The Board has found (Hughes Tool Company,
56 NLRB 981) that an agreement to check off dues for a minority union invades
the province of bargaining reserved for the majority representative. The Court
of Appeals for the Fifth Circuit had this to say, however, when that case was
presented to it :
The collection of dues by a union from its, members is not in its nature a
matter for collective bargaining, which by the Act is limited to agreeing with
the employer on rates of pay, wages, hours of employment, and other condi-
tions of employment, together with adjusting grievances between employees
and the employer. . . . As a matter of convenience to employees and
unions this Company has for a long time agreed to deduct from wages and
pay to the unions the dues of their several members who in writing request
it. No law commands this, and if impartially done and not as favoring or
assisting any union no law forbids it.
I have found no subsequent Board decision upon this precise point so, although
aware that the question of checkoff is one frequently and almost traditionally
the subject of bargaining between unions and employers, I do not find that it is
a matter about which an employer is commanded by the Act to bargain.
Bargaining of course means more than meeting when requested and discussing
any subject about which agreement is sought. The theory of the Act in this
aspect is that negotiators imbued with a spirit of good faith and with minds
open to conviction will reach agreement. But this was not the situation in
Greenville. Smith's statement that he was willing to negotiate did not mean that
he could be persuaded to retreat from his announced position, as the Union's
experience in the meetings with him clearly shows. Respondent, through Smith,
had taken an adamantine position. Its representative was willing to talk but
not to agree.
As has been said, Respondent's position on the union shop removed it from the
area of bargaining and the Union and its principals were told in effect that they
could not even aspire to attain any form of union security. It is thus of no
moment that the Union had not obtained authority under Section 9 (e) of the
Act to contract in that respect Respondent's statements were sweeping and
clearly were intended to mean that no such provision would be considered even
were the Union to qualify itself.
From February 7 to early April 1949, Respondent refused to meet with repre-
sentatives of the Union for the stated reason that during this period the Union
had formed a local at Greenville and that the local had not for that term
complied with the provisions of Sections 9 (f) and (h) of the Act. The General
Counsel expressly disclaimed any contention of an unlawful refusal to bargain
during this period. None is found.
I find that Respondent by the unilateral wage increase of December 27, by
failing to bargain with the Union on a formula for layoff, and by adhering
rigidly to a policy of refusing to recede from its position on seniority, union
security, and arbitration, refused to bargain with the Union in violation of
' Hughes Tool Conipaiii/ v N. L R B, 147 F. 2d 69 , 74 (C A. 5).
0
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (5) of the Act and that by such conduct Respondent interfered
with, restrained, and coerced its employees in the exercise of their rights under
Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act10
As the Respondent has failed to bargain with the Union, the fact that it
received a rival claiin for recognition in October 1949 does not now absolve it
from that duty. The Union. by the conduct of Respondent, has not been afforded
opportunity to bargain for the employees, an opportunity guaranteed it by the
Board's certificate.
C. The layoffs; the refusals to iemstate
Hiram Peoples was first employed by Respondent in September 1946 He
worked at a number of odd jobs around the plant but for the last year of his
employment operated a cut-off saw in the fabricating department Sometime
before the September election Peoples joined the Union and in December when
the Union was in the process of forming a local, he was elected to temporary
office as financial secretary.
On February 5, 1949, Peoples along with a number of others in the fabilcating
department was laid oft. About 2 weeks before this event, according to Peoples,
his superintendent, Neyman, approached him at work and, after saying that he
knew Peoples had joined the Union. asked what Peoples thought that the Union
would do for him, and if Peoples thought that he could weather a strike Neyman
then told Peoples to come to the former's office that afternoon and, when Peoples
(lid so, the inquiry continued Neyinan asked Peoples to iecall what had hap-
pened to the people during the flood," and warned that if Peoples continued in
the Union the same thing might happen to him
On February 5, Peoples was informed by Foreman Youngberg that lack of work
made his layoff necessary but that Peoples would be notified when business
improved. Peoples was never recalled to work
Superintendent Neyman testified that lie talked to Peoples concerning the
Union before the election but said that he could not recall doing so in January
1949, as Peoples testified. and could not recall mentioning anything to Peoples
about the flood Neyman testified that lie did call Peoples to his office on the
last day that Peoples worked and that lie might then have asked if the latter
could weather a strike. Neyman admitted that be knew Peoples to be a union
member and that on the day of the layoff, he offered to give Peoples a recommen-
dation as a dependable worker Foreman Youngberg admitted that he knew
that Peoples was an officer of the Union Local.
