Alterman Transport Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1970

183 N.L.R.B. 18 (N.L.R.B. 1970)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alterman Transport Lines , Inc. and Truck Drivers,
Warehousemen and Helpers Local Union No. 512,
an affiliate of International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America , Petitioner . Case 12-RC-3247
June 4, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, BROWN , AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Robert L.
Westheimer . Following the hearing , this case was
transferred to the National Labor Relations Board
in Washington , D.C., pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure , Series 8,
as amended. Thereafter, the Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.'
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of:
All city or local drivers, dockmen, yardmen,
hostlers and regular part-time dockmen at
Jacksonville, Florida, but excluding all other
employees, office clerical employees, guards
and supervisors as defined in the Act.2
The Petitioner contends that a unit limited to the
Employer 's Jacksonville terminal is appropriate.
The Employer contends that a statewide unit of all
its Florida terminals , including all classifications of
drivers, dockworkers, plant clericals, washrack em-
ployees, steam men, hostlers, and yardmen located
at the Pensacola, Tallahassee, Jacksonville, Orlan-
do, Tampa, and Miami terminals is appropriate. In
the alternative, the Employer contends that the
smallest bargaining unit which could conceivably
be found appropriate would be a terminalwide
Jacksonville unit including all of the aforemen-
tioned employees. The Employer would also in-
clude the 0 S & D clerk,3 the billing and rate clerk,
office clerk, washrack employees, and cashier.
There is no history of collective bargaining at the
Jacksonville terminal.
The Employer is a Florida corporation engaged
in the business of motor truck transport of perish-
i The Employer filed an answer to the petition , a motion to dismiss, and a
motion to quash hearing and/or notice of hearing at the start of the hearing
The Hearing Officer referred the motions to the Regional Director
Although there are some minor differences in the language of the motions,
for the most part they assert matter that was before the Board in the prior
consolidated proceeding (178 NLRB 122) In its answer the Employer set
forth several defenses , including its asserted lack of knowledge or informa-
tion as to certain allegations in the petition , that the Board has failed to in-
vestigate the petition , that the Board does not have reasonable cause to be-
lieve that a question concerning representation exists, and that the Em-
ployer has never received any demand for recognition orally or in writing
from the Petitioner As the Board's Rules and Regulations do not contem-
plate answers to petitions , we deem it unnecessary to consider the Em-
ployer's asserted defenses to the petition Moreover , it is well established
that a representation proceeding is not an adversary proceeding The mo-
tion to dismiss is based on grounds that the Employer was denied due
process of law, that the Board has failed to comply with Sec 9 ( c)( I) of the
Act, that the Board has no authority under Sec 3(b) of the Act to delegate
to the Regional Director the power to determine whether the Employer is
subject to the jurisdiction of the Act , that the Employer was denied due
process of law by the Board 's unlawful delegation of its powers to decide
representation cases under Sec 9 of the Act, and that the Board failed to
comply with the requirements of the Administrative Procedure Act The
motion to quash hearing and/or notice of hearing repeated many of the as-
sertions set forth in the answer and in the motion to dismiss and in addition
asserted that the Hearing Officer is not qualified under the Administrative
Procedure Act The Board has often been confronted with the question of
whether its authority under Sec 9 was properly delegated and it has con-
sistently rejected contentions to the contrary.
As in the prior consolidated proceeding , the Employer contends that the
petition herein is fatally defective because of failure to comply with Sec
9(c)( I) of the Act, in that the Petitioner failed to allege that it made a
request for recognition and that the Employer declined , and that the peti-
tion was filed without giving the Employer an opportunity to recognize the
Petitioner voluntarily In rejecting the Employer 's contention , we note that
the first petition and the amended petition indicate that a recognition
request was made on February 10, 1969 , and the Employer did not reply
Moreover, the Petitioner repeated its request for recognition at the hearing
but the Employer declined The Board has often held that the filing of a
representation petition in itself constitutes a sufficient demand for recogni-
tion
The Petitioner requested that the entire transcript of the consolidated
proceeding (178 NLRB 122) be considered herein The Employer ob-
jected to the introduction of any part of the prior transcript that did not re-
late to the Jacksonville terminal . It asserts that it is not admissible by judi-
cial notice , there was no showing of relevancy , and the terminal at Jackson-
ville is different from the terminals in the consolidated cases Under the cir-
cumstances herein , we find that the Hearing Officer did not commit preju-
dicial error by admitting the entire transcript from the prior consolidated
proceeding for whatever relevance such transcript may have to this
proceeding In addition , we find that the Employer throughout this
proceeding attempts to distinguish the Jacksonville terminal from the ter-
minals involved in the consolidated proceeding Such comparison, it would
appear, would necessitate perusal of some, if not all, of the transcnpt in
the prior consolidated proceeding.
' The petition was amended on September 12, 1969, to conform to the
Board 's unit findings involving the Employer 's Miami, Tampa , and Orlando
terminals in Alterman Transport Lines, Inc , 178 NLRB 122, wherein the
Board included all hourly paid drivers and checkers in the unit
' Overages, shortages , and damages clerk
183 NLRB No. 2
ALTERMAN TRANSPORT LINES, INC.
able products , having its principal office and place of
business at Miami, Florida . It operates terminals in
several cities, some of which are located inside the
State of Florida and some outside . Since its incor-
poration in 1954 , the Employer has been granted
various operating authority by the Florida Public
Service Commission and the Interstate Commerce
Commission to expand these operations. In the
summer of 1968, the Florida Public Service Com-
mission authorized the Employer to transport
general commodity freight in the southern peninsu-
la of Florida between Cape Kennedy, Tampa, Or-
lando, and Jacksonville.
Miami is the nerve center of the Employer's
operation , as that is where management and central
dispatch are located . Central dispatch and the
general offices are separate from the terminal of
Miami . This focal point is complemented by con-
nected operations at satellite terminals located at
Tampa, Orlando , Jacksonville , Tallahassee, Pen-
sacola, and Miami. All terminals are equipped with
teletype and are connected to each other and to
central dispatch with respect to freight movements
and personnel.
It is the Employer 's contention that central
dispatch is the directing force for all Florida opera-
tions on a day-to-day functional basis and that this
is mandatory in light of the governmental regula-
tions imposed , the commodities transported, and
the special requirements of customers . Central
dispatch is aware of the total picture and must
coordinate freight movements between the various
Florida terminals to promote efficiency and comply
with relevant regulations.
Freight is moved in the Employer 's trucks on the
basis of truckload shipments, hereinafter called TL,
so designated because of the rate charged and the
applicable commodity weight , and on the basis of
less than truckload shipments , hereinafter called
LTL. A TL shipment does not mean that the trailer
is filled to capacity , in fact TL and LTL loads may
be combined on the same trailer . When both ship-
ments are picked up at the same place , the truck
will return to the terminal to have the LTL pulled
off for transport by another vehicle and proceed
with the delivery of the TL. However , if both the
TL and LTL commodities are destined for the same
general area , the terminal is bypassed and the
delivery made . A driver may come into a terminal
carrying a TL load, pickup LTL commodities, and
deliver both loads if the goods are destined for the
same consignee or for the same general area
although not the same consignee.
Trucks with LTL loads only must always report
to the terminals where freight is to be delivered. In
contrast to combination loads, there is no pickup
19
and delivery in which the terminal may be
bypassed. Only the terminal designated as the final
destination of the vehicle will be considered in re-
gard to what freight will be pulled off and addi-
tional freight loaded.
When freight is returned to the terminal and
dropped, delivery may be made by an hourly driver.
Products picked up locally but destined for another
terminal are returned to the terminal where the
shipments are transferred at the dock to a vehicle
destined for delivery at the other terminal location.
The Employer is also engaged in the transporta-
tion of perishable freight to and from air terminals.
Trucks must be present when the airplanes arrive
since the cargo planes are not equipped with
refrigeration facilities . The Employer asserts that
the nature of the air terminal operations requires
that all available drivers, regardless of classifica-
tion, are used to expedite the freight and that this
requires coordination between terminals and per-
sonnel that only central dispatch can implement.
Freight is also moved on the Employer 's trucks to
and from incoming ships on a regular basis. Tampa
participates in 1 to 3 ships per week involving 18 to
20 trailers per ship. Orlando participates at the rate
of 15 to 18 trailers per shipment. Miami engages 30
to 35 trailers at a time in ship operations . Jackson-
ville participates in one to seven movements per
week including one to three per movement. Ships
are equipped with refrigeration units and , there-
fore, the commodities they carry are not as vulnera-
ble as those transported by air. The Employer con-
tends that drivers and equipment must be on hand
to begin loading or unloading commodities when a
ship arrives at the pier, and this requires control by
central dispatch implemented by successful interac-
tion between the terminals involved.
The Employer asserts that an immediate step-up
of transportation requirements, over which it has
no control, with respect to pickup and delivery
requiring the dispatch of all available trucks and
drivers, regardless of location or classification, is
necessary when advance notice is given of a com-
modity price increase and during the citrus industry
season . In addition , the Employer contends that it
must meet the needs of certain customers who
require special pickup and delivery service and that
all of the Employer's Florida terminals have peak
business days each week. In Miami, the peak day is
Monday. The peak days in Tampa are Sunday,
Monday, and Friday. Orlando has its peak days
Saturday, Sunday, Monday, and Friday. Thursday
and Friday are peak days in Jacksonville.
One form of trucking operation engaged in by
the Employer is called the relay operation in which
two or more trucks coming from separate terminals
427-258 O-LT - 74 - 3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meet at some predetermined point. There are basi-
cally two types, i.e., "slip seat ," involving the
exchange of vehicles by the drivers, and "trailer
change, " necessitating the exchange of trailers by
the drivers. The "slip seat" method is used when it
is necessary to send a vehicle from 2ny terminal to
Miami for maintenance . The "trailer change"
method is employed when freight movement is not
combined with vehicular service requirements. The
Employer contends that drivers in all classifications
participate in the relay operation.
