Ambox, Inc.

National Labor Relations Board - Board Decisions

May 12, 1964

146 N.L.R.B. 1520 (N.L.R.B. 1964)

1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ambox, Incorporated and District No. 37, International Associa-
tion of Machinists , AFL-CIO. Cases Nos. 33-CA-1604 and
.23-RC-2010. May 12, 1964
DECISION AND ORDER
.
On February 13, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Exa.miner's De-
cision. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended that such allegations be dismissed. In addition, the Trial
Examiner recommended that the objections to conduct affecting the
election be overruled, that challenges to three ballots be overruled,
and that these ballots, as well as five other ballots to which challenges
had been withdrawn, be opened and counted and a revised tally pre-
pared. Thereafter, the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision, with supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to .a three-member panel [Members Leedom, Fanning, and.
Brown].
The Board has reviewed the rulings of the Trial Examiner made at.
the hearing and finds that no prejudicial error was committed. The:
rulings are hereby affirmed. The Board has considered the Decision.
and the entire record in these cases, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifica tions.2
1. We find, in agreement with the Trial Examiner, that Respondent
violated Section 8(a) (1) of the Act by (1) Supervisor McCullars' and.
Production Manager Dicks' questioning of employee Deasy as to his
knowledge of the employees' union activities, and as to his own union
statements; (2) President Keith's statement to Respondent's em-
ployees that they "would get more out of him if [they] formed [their].
own company union"; (3) Respondent counsel's questioning of em-
' The Respondent 's request for oral argument is hereby denied as, in our opinion, the•
record, including the exceptions and briefs , adequately presents the issues and the positions
of the parties.
2In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's finding
that President Keith's speech to the employees on December 13, 1962, and his statements
to various employees on or about April 17, 1963, that if the Union won the election he,
would have to hire Negroes, were not violative of Section 8(a) (1).
146 NLRB No. 176.
AMBOX, INCORPORATED 1521
ployees in a manner indicating to them that employees' union activities
had been under surveillance; 9 and (4) President Keith's asking em-
ployee Spears if he had talked to a Board agent about the case, and
offering Spears a benefit if he would give Respondent a copy of the
statement to the Board agent.
2. The Trial Examiner found that the Respondent did not violate
Section 8(a) (1) of the Act by announcing various employee benefits
at a time when the Union's timely objections to the election were pend-
ing before the Board. We find merit to the General Counsel's excep-
tions to this finding. The evidence shows that during the week after
the election, the Respondent announced a general 10-cent-per-hour
wage increase with knowledge that the Union's objections to the elec-
tion were still pending undetermined and that there was a possibility
that a second election would be directed. This announcement, we find,
when considered in the light of Respondent's earlier unlawful conduct,
was calculated to influence its employees' choice of a bargaining rep-
resentative in the event of a second election. Furthermore, although
no specific finding thereon was made by the Trial Examiner, it is
evident that such conduct was part of an overall plan to encourage
membership in and perpetuate a company-dominated union 4 (conduct
which the Trial Examiner found, without exception from the Re-
spondent, to constitute 'a violation of Section 8(a) (2) of the Act) and
in that manner insure the defeat of the employees' efforts at self-
organization. Accordingly, we find that Respondent, by announcing
general benefits while objections to an election were pending, violated
Section 8 (a) (1) of the Act.
3. The Trial Examiner also found that "in the absence of evidence
that the Company had knowledge of the matters inquired about in the
instant case" Respondent did not violate Section 8(a) (1) of the Act
by its counsel's interrogation of employees approximately a week be-
fore the hearing in this proceeding. We find merit in the General
Counsel's exceptions to this finding. Respondent's Counsel Vickery
admits that he interrogated certain employees as alleged, including
Sutherland and Spears. According to Sutherland's uncontradicted
testimony, Vickery asked him who started the Union, who the lead-
ers were, who distributed the authorization cards, whether he (Suther-
land) had signed such card, and who gave him the card. Sutherland
further testified that when he did not tell Vickery who the leaders
were, he saw Vickery write the names of Zella and Sydow on a piece
of paper. Vickery asked Spears substantially the same questions-
and named Zella, Sydow,.and Deasy to Spears as the ringleaders of
the union activity. Both Spears and Sutherland were asked if they
8 The Bin-Dicator Co., 143 NLRB 964.
4 N.L.R.B . v. Philaron Laboratories, Inc., 298 F. 2d 176 ( C.A. 2), cert. denied 370
U.S. 919.
1522 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
had furnished statements to any Board agent. When Spears admitted
doing so, Vickery asked if he could look at the statement. Suther-
land informed Vickery that he had not furnished a statement to the
Board. Vickery then requested that Sutherland show him a copy of
such statement that he might later make.
Respondent contends that such interrogation as to the employees'
union activities was for the purpose of preparing for trial and to de-
termine who were the members or leaders of the Union. The Board
and courts have held that where an employer has a legitimate cause
to inquire, he may exercise the privilege of interrogating employees