Peoples is a small man, about v' li'' iii height and weighs about 12:i pounds
Respondent asserts that his physique was a consideration leading to,
his inclusion in the layoff. Nc^ nianl conceded that Peoples was an efficient
and satisfactory eniplo3ee in the operation of the cut-otl saw but asserted that
with the drop an production, these was no full-tune einplo^uient in that work
Shift Foreman Garrett testified that lie tried Peoples on a number of jobs an
the fabricating department, that Peoples performed satisfactorily only on the
cut-off saw, that he was not suited for work requiring skill or precision, and
that he was not tall enough to stack products Foreman Youngberg testified
Mat Peoples was so slow in feeding the planking machine that the production
of woikers who depended upon the machine's output was lessened According
to Youngberg, the least capable and versatile workers were selected for layoff,
Peoples among theiu.
Al0L R B v 7'ocei Ifo sictil Mills, 180 F 2d 701 (C .A 4, Much 0, 1900
" A Bibl ical allusion
0
UNITED STATES GYPSUM COMPANY 133
The evidence amply supports Respondent's claim that the layoffs in early
1949 were occasioned by a drop in sales which was reflected in a lessening of
production I believe, too, that the evidence establishes that Peoples, if for
no other reason than his small stature, was of less value to Respondent in a
period when employees might he shifted to several jobs during a day than others
more robust The evidence convinces, hove ever, that this deficiency was exag-
gerated in the testimony of Garrett and Youngberg; that Peoples was good
enough to work on a variety of jobs for more than a year before being assigned
to wook regularly on the cut-off saw; and that what little criticism was directed
toward his work was more in the native of instruction than complaint. Peoples
was senior in point of duration of employment to many who were retained and
the General Counsel points to this circumstance claiming to find in it an indicia
of discrimination Not without some doubt do I find that the evidence by
its preponderance fails to establish this claim There was a valid reason to
make layoffs in the fabricating crew, Peoples was under disability because of
his physique when consideration was given to which employees best could be
spared
In May or June 1949, business having improved, another was hired to operate
the cut-oil saw Peoples was not recalled Respondent explained that in 1919
the labor market in Greenville was so eased that it could select from a much
larger and better qualified group of applicants than before; that consideration
of Peoples' physical stature and assented lack of versatility militated against
his re all Peoples had operated the saw satisfactorily for a year before his
layoff and I do not believe that he was as inept as Respondent asserts. There
is no cuigestion that the work assigned to Peoples or work which he reasonably
night have been expected to perfoi nu requui ed the possession of any particular
skill of pecul ai aptitude I credit Peoples' testimony to the effect that he
worked on a variety of other jobs without serious criticism I believe that he
was. upon considerations of experience and pioved capacity, a desirable em-
ployee on the cut-oft saw It is difficult to understand Respondent's failure to
recall hlnn when a full-time saw operator was needed There is credible evi-
dence however winch I consider offers an explanation Peoples was a tempos ary
,officer of the Union, an organization which Respondent had sincerely hoped never
would he chosen to represent its employees, and with which Respondent has
refused to bargain Ne>n ian had, I find, warned Peoples that adherence to
the Union would subject Will to the hazards of the "flood," a not too subtly
veiled threat to his continued employment The inner e circumstance of calling
Peoples to his office either on the last day of employment, as Neynian testified,
or 2 weeks before, when Peoples put it, suggests the necessity for explanation.
Peoples said he was then questioned about the Union and warned about the
flood Heyman said he recalled nothing about the Union or the flood but ad-
nutted that there may have been some talk about a strike. It does seem some-
what extraordinary that a department superintendent would call in a simple
employee such as Peoples for interview when, according to Foremen Garrett
and Youngberg, Peoples had already demonstrated such clumsiness, ineptitude,
and lack of versatility as to warrant continued employment only in a situation
where competent workers were most dilfteult to secure
I find that Respondent's explanation of its failure to recall Peoples does not
meet the evidence tending to establish that this failure was motivated by Re-
spondent's objections to his membership in and activity in behalf of the Union."
By failing to recall him, Respondent discouraged membership in the Union by
1111 l II ^11awifacturing Company, Inc, 87 NLRB 1373
I
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating against Peoples in regard to his hire and tenure of employment,
and thereby violated Section 8 (a) (3) of the Act. By such discrimination and
by interrogating and threatening Peoples in respect to his membership in and
adherence to the Union, Respondent interfered with, restrained, and coerced
Peoples in the exercise of his rights under Section 7 of the Act and thereby
violated Section 8 (a) (1) of the Act.