The Employer's freight is also moved in what is
described as a piggyback operation, whereby
trailers are loaded on railroad cars for various
destinations . This operation is only used to expedite
freight movement when drivers and equipment are
already committed to other assignments.
Another form of freight delivery is described as a
"peddle-run" in which freight is delivered to vari-
ous customers from the same trailer and involves
drop shipments of commodities at several locations.
The Employer asserts that all drivers are utilized for
this operation and that drivers are dispatched to
various terminals to engage in such runs.
A new method of freight transport employed by
the Employer is described as a "double-bottom"
operation. It consists of one tractor hauling two
trailers. Drivers engaged in such operation must
have at least a 5-year accident-free record. The
Employer contends that regulations pertaining to
this operation present problems with respect to
available drivers, and that drivers come from all
classifications. The only highway in Florida at
present that permits double-bottom operations is
the Sunshine State Parkway which runs from Orlan-
do to the south.
As noted above, the Employer was granted
general commodities authority in Florida, and it is
now the only trucking company in Florida that
transports both nonperishable and perishable com-
modities in mixed shipments. Prior to the new grant
of authority, 98 percent of the Employer's Florida
business involved the transport of perishables. The
Employer asserts that it anticipates a step-up in
general commodity transporting, that an increase in
the utilization of drivers of all classifications has
been the result, and that all drivers are making
more trips to other terminals than ever before.
Each terminal contains an office building, a
building to protect foods awaiting shipment, a dock
area, and a vehicle parking area. There is a ter-
minal manager, an assistant terminal manager 4 and
one or more dispatchers at each terminal . All ter-
minals are geared for light repair work. Only the
4 At the time of the hearing, the assistant terminal manager position at
Jacksonville was not filled.
Miami terminal is equipped for heavy repair work.
All terminals are equipped with various types of
material handling equipment such as float jacks,
pallets, pallet jacks, handtrucks, and barrel trucks
to facilitate the handling of cargo. Each terminal is
equipped with trailer dividers for use on small ship-
ment operations to provide separate temperature
areas within the trailer, making possible the trans-
portation of frozen and nonfrozen items on the
same vehicles.
The terminal manager's duties are to supervise
the terminal and employees within the terminal
area; direct such employees as to their duties and
work assignments; assemble and transmit cargo
movement information to central dispatch and
other Florida terminals to promote prompt and effi-
cient cargo movements; handle customer relations
in his terminal area as directed by the Miami
general office; and inspect equipment to insure safe
operations. The Employer contends that the ter-
minal manager is a conduit for the implementation
of policies and directives formulated by manage-
ment in Miami; that the authority of Florida ter-
minal managers is greatly restricted; and that they
are limited to $25 purchases and the handling of
minor damage claims.
Driver classifications in the Employer's system
are as follows:
1. Hourly paid drivers
2. Hourly paid drivers B
3. Hourly paid drivers B plus
4. Hourly paid drivers A
5. Salaried drivers
6. Owner-operator driver
The Employer contends that these classifications
are for payroll purposes and do not indicate job
requirements.
Duties of the drivers include operating motor
vehicle equipment from one location to another;
loading or unloading the vehicle or assisting
therein; checking the freight on and off the vehicle;
checking freight on the dock as required; perform-
irg as a helper driver with another to assist in load-
ing or unloading of a vehicle; and engaging in hos-
tling functions in the yard.
All drivers, regardless of their classification, are
required by Interstate Commerce Commission and
Department of Transportation regulations to have a
physical examination; they must be 21 years of age;
those who handle food are required by the State of
Florida to have a health certificate; each driver
must personally inspect his vehicle before he leaves
the terminal area; any driver, regardless of classifi-
cation, must prepare a log, if he travels outside a 50-
mile radius from his point of origin, pursuant to De-
partment of Transportation regulations.
ALTERMAN TRANSPORT LINES, INC. 21
Driver training and evaluation programs are
available to all drivers and employees who wish to
become drivers. In addition to instruction on
refrigeration units , driver training involves
familiarity with the variance in driving procedures
necessary to operate a variety of trucks. A driver
trainee who is inexperienced in handling freight
starts his employment as a dockman. If he wishes to
progress, he must participate in the driver training
program, and he may take prescribed tests to deter-
mine his driver classification; i.e., B, B plus, or A.5
The next promotional level from an A driver clas-
sification is a salaried driver classification. Salaried
drivers are compensated at a higher rate.
Regardless of classification, all drivers are subject
to identical policies and regulations controlled by
the general office in Miami. Hiring and firing is the
exclusive prerogative of the personnel department
in Miami. Drivers who fail to report for work are
docked for lost time irrespective of classification.
All paychecks are issued by the general office.
Drivers receive instructions from local supervisory
personnel when they are in a terminal and assist in
loading and unloading trucks. They must check in
money and freight bills and must service their vehi-
cles and report all out-of-terminal fuel purchased.
All drivers are covered by company insurance poli-
cies, including life insurance, public liability, and
property and cargo damage. However, drivers are
responsible for paying their own fines with respect
to traffic violations.
Certain fringe benefits are for the benefit of all
drivers. The services of a credit union are available
to all drivers, and sick pay benefits are uniform for
all. All vacation requests must be submitted to the
general office for approval. However, owner-opera-
tors and their helpers do not receive vacation or
holiday pay.
Each driver classsification is compensated on a
different basis. An hourly driver punches a
timeclock and is guaranteed 40 hours per week. If
he works less than 40 hours due to lack of work, he
is still compensated for 40 hours. However, if the
hourly driver failed to report to work on one day
during the week and consequently failed to reach
the 40-hour mark, he would be paid only for the
hours actually worked. Salaried drivers, all of
whom are A rated, are guaranteed 60 hours per
week. And, as in the case with the hourly drivers, if
the salaried drivers miss a day's work they are
docked for that time. Salaried drivers do not punch
a timeclock and they receive an incentive of 20
cents per shipment plus one-half cent per mile.'
Owner-operators are paid on a revenue basis; i.e., a
percentage based on the amount of freight they
haul. They do not punch a timeclrjck.
In Jacksonville, there are approximately 30 to 35
hourly rated drivers; 15 to 20 salaried drivers; and
35 owner-operators and helpers assigned to the ter-
minal. The Employer contends that all of its drivers
engage in local pickup and deliveries, that hourly
drivers and salaried drivers both spend approxi-
mately 50 percent of their time on local deliveries,
and that owner-operators have been employed for
the express purpose of local delivery work. The
Employer states that this is not true at all other ter-
minals in the State.
Sidney Alterman, the president of the Employer,
testified that in the past year 15 or 12 hourly rated
drivers from the Jacksonville terminal have spent
one or more nights out on the road. He estimated
that these drivers spend 50 to 75 nights on the road
per year.
Hourly drivers drive from Jacksonville to Savan-
nah, Georgia, a distance of approximately 165
miles . Some make the trip up and back in the same
day. The Georgia border is approximately 25 to 30
miles from Jacksonville. The Jacksonville terminal
area includes, among others, Gainesville, Savannah,
and Waycross, Georgia. There is testimony that 50
or 75 times a year an hourly employee is trans-
ferred out of Jacksonville to take care of certain
workloads.
Only the owner-operators perform the long-
distance hauls to the Employer's terminals in New
York City, Philadelphia, Chicago, Omaha, or Dal-
las. According to Sidney Alterman, all drivers per-
form "in State " runs between the Employer's
Florida terminals, and salaried and hourly drivers
receive the same per diem.
The Employer contends that, although a few of
the lower rated hourly drivers limit their driving to
"straight" trucks, i.e., trucks other than tractor-
trailer rigs , "A" rated hourly drivers spend most of
their time driving tractor-trailer rigs . Sidney Alter-
man testified that hourly drivers drive tractor-
trailer rigs that have sleeping accommodations.
However, he also pointed out that each year the
Employer retires trucks and reassigns them to a
nearby area and that as trucks get old they are
used closer to home.
As noted previously, it is the Employer's primary
contention that the only appropriate bargaining
unit would be a Florida-wide unit composed of all
classifications of drivers, dockworkers, plant cleri-
cals, washrack employees, steam men, hostlers, and
yardmen located at the Pensacola, Tallahassee,
Jacksonville, Orlando, Tampa, and Miami terminals
" Some drivers have refused an A classification because it entails availa- The Employer contends that a similar 20-cent payment per shipment is
bility for travel anywhere in the State of Florida to be instituted for hourly drivers
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employer. The Employer asserts that a sin-
gle-plant or terminal unit is inappropriate where, as
here, there is no prior bargaining history; and there
is central control of supervision, labor relations,
and hiring; integration of operations as well as sub-
stantial integration of duties of all drivers and a
strong community of interest among all drivers; a
uniformity of required skills and a uniform schedule
for wages and employee benefits; and interrelation
of functions between all terminals; an interchange
of drivers between terminals; and drivers are in
frequent contact with each other.
Finally, the Employer attempts to distinguish
Groendyke Transport Inc. ,7 cited by the Board in the
earlier consolidated proceeding, by pointing out
that unlike Groendyke, wherein the Board stressed
the fact that terminal managers had substantial
authority in hiring, assigning , disciplining, and
otherwise controlling drivers with respect to their
day-to-day work, the Employer's Florida terminal
managers clearly do not possess such authority.
The Board has often held that single-terminal
units are presumptively appropriate. The Employer
has not offered sufficient evidence to warrant our
finding that the Jacksonville terminal is an entirely
different type of operation from the Miami, Tampa,
and Orlando terminals where we found appropriate
separate single-terminal units, or that the Groen-
dyke Transport decision is not applicable herein.