Bennie Pearson started his employment for Respondent in June 1943 and
continued until laid off on February 5, 1949. Pearson joined the Union some-
time after the representation election. Pearson testified that 2 days before the
election his superintendent, Clarence Shepherd, Jr, asked what Pearson thought
about the Union and if he believed that the Union would gain for the employees
what it promised. Pearson replied that he did not know and Shepherd went on,
"Well I will tell you, no. The Union is just a bunch of crap. If you want a
job and want to continue work here, you better work against the Union."
In early January 1949, still according to Pearson, Superintendent Vaught
called Pearson to his office, asked the latter how long he had been working in
the plant, inquired what the Union ever had done for him and asserted that,
just as Pearson would not permit a stranger to enter and rule his household,
the Respondent would close its plant rather than submit to the rule of a Union.
Vaught continued, Pearson testified, to say that there would be a layoff, that
Pearson had been active securing members for the Union, and that Pearson's
name would lead the layoff list.
Perhaps a week later, according to Pearson, Shepherd referred to him as a
"union man" and Foreman Bentley warned that Pearson was reputed to be
urging employees to join the Union, and that Pearson would be laid off. On
February 5 Pearson was laid off and was told, he testified, by Foreman Mauceli
that the layoff would probably last 30 days, perhaps less ; that when business
inipioved Pearson would be recalled.
Pearson was not recalled In May 1949 he applied to Respondent for work and
was told that he would be notified when Respondent resumed hiring.
Respondent's principal reason advanced at the hearing for laying off Pearson
and failing to recall him was stated to be his habit of tardiness. Foreman
Mauceli testified that he spoke to Pearson perhaps as many as 12 times during
latter's employment about coming in late for work but could not recall how
close in point of time to the layoff lie gave the last reprimand. A fellow em-
ployee, Isac Carter, testified that Pearson was late for work most of the time.
W. T. Hendrix, gate watchman, testified that he never saw Pearson enter the
plant after the starting hour but that Pearson sometimes left the clock house
15 minutes late to go to his job. Superintendent Vaught testified that Mauceli
remarked to him about Pearson's habit of tardiness and that he, Vaught, warned
Pearson that if he persisted in such habits, he would be laid off. Superin-
tendent Shepherd testified that Pearson was seldom on time for work and that
he reprimanded Pearson about this delinquency on 5 or 6 occasions. Shepherd
admitted that Mauceli last remarked to him about Pearson's tardiness sometime
in July 1948. Foreman Bentley also testified that Pearson was frequently late
for work.
Pearson admitted that he frequently failed to get to work on time and ex-
plained that this was due to the illness of his wife. Pearson also admitted that
in December 1948 or- January 1949, Foreman Mauceli threatened to discharge
him because of tardiness. Such evidence and admissions amply prove that
Pearson was frequently tardy and that he was reprimanded and warned about
his habit in that respect on several occasions. I so find. The question still for
determination is, however, was he laid off on February 5 and not recalled for
that reason.
UNITED STATES GYPSUM COMPANY 135
Pearson's testimony tends to prove that another consideration, and an unlaw-
ful one, motivated Respondent in selecting him for layoff. First there is the
threat made by Superintendent Shepherd shortly before the election 18 that if
Pearson wanted to continue working he had best work against the Union.
Shepherd denied making such a statement although he admitted speaking to
15 or 20 employees about the Union in an attempt to persuade them to reject
it at the polls.
Shepherd also denied Pearson's testimony that in January 194914 he referred
to Pearson as a "union man." Foreman Bentley denied that he accused Pearson
of trying to secure members for the Union or that he warned Pearson of a
consequential layoff. Superintendent Vaught testified that he probably talked
to Pearson about the Union before the election, asking Pearson how he felt about
the Union and telling him that he was free to join or not as he chose , but denied
that he had done so subsequent t9 that event. Vaught denied further that he
had ever called Pearson to his office to talk, that he charged Pearson with getting
employees to join the Union, or that he threatened Pearson in any respect con-
cerning union activity. Vaught did recall, however, that Foreman Mauceli had
complained about Pearson's tardiness and that he, Vaught, had told Pearson
that the latter would be laid off if his habits and the quality of his work did
not improve Vaught was unable to place this warning in point of time to
Pearson's layoff or to recall when Mauceli last had complained about Pearson.
Mauceli, Isac Carter, Shepherd, and Vaught testified that Pearson's work was
unsatisfactory in that he often let his grinder run empty and that he was not
dependable.
Pearson's demeanor as a witness impressed me favorably. The statements he
attributed to Vaught, Shepherd, and Bentley, viewed against the background of
Respondents' hostility toward the Union, are certainly not incredible and, in
my opinion, were in part of such character as to be beyond Pearson's probable
powers of contrivance. Pearson was unshaken on cross-examination and fur-
ther evidenced truthfulness in admitting his proclivity to tardiness. On this
point the testimony of Respondents' witnesses was generalized and exaggerated.
Of course, I do not believe that Pearson was tardy "most" of the time or that his
tardiness created a serious problem in production. If that were true, I believe
that he would have been discharged long before he was laid off. Further, at
the time of layoff no mention was made of his delinquencies ; on the contrary I
find that Mauceli then encouraged him to believe that he would be recalled to
work, perhaps within 30 days. I credit the testimony of Pearson as to his con-
versations with Vaught, Shepherd, Bentley, and Mauceli.
Having found that Pearson was warned of and threatened with layoff if lie
persisted in union activity, having considered that Pearson was an employee of
more than 5 years' service at the time of his layoff and that he alone in the grinder
room group has not been recalled to work, I conclude and find that Pearson was
laid off and, in effect, discharged on February 5, 1949, because of his membership
in and activity on behalf of the Union, that Respondent thus discouraged member-
ship in and activity in behalf of the Union and thereby violated Section 8 (a)
(3) of the Act. By the layoff of Pearson and by interrogating and threatening
"Pearson said this occurred 2 days before the election As Shepherd was absent from
the -Greenville plant from September 12 to about September 26, any conversation with
Shepherd preceding the election could not have taken place later than September 11. I
find that it happened on or about September 11.
14 In Its brief Respondent mistakenly asserts that Pearson could have had no conversation
with Shepherd after September 11 ; that after that date Shepherd was no longer at the
Greenville plant. Shepherd testified, however, that he left the Greenville plant September
12 for a period of about 2 weeks and then returned to remain until sometime in early 1949.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him concerning the Union, Respondent interfered with, restrained, and coerced
him in the exercise of his rights under Section 7 of the Act and thereby violated
Section 8 (a) (1) of the Act
Paul Johnson first began ,voi 1: for Respondent in 1937, quit, returned, was dis-
charged in 1946 for failing to report an injury and was last rehired March 1, 1948
Less than a year later, on February 23, 1949, he was laid off
About 2 weeks before the election, according to Johnson, Superintendent Swil-
ley asked if he intended joining the Union, Ntiarning that the Union would close
the plant. Johnson replied that he had no such thought. In January 1949,
still according to Johnson, Swilley accused hum of being a leader in the union
movement. Johnson denied that this was so Johnson was told at the time of
layoff that he would be recalled He has not been recalled.
Superintendent •Swilley testified that Johnson wi as not a satisfactory employee
in that he talked too much and wandered off the job Swilley denied that he
accused Johnson of being a leader in the Union and testified that he thought
Johnson opposed it.
Foreman Lamon testified that Johnson was not a satisfactory worker in that
his talking interrupted the work of others and in that Johnson frequently left his
work in order to smoke. Lanion testified that he selected Johnson to be one of
those laid off and believed at that time that Johnson was opposed to the Union.
Employees Joseph Brown and Ed Jones testified that Johnson was not a good
worker Brown testified that lie had worked with Johnson, that the latter would
stop work and later catch up, but that Johnson didn't sinoke much.
Foreman Jack Gordon testified that Johnson was an "average worker" but that
he lost much time for himself and others through talking Gordon admitted that
lie asked Johnson how the latter felt about the Union and assented that Johnson
said lie didn't like it. Gordon testified that lie selected the least versatile and
most recently hired workers for layoff, Johnson among them
I have no doubt that Respondent knew when Johnson was laid off that lie
was active in the Union and that lie led prayers at union meetings. Superin-
tendent Vaught admitted that happenings in the Union were brinted about the
plant and came to the attention of management. I am also convinced that John-
son testified truthfully about Swilley's questioning concerning Johnson's union
activity. I believe, however, that Gordon did not select Johnson for layoff upon
any consideration of union activity or membership The layoff did affect a
substantial number of employees. The recently rehired Johnson was a logical
choice I find no discrimination in the layoff of Johnson.