Notwithstanding the centralization of operation in
Miami, it is clear that the Jacksonville terminal
manager must exercise considerable discretion in
the handling of freight and in his day-to-day rela-
tionship with the Employer's customers in the
Jacksonville area; he must determine when to
discipline an employee for the violation of rules by
suspension ; and he must alter work schedules in the
event of emergencies. The Jacksonville terminal is
several hundred miles from Miami; it would be vir-
tually impossible to operate the Jacksonville ter-
minal and control the flow of freight without a con-
siderable amount of authority vested in the terminal
manager, notwithstanding that the general office in •
Miami must maintain the payroll, control interstate
shipments, and do the bulk of hiring and firing of
personnel. Contrary to the Employer, we find that
the terminal manager does not merely serve as a
conduit through which Miami's instructions are
relayed to the drivers assigned to the terminal. The
terminal manager's ultimate responsibility for the
dispatch of local drivers and the flow of freight at
the terminal is vital to the success of the Em-
ployer's total trucking operation. Accordingly, we
find that a separate single-terminal unit located at
Jacksonville is appropriate.
The Employer contends alternatively that the
smallest bargaining unit that could be found ap-
propriate would be a terminalwide Jacksonville unit
composed of all classifications of drivers, dockwor-
kers, plant clericals, washrack employees, steam
men, hostlers, and yardmen. It asserts further that
the facts as stated in the present case are substan-
tially different from the conclusions reached by the
Board in the consolidated cases (178 NLRB 122)
and, therefore, do not support the position that a
unit limited to all Jacksonville "city or local (hourly
paid) drivers" plus other employees is appropriate.
The Employer contends that none of the hourly
rated drivers are classified as "city or local"
drivers , since all classifications of drivers, whether
they be B, B plus, or A rated, salaried, or owner-
operators, engage in local pickup and delivery ser-
vices; the Employer's operations require a constant
interchange of drivers between terminals; on any
given day, 25 percent of the drivers working at
Jacksonville are assigned to other terminals; tempo-
rary transfers occur 50 to 75 times a year out of the
Jacksonville terminal ; salaried drivers spend up to
50 percent of their time on local deliveries; owner-
operators have been hired at Jacksonville to do
straight local delivery; hourly drivers are scheduled
to travel out of State for overnight runs; except for
owner-operators, drivers are not assigned to any
particular piece of equipment or to any specific
route; owner-operators also drive company-owned
vehicles when the need arises and also work on the
docks;' and equipment driven by the hourly drivers
is not limited to straight trucks and nonsleeper trac-
tor-trailers. Finally, the Employer asserts that all
drivers share a substantial community of interest in
the operation of the Jacksonville facility.
While the Employer does point out some factors
that distinguish the Jacksonville facility from those
facilities involved in the consolidated proceeding, it
has failed to substantiate, on the record, its conten-
tion that the working conditions at the Jacksonville
terminal are sufficiently different from those at the
Miami, Tampa, and Orlando terminals wherein we
found appropriate separate units of local hourly
drivers. Furthermore, Sidney Alterman testified, in
support of his contention that only a statewide unit
of the Employer's terminals was appropriate, that
the operations at the Employer's various terminals,
including Jacksonville, are similar.
We find that such differences as exist are not
controlling and are not sufficient to warrant a find-
7 171 NLRB 997
6 The Employer notes that on these occasions the owner operators are
compensated on an hourly basis.
ALTERMAN TRANSPORT LINES, INC.
ing that only a unit of all drivers at the Jacksonville
terminal is appropriate. Perhaps the most signifi-
cant factor is that hourly drivers are scheduled to
drive out of State. However, the Georgia border is
only 20 to 25 miles away from Jacksonville, and
many of the trips into Georgia by the hourly drivers
are a result of pickups and deliveries within the ter-
minal area . The Employer's unit position would ap-
pear to be based on the premise that only an op-
timum unit is appropriate. However, the Board has
often found that the unit found appropriate need
not be the only appropriate unit.
In support of its contention that all drivers within
the Jacksonville terminal share a substantial com-
munity of interst, the Employer notes the following:
(1) all classes of drivers are charged for freight they
fail to deliver; (2) all drivers punch a timeclock at
various times;' (3) all drivers are permitted to pick
up casual help with the permission of the
dispatcher; (4) all drivers perform dockwork; (5)
none of the drivers have the right to refuse work;
(6) all drivers use nonmotorized equipment; and
(7) all drivers are required by the Interstate Com-
merce Commission and the Department of Trans-
portation to have physical examinations . None of
the above factors, whether viewed individually or
cumulatively, would warrant our finding that the
only appropriate unit would consist of salaried
drivers, owner-operators, and hourly drivers.
Notwithstanding that there are factors herein
which indicate that the operation at the Jackson-
ville terminal may differ slightly from the opera-
tions at the three terminals in the consolidated
proceeding (Miami, Tampa, and Orlando), we find
that the record herein supports a finding that the
Employer's hourly drivers at the Jacksonville ter-
minal have a separate community of interest from
that of the salaried drivers and owner-operators and
their helpers because of their different duties and
functions, separate supervision, and different basis
of payment. At Jacksonville, there are approxi-
mately 30 to 35 hourly rated drivers who spend at
least 50 percent of their time on local deliveries
within the terminal area, which includes, among
others, Gainsville, Savannah, and Waycross, Geor-
gia; approximately 50 percent of the hourly drivers
are classified as B or B plus drivers; hourly drivers
punch a timeclock; they are guaranteed 40 hours a
week ; some local hourly drivers do nothing but
make pickups and deliveries within the Jacksonville
city limits; hourly drivers drive straight trucks and
are not -required to qualify as "A" drivers capable
of driving tractor-trailer equipment, although some
23
hourly drivers have qualified to drive such -equip-
ment; hourly drivers check with and receive their
orders from city dispatch rather than central
dispatch; and they have the same local supervision.
The record indicates that the interests and-work-
ing conditions of the salaried drivers and the
owner-operators are substantially different from
those of the hourly drivers at the Jacksonville ter-
minal. Salaried drivers `are guaranteed 60 hours of
work per week; they receive an incentive pay plan
of 20 cents per shipment plus one-half cent per
mile for each mile they drive; salaried drivers must
all be "A" rated, i.e., qualified to drive a tractor-
trailer rig; both salaried drivers and owner-opera-
tors make frequent overnight trips as a matter of
course; neither salaried nor owner-operators are
required to punch a timeclock; and both salaried
drivers and owner-operators get their instructions
from central dispatch in Miami when they are out
on the road. Owner-operators own either the trac-
tor or both the tractor and the trailer; they perform
most if not all of the Employer's long-distance haul-
ing; and they are paid a percentage based on the
freight they haul.
In view of the above, we find that the hourly paid
local drivers constitute a separate unit. There is a
further question, however, as to the unit placement
of the following categories, which the Petitioner
would exclude:
Dock Foreman and Dock Foreman Checkers: The
Petitioner contends that they are supervisors. The
Employer, although it did not take a specific posi-
tion at the hearing or in its brief, asserts that they
work on the dock checking freight; that they direct
certain dockworkers as to what trucks are to be
loaded or unloaded; and that at times they load and
unload the trucks. The record also shows that they
direct dock employess, and, while the drivers are
loading and unloading, they do so at the direction
of the foreman. On the basis of these facts, we find
that the dock foreman and the dock foreman
checkers responsibly direct the employees on the
dock and we shall exclude them from the unit.
Dispatchers: The Petitioner would exclude the
dispatchers as supervisors. The Employer look -no
specific position either at the hearing or in its brief.
The dispatchers instruct drivers and helpers in ac-
cordance with central dispatch orders; they assign
drivers to vehicles; and they relay instructions to
dock foreman for the loading or unloading of vehi-
cles. Sidney Alterman testified that the dispatchers
spend 75 to 80 percent of their time directing other
employees. On the basis of the foregoing facts, we
Salaried drivers punch a timeclock to keep track of hours in excess of
60 per week Owner -operators punch a timeclock when driving company-
owned vehicles or when working on the dock
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that the dispatchers responsibly direct other
employees and we shall exclude them from the unit.
Cashier: The Petitioner would exclude the cash-
ier as lacking a sufficient community of interest.
The Employer would include this employee as a
plant clerical. The cashier types outbound
manifests of truck movements; checks all drivers'
receipts, freight bills, and cash collections; and
prepares reports for the general office. The cashier
also receives money from people who have to pick
up their freight at the terminal. The duties of the
cashier are primarily office clerical; we shall there-
fore exclude the cashier from the unit.
O S & D clerks (overage, shortage, and damage):
The Petitioner would exclude these clerks as
lacking sufficient community of interest. The Em-
ployer would include them. 0 S & D clerks work
with the drivers to locate freight shortages; they
determine where excess freight belongs; they assess
the cause and cure for damaged freight; they deter-
mine the disposition of refused freight; and they
help the drivers load freight. One of the two 0 S &
D clerks is a woman who occasionally repacks light
merchandise. Notwithstanding their daily contact
with the drivers, the 0 S & D clerks are primarily
office clericals; we shall therefore exclude them
from the unit.
Rate clerk: The Petitioner would exclude this em-
ployee as office clerical. The Employer contends he
is a plant clerical. The employee in this job reviews
the shipping documents to determine what cargo is
being transported in order to determine the proper
charge in accordance with tariffs filed by the carri-
er with the State and Federal governments. As the
duties of the rate clerk are primarily office clerical,
we shall exclude him from the unit.
Billing clerk: The Petitioner would exclude this
employee as an office clerical. The Employer would
include him. This employee prepares freight bills;
examines bills to determine corrections and weight
and type of cargo; and resolves problems by con-
sulting with the drivers to convey information with
respect to merchandise. Clearly, the billing clerk is
primarily an office clerical; we shall exclude him
from the unit.
Checkers: Although the Petitioner did not men-
tion checkers either in the original petition or in the
amended petition, it did indicate at the hearing that
it amended the petition to conform the unit sought
to the unit inclusions found appropriate by the
Board in the consolidated proceeding. The Em-
ployer took no specific position. There are four to
six employees in this job category. They check
freight on and off vehicles, aid in loading and un-
loading trucks, and select freight to be stored at the
dock. They work with all dock employees and all
classes of drivers on the trucks and on the dock.