I believe, however, that a different conclusion must be leached in retard to
Respondent's failure to recall him I find that Johnson was, as his foreman,
Gordon, testified, an -average worker," over a per iod of 12 years lie was satisfac-
tory enough to be rehn ed three or four tines by Respondent, and Swilley told
him at the time of layoff that he would be recalled when jobs opened. No con-
vincing reason has been advanced by Respondent for its failure to do so. Testi-
mony by Smith and others that Respondent was able to secure superior workers
in 1949 after the layoff in comparison with those available during the several
years before that time is entirely subjective and unsupported by any statistical
data tending to show the condition of the labor market in Greenville. Johnson
appears to be an able-bodied, intelligent person with no apparent disability
unless loquaciousness be one and, as Johnson admitted, he has always talked
profusely. This characteristic did not prevent him in the past from being hired
by Respondent and, absent his interest in the Union, I do not believe that it
would now.
I find that Respondent failed to recall Johnson to work after the layoff because
of his actual or supposed leadership and activity in the Union and that by such
UNITED STATES GYPSUM COMPANY 137
discrimination Respondent discouraged membership in the Union in violation of
Section 8 (a) (3) of the Act. By discriminating against Johnson, and by inter-
rogating him concerning the Union, Respondent interfered with, restrained, and
coerced him in the exercise of his rights under Section 7 of the Act and thereby
violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF .THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce
V. THE RE\CEDY
Having found that Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist theiefrom and take certain affirmative
action which I find will effectuate the policies of the Act
Having found that Respondent has refused unlawfully to bargain with the
Union, it will be recommended that Respondent cease and desist from such re-
fusal and, upon request, bargain with the Union in respect to wages, hours, teems
and conditions of employment including such matters as arbitration, seniority,
and, if the Union is authorized by means of an appropriate election, union
security.
Having found that Respondent has discriminated in regard to the hire and
tenure of employment of Hiram Peoples, Ilennie Pearson, and Paul Johnson,
it will be recommended that Respondent offer to each immediate and full rear
statement to his former or substantially equivalent position'' and make each
whole for any loss of pay he may have suftered as a result of Respondent's dis-
crimination against him by payment to each of a suns of money equal to that
which he would have earned as wages trom the date of discriminationY6 to
the date of offer of reinstatement. Loss of pay shall be computed on the basis
of each separate calendar quarter or portion thereof during the period from
Respondent's discriminatory action to the data of a proper offer of ieinstatement.
The quarterly periods, herein called quarters, shall begin with the first day of
Januhry, April, July, and October. Loss of pap shall be determined by deducting
from a stun equal to that which each would normally have earned for each such
quarter or poition thereof, his net earnings," if any, in other employment (luring
that period Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quartert In accordance with the lVoolnoosth
decision, it will be recommended that Respondent, upon reasonable request, make
available to the Board and its agents all records pertinent to an analysis of the
amounts due as back pay
The unfair labor practices found including those concerned with threats and
interrogation, reveal on the part of Respondent such a fundamental antipathy
to the objectives of the Act as to justify an inference that the commission of
other unfair labor practices may be anticipated The preventive purposes of
"The Chase National Bank of the City of New Yorl, San Juan, Puerto Rico, Branch,
65 NLRB 827
"In the case 'of Bennie Pearson from February 5. 1940 . in the case of Peoples and
Johnson, from that somewhat uncertain date or dates in the spring or summer of 1949,
where, absent discrimination, they would have been recalled.
Crossett Lumber Company, 8 NLRB 440, 497-8
to F W. Woolworth Company, 90 NLRB 289
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act may be frustrated unless -Respondent is required to take some affirma-
tive action to dispel the threat. It will be recommended, therefore, that Re-
spondent cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed by the Act.
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. International Woodworkers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at Respondent's Greenville
plant, including firemen but excluding watchmen, office -clericals, storeroom
clerks, testers, the head boiler operator, the fabricating leader, the warehouse-
man in the fabricating and shipping department, the head saw filer, the quality
leaders in the pressboard department, the unloading supervisor in the yard,
and all other supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. International Woodworkers of America, CIO, was on September 27, 1948,
and at all times since has been, the exclusive representative of all the employees
in the appropriate unit for purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on November 3 and December 23, 1948, and on various dates
thereafter including October 14, 1949, to bargain with International Wood-
workers of America, CIO, as the exclusive representative of the employees in
the appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of
Hiram Peoples, Bennie Pearson, and Paul Johnson, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
6. By such refusal to bargain and such discrimination and by interfering with,
restraining, and coercing 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
ALBERT A. SHAMES , D/B/A ALDEN ENGINEERING COMPANY and LODGE
264: OF DISTRICT 38, OF THE INTERNATIONAL ASSOCIATION OF
MACHINISTS .' Case No. 1-RC' 1972. May 1, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert S. Fuchs, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 The Petitioner' s name appears as amended at the hearing.
94 NLRB No. 38.