Drivers and dockmen also work as checkers on a
daily basis. Checkers have a sufficient community
of interest with the drivers and dockmen; we shall
include them in the unit.
Washrack Man: The Petitioner would exclude
this employee because of his dissimilar duties. The
Employer wo,lld include him because of his regular
daily contact with drivers and dockmen. He is
responsible for spotting trucks at the dock, unhook-
ing trailers, and aiding the drivers in the washing
and loading of the meat racks. As this employee has
duties and interests substantially different from
those of the other employees in the unit, we shall
exclude him from the unit.
Garage Employees (mechanics, shop employees,
and helpers): The Petitioner would exclude the
garage employees as lacking sufficient community
of interest. The Employer took no position on in-
clusion or exclusion of these employees. As these
employees are engaged in shop and service work
and they work in a separate area of the terminal,
we find that they have interests substantially dif-
ferent from the other employees in the unit; and,
therefore, we shall exclude them from the unit.
In view of the foregoing, we find that the follow-
ing employees of the Employer constitute a
separate appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act:
All hourly paid local and city pickup and
delivery drivers, and dockmen, checkers, yard-
men, hostlers, and regular part-time dockmen
employed at the Employer's terminal located
in Jacksonville, Florida, but excluding all
mechanics or shop employees, washrack em-
ployee, office clericals, casual dockmen, dock
foreman and dock foreman checkers, all other
employees, guards, and supervisors as defined
in the Act.
[Direction of Election10 omitted from publica-
tion.]
` O In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
derwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co., 394 U S
759 Accordingly , it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 12 within 7 days of the
date of this Decision and Direction of Election . The Regional Director shall
make the list available to all parties to the election . No extension of time to
file this list shall be granted by the Regional Director except in extraordina-
ry circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
J. P. STEVENS & CO., INC.
J. P. Stevens & Co., Inc. and Industrial Union De-
partment , AFL-CIO. Cases 11-CA-3910 and
1 1-CA-3 944
June 5, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 6, 1970, Trial Examiner James T.
Barker issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that these allegations be dismissed.
Thereafter, the Respondent and the Charging Party
filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein t
The Trial Examiner found that the Respondent
violated Section 8(a)(1) of the Act by deviating
from its past practice of relying solely upon a writ-
ten notice to disclose new wage benefits and in-
stead orally announcing a wage increase 2 days be-
fore a scheduled Board election. While the Trial
Examiner found that the Respondent's action in
posting the notice of the wage increase would not
have constituted a violation of the Act, he thought
otherwise about the oral announcement. We do not
agree with the Trial Examiner as to the legal effect
of the oral announcement in view of his other
findings that the Respondent was conforming to in-
dustry action in granting the wage increase, that
written notices were placed on some plant bulletin
boards during the first speech in accordance with
' In its exceptions, the Charging Party requested the Board to extend the
scope of the Order recommended by the Trial Examiner so as to include all
of the Respondent's plants in North Carolina, South Carolina, and Georgia
In view of the nature of the violations herein found, we do not think that
25
the Respondent's past practice, and that the oral
announcement was made in the context of a pro-
tected antiunion speech Accordingly, we shall
dismiss that allegation of the complaint.
THE REMEDY
We have found in agreement with the Trial Ex-
aminer that the Respondent engaged in conduct
violative of Section 8(a)(3) and (1) of the Act and
accordingly we adopt his remedial recommenda-
tions in that regard. However, we have found, con-
trary to the Trial Examiner, that the Respondent
has not engaged in a certain other unfair labor
practice in violation of Section 8(a)(1) of the Act
and we shall dismiss that allegation of the com-
plaint.
Upon the basis of the foregoing findings of fact
and upon the record as a whole, we substitute the
following conclusion of law for the Trial Examiner's
fourth conclusion of law:
4. By announcing an additional paid holiday 2
days before a scheduled Board election at its Cleve-
land plant in Shelby, North Carolina, the Respon-
dent engaged in conduct violative of Section
8(a)( I) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, J. P.
Stevens & Co., Inc., Shelby, North Carolina, and
Hickory, North Carolina, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified:
1. Substitute the following for paragraph 1(c):
"Announcing improved holiday benefits for the
purpose of influencing the outcome of an election."
2. Substitute the following for paragraph 2(a):
"Offer to Geneva M. Beck immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of
pay suffered by reason of her unlawful discharge, in
the manner set forth in the section of the Trial Ex-
aminer's Decision called `The Remedy."'
the affirmative provisions of our Order should be extended beyond the
Cleveland and Longview #1 plants, which were the plants where the unfair
labor practices in these cases occurred
183 NLRB No. 5
26 DECISIONS OF NATIONAL
3. Add the following after paragraph 2(h):
"IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein."
4. Delete the words "wage increases or" after
the words "WE WILL NOT" in the first indented
paragraph in Appendix A.
5. Substitute the following for the third indented
paragraph in Appendix B:
WE WILL rehire Geneva M. Beck to her
former job or, if that job no longer exists, to a
substantially equivalent position, without
prejudice to her job seniority, and we will give
her the backpay which she lost because we
fired her for her union activities.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: These matters
were heard at Shelby, North Carolina, on
November 18, 1969, pursuant to a charge filed- in
Case 11-CA-3910 on March 27, 1969, by Industri-
al Union Department, AFL-CIO; and in Case
1 l-CA-3944 on July 8, 1969, by the IUD. Having
previously on July 31 and August 29, 1969, respec-
tively, issued complaints in Cases I1-CA-3910 and
11-CA-3944, the Regional Director for Region 11
of the National Labor Relations Board, on Sep-
tember 8, 1969, issued an order consolidating cases
and notice of hearing. The General Counsel timely
filed a brief with me.
Upon consideration of the brief of the General
Counsel and upon the record in the respective
cases,' and my observation of the witnesses in each
case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a Delaware corporation owning and operat-
ing in Shelby, North Carolina, a plant engaged in
the manufacture and distribution of textile
products; and in Hickory, North Carolina, a plant
engaged in the manufacture and distribution of
hosiery products.
During the 12-month period immediately preced-
ing the issuance of the complaints herein, Respon-
dent separately at each of said plants manufactured
finished products valued in excess of $100,000, and
' In accordance with the request of the General Counsel I take official
notice of the following decisions involving the Respondent Company 157
NLRB 869 , enfd as modified 380 F 2d 292 (C A 2), cert denied 389 U S
1005, 163 NLRB 217, enfd as modified 388 F . 2d 896 (C A 2), cert. de-
nied 69 LRRM 2435, 167 NLRB 266, and 167 NLRB 258, enfd. as
modified 406 F.2d 1017, 171 NLRB 1202, enfd 417 F 2d 533 (C A 5),
177 NLRB 944, and 179 NLRB 254 1 have similarly noted , as requested by
the General Counsel , the decision of Trial Examiner Lawrence A. Knapp
(TXD-588-69)
LABOR RELATIONS BOARD
sold and shipped separately from both its Shelby
and Hickory , North Carolina , plants finished
products valued in excess of $ 100,000 to points and
places outside the State of North Carolina.
Upon these admitted facts I find that Respondent
is and has been at all times material herein an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO,
hereinafter called the Union, is admitted to be a
labor organization within the meaning of Section
2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. Case 11-CA-3910
1. The issue
The complaint alleges that on May 26, 1969, the
Respondent , through its general manager, James
Sheppard , promised its employees wage increases
and other benefits in order to induce them from
assisting the Union or becoming or remaining mem-
bers of the Union.
2. The scheduled election
The record establishes that a representation elec-
tion was scheduled to be conducted by the National
Labor Relations Board among the employees at
Respondent's Shelby, North Carolina, plant on May
28, 1969.
3. Benefits orally announced
On Monday, May 26, James Sheppard, general
manager of Respondent's Shelby group of mills,'
gave three separate speeches to groups of em-
ployees assembled in the plant warehouse. The
speeches lasted approximately 20 to 30 minutes.
Contending that the speeches were " antiunion,"
the General Counsel challenges only that part of
the separate speeches which allegedly contained a
promise of wage increases and other benefits.
James Sheppard credibly testified that in each of
his speeches to the employees on May 26 he stated
that effective July 7 there would be an upward ad-
justment of wages, and that the Company "was in-
corporating" an additional paid holiday "in lieu of
a time and a half holiday." In his speeches, Shep-
pard did not designate the holiday which was to be
observed.3
' This group is comprised of six mills, including the Shelby mill known as
the Cleveland plant.
' Employee Julius Downy credibly testified that Sheppard prefaced his
announcement of a raise by an observation that the Company "tried to
keep up with the textile trend," that the textile industry was one of the
highest paid industries , and that the Company was "one of the highest paid
companies "
J. P. STEVENS & CO., INC.
During the course of the first two speeches Shep-
pard mentioned the disruptive effects of strikes
which could cause turmoil in the plant, loss of
earnings and jobs, and result in union fines for non-
participation. Strike experience in two neighboring
plants of other employers was highlighted. Shep-
pard stated that the Company was doing its best for
employees and advanced his opinion that it would
be in the best interest of the employees not to let
the Union represent them.4
4. The posted notices
The first speech which Sheppard made to em-
ployees assembled at the plant commenced at ap-
proximately II a.m. While Sheppard was in the
process of addressing the assembled employees
there was posted on some but not all plant bulletin
boards the following notice:
In keeping with the policy of our Company to
maintain wage levels which are among the
highest in the Textile Industry, we are pleased
to announce that an upward adjustment of
wages will be made effective Monday , July 7,
1969.
The necessary calculations are being made to
determine the new rates and each employee
will be notified of his new rate by his Super-
visor as soon as this work is completed.
In addition to the wage increases, we are also
pleased to announce that there will be an addi-
tional paid holiday. The date to be announced
later.
We appreciate your continuing cooperation
and loyalty.
Julius Downy credibly testified that he did not
observe the notice posted on the plant bulletin
board which he perused following his attendance at
the second meeting. Other employees testified
credibly that they first learned of the wage increase
and additional holiday through the auspices of the
speech. William Washington, an employee of some
9 years' standing, testified credibly, and without
"The foregoing is based on a synthesis of the testimony of Willard
Gaskey, Leonard Marable , Galvin Howell , Shirley McConnell, William
Mitchell , Jr, William Washington , Julius Downy, and Martin Fowler who
attended either the first or second meeting and heard Sheppard 's remarks I
do not credit the testimony of Martin Fowler to the effect that Sheppard
stated in specific terms that the employees could "only receive benefits by
staying with J P Stevens " or the testimony of Galvin Howell to the effect
Sheppard stated in specific terms that the Company "was more favorable
for people than the Union "
Evidence sufficient to give context to the wage and holiday announce-
ment was received in evidence over the objection of Respondent Con-
sideration of testimony relating to these concededly protected utterances
by James Sheppard , for the purpose of shedding light and giving dimension
to the announcements alleged to be unlawful , is appropriate Hendrix
Manufacturing Company v. N L R B , 321 F 2d 100, 103 (C A 5), see also
Darlington Manufacturing Co v N L R R, 68 LRRM 2356, 2361-62,
(C A 4), enfg 165 NLRB 1074
27
contradiction, that in the past wage actions had
been first announced by written notice posted in
the plant.'
James Sheppard credibly testified that notices
identical in wording but slightly different in format
from that posted in the Cleveland plant were posted
in the six plants comprising, together with the
Cleveland plant, the Shelby group.
Sheppard testified that only at the Cleveland
plant were speeches made to employees during this
period of time and that only at the Cleveland plant
were employees assembled and verbally informed
of the pendency of a wage increase and the addi-
tion of a paid holiday.
5. Industry wage action.
On Friday, May 23, Burlington Mills announced
a general wage increase. Sheppard testified,
credibly, that through trade journal and newspaper
coverage and through word of mouth, this action
gained notoriety in the industry and that he per-
sonally became apprised of it prior to his speech on
Monday, May 26. Prior to his speech on May 26,
Sheppard was in telephonic contact with his superi-
ors who informed him of the Company's plan to in-
stitute a wage increase and to add a paid holiday.
On the occasion of his telephone conversation, the
pendency of the Board election at the Cleveland
plant was discussed and the decision was made to
proceed with the wage and holiday decision. Shep-
pard's best recollection was that he learned of the
wage action of Burlington on May 23 or May 24
and that his conversation with his superior trans-
pired on Saturday, May 24.
The wage increase and addition of a paid holiday
was announced companywide to become effective
at all plants of Respondent and was not limited to
the plants comprising the Shelby group.'
Conclusions
The evidence of record establishes that in the
past Respondent has followed, at its Cleveland
plant, the practice of apprising employees of wage
increases through the posting. of written notices on
plant bulletin boards. In May, at the Cleveland
plant, this method of informing employees was not
' The testimony of record is not so definitive as to warrant rejection of
Sheppard 's testimony that during the first speech notices were posted in the
plant , nor is it sufficient to establish that , merely because the notice was not
observed on certain specified bulletin boards , it was not posted on other of
the several bulletin boards in the plant
" On the basis of the testimony of James Sheppard which is undisputed I
find that Respondent 's wage decision was preceded by a decision of a com-
petitor, Burlington Mills, to grant a general wage increase to its employees
While James Sheppard displayed a lack of certitude as to precisely when
and how he learned of the Burlington wage action, I find that his testimony,
considered in its totality, supports the finding that Burlington Mills took the
lead in the round of wage increases granted in May 1969 The General
Counsel came forward with no evidence countering Sheppard's oral
testimony , although evidence to establish the validity or invalidity of Shep-
pard's testimony was undoubtedly readily available In sum, I credit Shep-
pard
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
followed in first announcing improvements in
benefits to a significant segment of the employee
complement.
There is no challenge to the General Counsel's
contention that employees, attending the first meet-
ing on the morning of May 26, 2 days prior to a
scheduled representation election, first learned of
the wage increase in the course of a speech, given
by the plant's highest management official. The
evidence supports the General Counsel's conten-
tion that the speech had an antiunion tenor.
The record established to my satisfaction that, in
granting the wage increases, Respondent was fol-
lowing the lead and conforming to industry pattern.
I am similarly satisfied that industry action played
no role in Respondent's announcement of an addi-
tional paid holiday.
The General Counsel contends that Respondent's
conduct violated Section 8(a)(1) of the Act and
falls clearly within the doctrine of N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405, 409-410.
In Exchange Parts the Board found that an em-
ployer violates Section 8(a)(1) of the Act by con-
ferring benefits to his employees shortly before a
representation election where the employer's pur-
pose is to effect the outcome of the election. In the
course of its opinion the court stated the oft-cited
dicta:
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss
the inference that the source of benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged. The danger may be diminished if,
as in this case, the benefits are conferred per-
manently and unconditionally. But the absence
of conditions or threats pertaining to the par-
ticular benefits conferred would be of con-
trolling significance only if it could be
presumed that no question of additional
benefits or renegotiation of existing benefits
would arise in the future; and, of course, no
such presumption is tenable. [Footnote cita-
tion omitted.]
Noting the observation of the court below that
the questioned conduct stood in isolation, the
Supreme Court observed in Exchange Parts, supra,
410:
Other unlawful conduct may often be an indi-
cation of the motive behind a grant of benefits
while an election is pending, and to that extent
it is relevant to the legality of the grant; but
when as here the motive is otherwise
established, an employer is not free to violate §
8(a)(1) by conferring benefits simply because
it refrains from other, more obvious violations.
The essential inquiry here is into Respondent's
motivation, for Exchange Parts did not relegate mo-
tive to the realm of the immaterial. Rather, it
fashioned the requirement that to support a viola-
tion of Section 8(a)(1) there must be evidence suf-
ficient to support a finding that an employer's con-
ferral of employee benefits "while a representation
election [is] pending [is] for the purpose of induc-
ing employees to vote against the union."7
To sustain the complaint a finding of unlawful
motive must be drawn from the proof of record
herein, showing a departure on the part of the
Company from past practice in the method of an-
nouncing wage increases and from the absence of
any business necessity requiring or warranting the
announcement of an additional paid holiday so
proximate in time to the pending election at the
Cleveland plant.
Given the lack of any business exigency and the
time proximity of the election, the latter action,
standing alone, is a sufficient basis from which the
inference of unlawful motive may be drawn.8 When
this inference is buttressed by evidence revealing
that Respondent did not follow past practice at the
Cleveland plant of relying upon a written notice to
disclose new wage benefits, the motivation becomes
more suspect. When further considered in light of
the evidence that all employees at the Cleveland
plant were informed of the Company's beneficence
either in the forum of an antiunion speech, or in
close time relationship to their exposure to anti-
union comments, the scale of proof tips strongly in
favor of the General Counsel. The Respondent un-
dertook no explanation of its reasons for not defer-
ring announcement of holiday benefits until after
the election, and for including at the Cleveland
plant the announcement of the wage and vacation
benefits in the speeches presented to the assembled
employees. The protected, but antiunion, com-
ments of the company manager disassociated from
company conduct, of course, can form no basis for
a finding of a violation.9 But when, as here, anti-
union remarks serve as the backdrop and setting for
the announcement and bestowal of significant
benefits immediately prior to an election, the
evidence warrants a finding of improper motive.
While the improvement in holiday benefits ap-
pears to have been applicable to and announced at
all of Respondent's other plants through the posting
of notices, the singular lack of urgency in publiciz-
ing for the benefit of the employees the addition of
the holiday is revealed by the fact that management
had not yet decided upon the holiday to be added.
There is a void of evidence suggesting competitive
or industry factors requiring the announcement.
These considerations and the Respondent's propen-
sity, as established by a series of cases litigated be-
Tonkawa Refining Co , 175 NLRB 619
" See Browning Industries, Inc, 142 NLRB 1397, 1400 , Lincoln Mfg. Co
v NLRB., 382 F 2d 411 (C A. 7), enfg 160 NLRB 1866, Burkley En-
velope Company, 165 NLRB 43, J. Taylor Mart, Inc, dlbla Taylors IGA
Foodliner, 166 NLRB 329; c£ Falcon Plastics-Division of B-D Labora-
tories, Inc, 164 NLRB 786, 793-794, Phillips-Van Heusen Corp., 165
NLRB 1
9 N L R B v Exchange Parts Company, supra, 409, fn 3
J. P. STEVENS & CO., INC.
fore the Board and courts, to commit violations of
the Act in furtherance of a design to counter union
organizational efforts whenever such efforts emerge
warrants the finding, which I make, that the an-
nouncement of the holiday benefit was timed to cor-
respond with the election at the Cleveland plant.
The wage action precipitated by industry decisions
served as a convenient nexus for but did not neces-
sitate the admixture of the holiday enticement. I
find that the timing was settled upon by company
management with an eye to its foreseeable impact
upon the election pending at the Cleveland plant.
In sum, I conclude from the evidence as a whole
that the Company refrained from placing exclusive
reliance upon posted notices as a means of first in-
forming employees of the wage increase and timed
the announcement of a plan to improve holiday
benefits because it sought to gain maximum impact
from these actions by joining their announcement
in a preelection, antiunion speech at the Cleveland
plant. I find this conduct violative of Section
8(a)(1) of the Act.
B. Case 11-CA-3944
1. The issues
The complaint alleges that in violation of Section
8(a)(1) of the Act Respondent unlawfully inter-
rogated employees; unlawfully issued warnings to
them; and, by changing their working conditions
and constantly maintaining a watch over them dur-
ing normal working hours, harassed and intimidated
them. Additionally, the complaint alleges that on or
about June 5, Respondent discriminatorily ter-
minated the employment of Geneva M. Beck.
2. The Longview operation
a. Supervision and employee complement
In Hickory, North Carolina, Respondent has two
plants known respectively as Longview #1 and
Longview #2. Only Longview #1 is directly in-
volved in this preceding. At the Longview #1 plant
are employed approximately 1,200 to 1,300 em-
ployees. At pertinent times Glenn Deck was em-
ployed as personnel manager , Harry Jensen served
as assistant personnel manager, Don Baker served
as department head of the greige department,10 and
Kenneth Greer was supervisor of the dextramat de-
partment, with supervisory responsibility over the
greige mending work carried on in the dextramat
department. At the Longview #1 plant there were
maintained at pertinent times three working shifts
and Greer's responsibility extended to all three
shifts.
b. The dextramat department
In the dextramat department are employed on
each shift 20 dextramat machine operators, 1 spot
10 Baker entered on his duties as department head on January 26, 1969
29
checker, 2 fixers, and 1 production clerk. In addi-
tion, on the first shift only is employed one mender
who performs greige mending work. Geneva Beck
was employed as the greige mender in the dextra-
mat department at pertinent times until June 5.
Menders are employed in other departments at
both Longview #I and #2.
3. Beck's employment and duties
Prior to the cessation of her employment on June
5, Beck had been employed by Respondent as a
mender for approximately 3 years. For approximate-
ly 18 months Beck served as the greige mender in
the dextramat department. Some 4 or 5 weeks be-
fore her termination, Geneva Beck was assigned to
do mending at a mending table in the department.
Prior to that, during the course of her employment
as a mender in the dextramat department, utilizing
a portable mending machine, Beck moved from one
operator in the department to another mending
stocking which had ticks and pulls and which had
been placed aside by the operators to be mended.
In addition, as time permitted by use of her porta-
ble mending machine she performed mending tasks
on production set aside by operators on the second
and third shifts.
On or about April 14, Beck was informed that
she would no longer perform her duties by circulat-
ing among the operators in the department. Beck
was told that thereafter she would be assigned to a
work station and would use a different machine in
lieu of her portable mending machine. At the time
of this change, Beck was compensated at the hourly
rate of $1.91. Incident to the change of assignment,
as found below, she was placed on a production
rate basis and was compensated on the basis of 27
cents a dozen.
4. Beck 's union activities
Geneva Beck credibly testified that in late
February the organizational campaign at the Long-
view plant # 1 commenced , Beck attended or-
ganizational meetings and signed a union card. In
addition she passed out some union literature.
5. The alleged interference, restraint, and coercion
Geneva Beck credibly testified that on or about
March 20, in the company of employee Barbara
Annas, she spoke with Kenneth Greer, her super-
visor. Beck and Annas had attended a union meet-
ing on the evening of March 19 and after consulta-
tion together decided to inform Greer of their
union activities. They approached Greer and stated
that they were "for the union," and asserted furthei
that they were not " sneaking and slipping around
and trying to hide" their preference for the Union.
Greer responded that it was their privilege to be in
favor of the Union and he asked Beck if she were
going to be "active." She answered in the affirma-
tive and Greer observed, "I'm going to feel sorry
for some people."
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beck credibly testified that theretofore Greer had
been friendly and would greet her in the morning.
Thereafter , Greer spoke to her only as the necessity
of his supervisory responsibility required. Addi-
tionally , Beck credibly testified , Greer and Don
Baker , department head of the greige department,
"would stand around and watch [ her] and talk,
which was unusual from what had been taking
place."
Geneva Beck credibly testified that on April 11,
Kenneth Greer informed her that she had no work
to do, Beck responded by stating that she had plen-
ty of work to do and Greer responded , in sub-
stance, that while there was work on hand to be
performed it would be done by employees in
another department in their spare time after they
had caught up with their normal workload. Beck
challenged the fairness of not permitting her to
work a full 40 -hour week while allocating available
work to employees in another department. Greer
asked Beck if she wished to speak to Don Baker
and Beck did so. She went with Greer to speak with
Baker . In speaking with Baker , Beck stated that she
did not understand why she could not work when
she had "plenty of work " to do . Baker observed
that Beck 's department was "closed " and Beck an-
swered that she was behind in her work and ob-
served further that she had worked on previous oc-
casions when the rest of the employees were "off."
Baker thereupon observed that Beck was , in fact, 3
weeks behind in her work . Beck responded by
inquiring , " Well, how can I catch it up if I don't
work while they 're off?" Baker answered that she
could catch up on her work on Monday . Beck as-
serted that the other employees would be back on
Monday, and that there was more work than she
could do . Baker answered , "Well we 'll get some-
body to do it. The department is closed."
Geneva Beck credibly testified that she had
worked on "several Friday mornings " when the
dextramat department had been closed and that, on
an unspecified number of occasions, she had done
mending when the department was closed. Beck
further testified that on the occasion of her conver-
sation with Greer and Baker she observed Sandra
Fulbright , the production clerk , working in the
dextramat department . However, Beck testified
further that Fulbright's work was such as to require
her to remain daily current , whereas her own
mending work could be accumulated and deferred.
Don Baker testified credibly that after assuming
his position as supervisor of the greige department
on January 26, 1969 , he made it a practice when a
department was closed down not to permit any in-
dividual other than the production clerk in the de-
partment to work.'[
" Don Baker credibly testified that the exception made with respect to
the production clerk was premised upon the fact that in order to determine
in an efficient and timely fashion the earnings of the production employees,
it was essential to permit the production clerk to work on the day following
the shutdown of a department for the few hours necessary for her to
complete her duties
6. The alleged constructive discharge
a. The April 14 change
In late February , Baker spoke with Bennett
Causby , superintendent of the finishing greige de-
partment concerning the concept of changing the
job of Geneva Beck from a roving one to a stationa-
ry one . Causby had served as a superintendent in
the greige department of Longview plant # 1. After
considering the matter with production manage-
ment , in early April , Causby instructed Baker to
place Beck at a stationary mending table in the
dextramat department. Baker was told to prepare a
table in the dextrament department at which Beck
could work . Baker transmitted these instructions to
Greer and the table was installed. On April 14,
Beck was informed of the decision to change her
job from a roving one to one performed at a sta-
tionary mending position in the plant . She was in-
structed henceforth to work at or in the close
vicinity of the mending table which had been in-
stalled . Beck was assigned a different mending
machine than the portable one which she had been
using and on which she had originally trained at the
outset of her employment 3 years previous. Beck
was further told to work at perfecting her mending
techniques and increasing her output with the new
machine . Beck was then informed that for the
present she would continue to be compensated at
her hourly rate of $1.91, but that she would later be
placed on a production rate to be determined. Beck
worked on this basis until Monday , May 26. In the
6 weeks between April 14 and May 26 Beck's best
daily production was 27 dozen . Kenneth Greer
testified this equaled her best production while rov-
ing and using the portable machine. Beck testified
without contradiction that Greer had never
criticized her work and that Greer 's former superi-
or, Bobby Dotson, had complimented her work.
Beck never received any written reprimands or
warnings.
b. The production rate made effective
On May 26 , after a portion of the morning had
passed , Beck was informed by Greer that she was
now on a production rate and had been so since the
beginning of the workday . Beck was told that her
piece rate had been set at 27 cents per dozen. Beck
protested the rate , stating that it would be impossi-
ble at the rate set to earn the minimum wage of
$1.60, much less her previous wage of $1.91. Beck
observed that she had not been timestudied and
inquired how the rate had been determined. Greer
stated that the rate had been derived from those ap-
plicable to menders in the finishing department.
Beck asserted that the work techniques there were
different and urged Greer in order to assess the ac-
curacy and fairness of the 27 -cent-per-dozen rate,
to have another mender perform the mending work
that her duties required . Beck asserted in this con-
J. P. STEVENS & CO., INC.
nection that it would be impossible on the machine
assigned to her for any mender to mend 47 dozen a
day-the number of dozens necessary in order for
her to earn at the equivalent rate of her former
compensation. Greer declined to make use of
another employee for the purpose of comparisons.12
c. Beck threatens to resign
On Monday, June 2, Beck informed Greer that if
adjustments could not be made in the piece rate as-
signed to her in order to bring her compensation to
a level equivalent to $1.91 that "this would be
[her] last week." Greer answered, "We don't want
that."
Beck then informed Greer that she desired to
speak with Glen Deck, personnel manager. Greer
stated he would endeavor to arrange this. The fol-
lowing day, Greer contacted Beck and informed
her that Deck was very busy, but that he would try
to arrange a meeting for her. Later in the day Greer
told Beck that Deck was out of town, but would be
in town Thursday and that Beck could talk with
him after work on Thursday.
Beck was absent from work on Thursday, June 5.
However, Beck placed a call to the plant and spoke
with the switchboard operator. She requested to
speak to Deck but was told that he was busy. Beck
left a request for Deck to call her. She received no
call from deck.
d. Beck's termination and the aftermath
Beck worked the following Monday, Tuesday,
and Wednesday, June 9, 10, and 11, respectively,
but did not again work in the employ of Respon-
dent.
On Friday, June 6, Beck was told by another
firm, Regal Manufacturing Company, to report to
work on the following Monday at 4:30 p.m. How-
ever, on Monday, Regal called and instructed Beck
not to report.
That evening, with Beck listening in on the
telephone extension, Beck's husband called Greer
at his home and inquired if Regal had contacted
him seeking a reference on Beck. Greer stated that
he had received a call but that he had referred the
call to the personnel office.
" The foregoing is based principally on the credited testimony of Geneva
Beck To the extent the testimony of Kenneth Greer, Don Baker, and
Bennett Causby is consistent therewith , I credit it While I credit the
testimony of Causby to the effect that he and Don Baker conversed in late
February concerning the prospective modification of Beck 's mending job
from a roving one to a stationary one, l do not credit the testimony of Baker
and Greer to the effect that on many unspecified occasions prior to the ac-
tual change in the job Beck had requested the change be effectuated Beck
disclaimed any request on her part for such a change and convincingly
testified that , to the contrary , she did not desire a stationary assignment
and preferred a roving assignment Thus, l am convinced that either
Causby was inaccurate in his recollection to the effect that , when Baker
first discussed the prospective change in Beck 's Job, Baker informed him
that Beck had requested a change, or that, in making such a statement to
Causby, Baker was misstating the facts
31
Thereafter, Beck contacted Glen Deck and
inquired if he had received a call from_ Regal. Deck
stated that he had had no call. Beck protested that
she had lost a job opportunity because someone at
the Company had given her "a bad recommenda-
tion." Deck instructed Beck that the next time she
got a job to call him and he would give her a
recommendation.
7. Alleged posttermination threat
Subsequently, on June 13, Beck went to the
Respondent's office to obtain her final paycheck.
She spoke to Harry Jensen, Deck's assistant. In
response to Jensen's inquiry into her separation,
Beck stated that she was not "happy over the 31-
cent per hour cut in pay." Jensen asked if Beck had
spoken to her superiors and she stated she had. Jen-
sen then said, "Well, I think you jumped the gun a
little too quick." Beck asserted she felt that the
matter had "come about over [her] union activi-
ties." Jensen answered, "Well, Geneva, the ones
that had their name on that leaflet . . . anybody
could come by and pick up one." Jensen added that
it would be hard for Beck to get a job in Hickory.
Geneva Beck testified without contradiction that
on or about March 27 at the plant gates she had
passed out a union leaflet bearing her name and the
names of approximately 100 other employees. 13
8. The alleged basis for production rate
Bennett Causby testified credibly, in substance,
that the 27-cent-per-dozen rate was based on the
rate for menders already established at three other
plants in which he had previously worked. He
testified further, in substance, that this rate was ap-
plicable both in plant #1 and plant #2 for menders
using the same type of machine Beck was using at
the time she ended her employment with Respon-
dent. Causby further credibly testified that 98 per-
cent of the menders in plant #I are assigned to sta-
tionary work and are on a piece rate basis, while
the 2 percent who work on a roving basis, including
the mender in the greige inspection department, are
compensated at an hourly rate. He testified further
that experienced menders at plant #2, working at
the rate of 27 cents per dozen earn in excess of $2
Moreover, t credit the testimony of Beck to the effect that she began
utilizing a new and different mending machine when she was placed at her
first stationary position on April 14 She testified convincingly and with
certitude on this score On the other hand, while Baker and Greer testified
that this transition did not take place until May 26 , they demonstrated less
certitude and I am convinced that their testimony is in error The testimony
of Causby is not directly supportive of the testimony of Baker and Greer, in
this latter regard, as Causby did not testify directly as to the date of this
transition and did not specify any occasions after the modification had
been effectuated when he specifically observed Beck performing her du-
ties
" All of the foregoing is based on the testimony of Geneva Beck, which I
credit Neither Glen Deck nor Harry Jensen testified at the hearing
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per hour. He testified however, in substance, that
there are variations between the job of Beck and
that of other menders in that some mending jobs
entail less mending detail than is required in Beck's
job and some require more.
9. Other evidence of changed attitude
Geneva Beck credibly testified that at a time sub-
sequent to her March 20 conversation with Greer
concerning the Union, she injured one of her fin-
gers with a pair of scissors and it was bleeding. She
asked Greer for something to put on the finger and
Greer answered that he did not have anything.
Beck stated that Greer had a first-aid kit but Greer
commented that he did not have any medicine and
started to walk away from Beck. Thereupon John
Deal, a supervisor on the third shift, approached
and Beck asked him for some methylate to put on
the finger. Deal said that he had something back in
his tote box and gave Beck a band aid.14 Beck
testified there is available to the dextramat depart-
ment a first-aid room to which Greer has a key.
On April 25 during working hours Geneva Beck
went to the restroom and upon her return stopped
to speak with employee Sandra Fulbright. Beck
asked Fulbright for a piece of chewing gum and
spoke with her briefly. Greer approached her and
commented that Beck was not going to get her
mending done. He observed that Beck had been in
the restroom and had been talking.15 Beck testified
credibly that employees were permitted to visit the
restroom as required and that it was practice for
employees moving through the plant for that pur-
pose to stop and speak with each other.
Conclusions
1. The constructive discharge
I find that the evidence preponderates in favor of
a finding that Geneva Beck was constructively
discharged in violation of Section 8(a)(3) of the
Act.
There is a suggestion in the record that Don
Baker initiated an analysis of the dextramat mend-
ing job which Beck held soon after he became su-
pervisor of the greige department in late January,
prior to the advent of the Union . There is , then, an
inference of business purpose in the inquiry that
Baker initiated . But the evidence does not go
beyond this point and , indeed, as the Respondent's
explanation for the personnel action developed on
the record , it becomes clear that Respondent
1° Kenneth Greer testified that he could remember no incident of this
type involving Beck and testified further that he had never declined first-
aid assistance to any employee in the event of injury on the job Whether
Greer's inability to recall the incident was feigned or whether it derived
from his studied avoidance and noninvolvement with Beck throughout the
period of time in question I do not determine However, I am convinced
that Beck was an essentially honest witness and would not have fabricated
this incident I find that the incident did, in fact, occur
makes no contention that in effectuating the
change in Beck's job it did so for production or
other business purposes. I find that this was not a
factor.
The explanation of Respondent's agents for ef-
fectuating the change in Beck's job from one in-
volving a roving procedure to one performed at a
stationary mending table is that it was accom-
plished at Beck's request and to please her. I find
no credible evidence to support this thesis. Rather,
the credible evidence of record establishes that the
change was not at her suggestion and was against
her wishes.
In this context, it is pertinent that the change was
not made until after Beck's union activities and af-
finity had become known to supervision. While
Beck's union involvement was not particularly sin-
gular among the employees, her support for the
Union had been pointedly disclosed to her super-
visor prior to the changes which were wrought in
her job. Her name had also been listed on union
leaflets distributed at the plant. It is a reasonable in-
ference that, if her activity in distributing the leaflet
at the plant gate did not become known to supervi-
sion, the union leaflets bearing her name would
gain a certain degree of notoriety among Beck's su-
periors in company management and supervision.16
But, in any event, the evidence leaves no doubt that
after her union affinity became known, and without
her request, changes of significance which resulted
in no demonstrated or discernible benefit to the
Company were made in Beck's job. The changes
were implemented and adhered to despite Beck's
protestations.
The foregoing chronology is sufficient alone to
cast a pale of suspicion over the actions which
Respondent took. However, Respondent's purposes
and motives become crystallized when analysis is
made of the production rate established by manage-
ment to govern the compensation which Beck
would derive from her job. Despite Beck's inability
prior to the procedural changes in her job to ever
produce at a rate higher than 27 dozen per day-a
rate not exceeded by her during her several weeks'
trial at a stationary post-the rate set was one
which, on the basis of her past level of proficiency,
would compensate her at below the prevailing
minimum wage and substantially below her previ-
ous hourly rate. This consideration becomes com-
pelling in light of the absence of even a modicum of
evidence suggesting that Beck was not a proficient
mender and had not at all times during the course
of her employment been producing at a level
satisfactory to supervision. The Respondent came
'S Kenneth Greer testified that he had spoken to Beck on occasion when
she had lingered speaking with Sandra Fulbright for a period of 15 minutes
or more He placed the incident as having transpired after Beck 's piece rate
had been effectuated Beck 's testimony is to the contrary and I credit Beck.
I think it likely, therefore , that Greer is inaccurate in his recount of the sub-
stance of his comments to Beck and the length of Beck 's visit with Ful-
bright
18 Harry Jensen, assistant personnel manager, knew of the leaflets
J. P. STEVENS & CO., INC. 33
forward with no evidence suggesting that the
change in modus operand: from roving to stationary
was expected to result in a significant increase in
the number of dozens which Beck could produce.
There is no evidence warranting an assumption that
management expected her production to double so
as to approximate her earnings prior to the change.
It is significant that the roving procedure had been
an established and entrenched one at the plant and
that it was one which continued to be utilized in
greige inspection after the change which was made
in Beck's job. In the absence of any evidence
shedding suspicion upon Beck 's capabilities as a
mender , the evidence that some menders working
at the 27-cent-per-dozen rate earn at hourly rates
higher than Beck's former rate is not determinative.
Not only was the evidence in this regard general-
ized in nature but it lacked persuasive force in the
absence of direct contrast between Beck's per-
formance and that of an operator performing the
identical work tasks that Beck was called upon to
perform.
It is not for this trier of fact to engage in specula-
tion with respect to the proper procedures to be
employed by Respondent in establishing a produc-
tion rate for Beck's job. Suffice to find on this
record Beck judged the rate to be so low as to
necessitate her resignation. Her judgment was for-
mulated upon an awareness of her production
capacity over an 18-month period using the porta-
ble machine, and her short-term production record
at the stationary position. There is no evidence of
substance suggesting that Beck resigned for reasons
other than the paucity of her production rate
earnings. In the abstract, it may be reasoned that
Beck's action in leaving her employment so soon
after giving warning of her intentions was
precipitous. But to Beck, reliant upon an
established level of income, there was nothing in
the response of supervision to her protest which
held out any prospect of impending remedy.
Greer's encouragement that Beck, an experienced
employee working at or near her level of top profi-
ciency, aspire to increase her earnings by increasing
her production, was to Beck vapid and futile. Her
inability to obtain an audience with the personnel
officer-even if attributable to other legitimate de-
mands upon his time and availability-did nothing
to increase Beck's confidence that necessary
changes would be made.
Upon the record as a whole I conclude and find
that the change in the procedures of Geneva Beck's
job were undertaken by management for the pur-
pose of causing Beck dissatisfaction, and that the
production rate assigned to the changed job was set
at an artificially low level for the further purpose of
causing Beck to resign her position of employment.
I find that this was done for the purpose of ridding
the plant of a known union advocate, and that the
conduct was violative of Section 8(a)(3) and (1) of
the Act.
2. The independent violations of Section 8(a)( 1)
Supportive of the unlawful motive which I find
governed Respondent's actions toward Geneva
Beck is the change which transpired in the work
relationship between Geneva Beck and her im-
mediate supervisor, Kenneth Greer, after March 20
when Greer learned of Beck's interest in the Union.
I find that the elements of this changed attitude,
which in combination, had the effect of inhibiting
and harassing Beck in her performance of work
tasks, were Greer's intentional change in demeanor
toward Beck during working hours , his main-
tenance of close scrutiny over her as she performed
her work tasks , his refusal of first-aid assistance,
contrary to past practices, and his reprimand of
Beck for conversing with a fellow employee in a
manner previously countenanced by supervision.
The effect of this harassment was to coerce Beck in
violation of Section 8(a)(1).
Consistent with the hostility toward union activi-
ty which formulated the underlying motivation for
the actions which caused Beck to leave her employ-
ment was the March 20 statement of Kenneth
Greer, in context of Beck's disclosure of her union
activities , that he was going to "feel sorry for some
people." In the circumstances in which the com-
ment was made this statement constituted a viola-
tion of Section 8(a)(1) of the Act, as did Greer's
inquiry of Beck if she was going to be active in her
union participation. There was nothing in the dis-
closure of Beck to Greer which necessitated his
inquiry into the potential level of Beck's future
union activities and, when combined with his state-
ment above referred to, the inquiry was such as to
have a coercive effect.
Contrary to the General Counsel I find no impli-
cation of hostile motive or illegality arising from the
refusal of Don Baker to permit Beck to work at her
mending tasks during times when the dextramat de-
partment was closed. Baker testified credibly that
after assuming supervisory authority over the de-
partment in late January, he adopted a uniform
practice of not permitting any employee, save the
production clerk, to work when the department was
closed down. I am convinced that this policy was
applied evenhandedly and was not invoked dis-
criminatorily against Beck.
Nor do I find that the evidence of record is suffi-
cient from which to draw the conclusion that
Respondent intruded in a manner sufficient to
deprive Beck of employment at Regal Manufactur-
ing Company. While the evidence of record gives
rise to a suspicion, it lacks the substantiality neces-
sary to support such a finding. The alleged confir-
mation of Respondent's involvement in this matter
which Beck testified she received subsequent to the
incident was clearly hearsay in nature and lacked
reliability. Further, I find nothing improper or
suspicious in the refusal of Kenneth Greer to give a
recommendation when solicited by Regal. Greer's
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declination was consistent with established policy
which he followed with respect to Beck.
Finally, I find no violation of the Act flowing
from the comments of Harry Jensen, assistant per-
sonnel director, during a solicitous and friendly
conversation with Beck, to the effect that Beck
would have a hard time getting a job in the locality.
Jensen's remarks, analyzed in the context in which
they were made, contain no threat of reprisal on
the part of Respondent nor any threat of personal
intervention to Beck's detriment on the part of Jen-
sen himself. Rather, Jensen's remark concerning
the union leaflets have the connotation of specula-
tion on Jensen's part that Regal learned of Beck's
union activity through gaining possession of one of
the leaflets, or that Beck's association with the
Union gained currency in the community as a result
of the circulation given the leaflets.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship 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
certain unfair labor practices I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. See J. P. Stevens & Co., Inc., 167
NLRB 258, fn. 2.
Having found that in Case 11-CA-3944, Respon-
dent unlawfully and constructively caused the
discharge of Geneva M. Beck because of her union
and concerted activities, I shall recommend that
Respondent offer Geneva Beck immediate and full
reinstatement to her former or substantially
equivalent position of employment, without preju-
dice to her seniority or other rights and privileges,
and make her whole for any loss of pay she may
have suffered by reason of the discrimination
against her by payment to her of a sum of money
equivalent to that which she normally would have
earned in Respondent's employ. Said sum shall be
calculated in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, with
interest at the rate of 6 percent per annum as set
forth in Isis Plumbing & Heating Co., 138 NLRB
716. Having found that for discriminatory purposes
Respondent modified the methods and procedures
relating to Beck's job, and for the same reason set
the piece rate for her job at an artificially low level,
Beck's reinstatement shall be at the hourly wage
rate which , but for the discriminatory change,
would have been in effect for her job, absent the
discrimination . It is also recommended that
backpay for Beck be calculated on the basis of the
hourly wage rate which would have prevailed for
her job , absent the discrimination . Such recommen-
dation , of course , has no binding prospective effect
insofar as limiting Respondent 's freedom to modify
on a nondiscriminatory basis any element of Beck's
job or .the compensation therefore.
Because of the character of the unfair labor prac-
tices found herein , and the propensity of Respon-
dent as memorialized in previous Board and court
decisions involving violations of the National Labor
Relations Act, as amended , I shall recommend that
Respondent cease and desist not only from the
specific unfair labor practices found , but also from
in any other manner interfering with , restraining, or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act. See J. P.
Stevens & Co ., Inc., 167 NLRB 266, enfd . 406 F.2d
1017 (C.A. 4).
Upon the basis of the ' foregoing findings of fact
and conclusions of law and upon the entire record
in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Textile Workers Union of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent discharged Geneva M. Beck
because she engaged in union or concerted activi-
ties and it thereby violated Section 8(a)(1) and (3)
of the Act.
4. By orally announcing during an antiunion
speech presented to assembled employees at its
Cleveland plant in Shelby, North Carolina, 2 days
before a scheduled Board election, a wage increase
and additional holiday benefits, Respondent en-
gaged in conduct violative of Section 8(a)(1) of the
Act.
5. By interrogating employees concerning their
union activities; threatening employees by stating
that supervision would feel sorry for employees
because of their activities in the Union; and coerc-
ing employees by manifesting through supervisory
personnel a changed personal attitude and
demeanor toward employees after learning of their
union activities, by maintaining an unprecedented
watch over them during their normal work, and by
departing from past practice in refusing to make
first-aid supplies available to injured employees and
reprimanding employees for visiting with employees
in a manner previously permitted Respondent inde-
pendently violated Section 8(a)(I) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
J. P. STEVENS & CO., INC. 35
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in this case, I shall recommend that J. P. Stevens &
Co., Inc., its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Work-
ers Union of America; AFL-CIO, or any other
labor organization, by discriminatorily discharging
any employee or by discriminating in any other
manner with respect to hire or tenure of employ-
ment or any term or condition of employment.
(b) Interrogating employees concerning their
union activities; stating that supervision would feel
sorry for employees because of activities in the
Union; in an unlawful manner through the conduct
of supervisors harassing employees in the per-
formance of their work tasks or the enjoyment of
established working conditions.
(c) In any unlawful manner announcing wage in-
creases and/or improved holiday benefits.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Geneva M. Beck immediate and full
reinstatement to her former or substantially
equivalent position of employment, without preju-
dice to her seniority or other rights and privileges
and make her whole for any loss of pay suffered by
reason of her unlawful discharge, in the manner set
forth in the section entitled "The Remedy."
(b) 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 of backpay due under the terms of this
Recommended Order.
(c) Post at its Cleveland plant in Shelby, North
Carolina, and at its Longview # 1 plant in Hickory,
North Carolina, copies of the attached notice
marked "Appendixes A and B," respectively.17 Cop-
ies of said notice, on forms provided by the Re-
gional Director for Region 11 , after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Inform employees of their rights under the
Act and assure them that Respondent will not en-
gage in the conduct from which it is ordered herein
to cease and desist, and that the Respondent will
comply with the affirmative requirements of this
Order by mailing a copy of the attached notice
marked "Appendix A" to each employee of its
Cleveland plant in Shelby, North Carolina; and by
mailing a copy of the attached notice marked "Ap-
pendix B" to each employee of its Longview #1
plant at Hickory, North Carolina.
(e) Convene during working time, by depart-
ments and by shifts, all its employees in the Cleve-
land and Longview #1 plants, and a responsible of-
ficial of the Respondent, at department supervisor
level or above, or a Board agent shall read to de-
partment employees at each plant the contents of
the attached Appendix which has been ordered to
be posted at said plant.
(f) Upon request of the Union, immediately
grant the Union and its representatives reasonable
access at the Cleveland and Longview #1 plants,
for a 1-year period, to its bulletin boards and all
places where notices to employees are customarily
posted.
(g) Upon request of the Union, made within 1
year of the issuance of this Decision, immediately
give to the Union a list of names and addresses of
all employees in its Cleveland and Longview #1
plants.
(h) Notify the Regional Director for Region 11,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'8
'r In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
'" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 11, in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT announce wage increases or
improved holiday benefits at a time or in a
manner so as to discourage employees from
assisting Textile Workers Union of America,
AFL-CIO, or any other labor organization, or
from becoming or remaining a member of Tex-
tile Workers Union of America, AFL-CIO, or
any other labor organization.
427-258 O-LT - 74 - 4
36 DECISIONS OF NATIONAL
The National Labor Relations Act gives all em-
ployees these rights:
To organize themselves
To form , join , or help unions
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
WE WILL NOT interfere with any of these
rights , including your right to join or assist
Textile Workers Union of America , AFL-CIO,
or any other labor organization of your choice.
J. P. STEVENS & CO., INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-2300.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any employee
because of union activities or for any antiunion
reason.
WE WILL NOT (1) question our employees
about their union activities; (2) tell our em-
LABOR RELATIONS BOARD
ployees that supervisors will feel sorry for em-
ployees because of their activities on behalf of
the Union ; or (3) harass our employees in the
performance of their work tasks or the enjoy-
ment of established working conditions.
WE WILL rehire Geneva M. Beck to her
former or equivalent job and pay her for any
loss of wages or income that she suffered with
6 percent interest.
The National Labor Relations Act gives all em-
ployees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a
representative they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these
things.
WE WILL NOT interfere with any of these
rights , including your right to join or assist
Textile Workers Union of America , AFL-CIO,
or any other labor organization of your choice.
J. P. STEVENS & CO., INC.
(Employer)
Dated By
(Representative ) (Title)
We will notify immediately the above-named in-
dividual if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1624 Wachovia building, 301 North
Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-2300.