on matters involving their Section 7 rights without incurring Sec-
tion 8 (a) (1) liability. The interrogation here, however, went beyond
that legitimately necessary for the preparation of Respondent's de-
fense. Thus there is in our opinion no legitimate relationship between
Respondent's defense to the allegations of this complaint and informa-
tion as to which employees had engaged in union activities or were
instrumental in bringing the Union into the plant. In addition, as the
Board has consistently held, an employer may not lawfully request
an employee to furnish or exhibit any statement which he has given
to a Board agent 5 Under .all the circumstances, we conclude that the
conduct of Respondent's counsel in connection with the interroga-
tion of Spears and Sutherland coerced and intimidated employees in
the exercise of their rights to self-organization. Accordingly, we find
that the Respondent thereby violated Section 8(a) (1) of .the Act.'
4. The Trial Examiner found that Respondent violated Section
8 (a) (3) and (1) of the Act by discriminatorily discharging Sydow
and Zella on December 7, 1962, and Deasy and Spears on December
14, 1962.1 The Respondent: contended economic justification, in thaC
these employees, along with three other employees, were discharged
because of a decline in the Respondent's business and, moreover, that
the discharges could not have been discriminatorily motivated since
Respondent's President Keith, who alone, as Respondent alleges, de-
cided on the layoffs, did not know of the union activities of the four
discriminatees. r Although.a mass of data was submitted to show a
business decline, for the month of 'December, the Trial Examiner did
not attach any probative value to'this.evidence. He found that on
December 3, only,4 days before Sydow and Zella were discharged,
Respondent's Production. Manager Dicks had expressed his concern
over the extent of absenteeism and told the employees that "it looked
5 Johnnie'8 Poultry Co., 146 NLRB No. 770.
G Guild Industries Manufacturing Corp., 133 NLRB 1719 , enfd . 321 F . 2d 108 (C.A. 5)
Johnnie18 Poultry Co., supra.
7In addition , but not alleged as violative of Section 8(a) (3), Spradachene was laid off
on December 7 and Boenig and Sutton were laid off on December 14. Spears was recalled
and reinstated on January 30, 1963. Boenig and Sutton had been recalled and reinstated
at the time of the hearing.
AMBOX, INCORPORATED 1523
like work was going to be picking up and that he' expected everybody
to . . . quit taking time off and go to work ..." 8 and that the Re-
spondent's President Keith, whose sole decision it was to terminate
Sydow, Zella, Deasy, and Spears, had failed to show that there had
followed an unexpected change in business conditions that justified
an immediate reduction in the cost of operations. Moreover, the Trial
Examiner found that if business conditions on December 7 were so
different from those on December 3, the Respondent had failed to ex-
plain why there was a special need for employees on December 3,
but a surplus only 4 days later. Similiarly, there was no explanation
for the assurance given by Production Manager Dicks to Deasy shortly
before December 14, when Deasy and Spears were laid off, that there
would be no further layoffs. In the light of these findings by the Trial
Examiner, the fact that the only incident of significance between
December 3 and 7 was the initiation of union activities by Sydow,
Zella, Deasy, and Spears; the fact that Keith's decision to terminate
Sydow and Zella was made without notice to or consultation with his
own production manager; that Keith had shown his strong hostility
to union organization by embarking on a, course of unlawful inter-
rogation and the formation and domination of a company union; and
that of the 5 employees who attended the initial meeting with the
Union, 4 were discharged without adequate reason, whereas only 3
of the other 29 employees were also laid off, it is difficult to escape
the conclusion that Keith's true reason for the discharge of Sydow
and Zella on December 7 and Deasy and Spears on.December 14 was
their union activities .9
Finally, we agree with the Trial Examiner that the evidence in the
record is sufficient to support a finding that the Respondent had
knowledge of union activities. Thus, the Trial Examiner credited
Deasy's testimony that. Foreman McCullars stated to him on Decem-
ber 13 that he had heard the boys were trying to get a union in and
asked Deasy whether he thought they would "go for it," and also
credited Deasy's testimony, over the denials by Dicks that he had
asked any question concerning the Union whatsoever, that on Decem-
ber 14 Dicks. asked him, "What do you know of this Union stuff
around the shop ?" and "what [he] thought of the union movement go-
ing around in the shop . . . . " Deasy "thought unions in principle
were good things . . . ." As the Trial Examiner concluded, and
8 While there was testimony ascribing this statement to Keith, it is clear that Keith
was present when it was made.
Y On the claim that business conditions warranted the layoffs, the Respondent sought to
justify its selection of Sydow, Zella, Deasy , and Spears on various grounds. We agree
with the Trial Examiner that , while the question as to the basis for his selection of these
employees is not relevant in view of the finding that the assertion of economic necessity
was a mere pretext for their discharge , we also agree with the Trial Examiner that the
Respondent did not, in any event , credibly establish that good grounds existed for their
selection.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with which conclusion we agree, "in the absence of a valid explana-
-tion of the terminations, so precipitately made after full attendance
Was insisted upon, the warranted inference is drawn that the Com-
pany acted on the basis of knowledge of the employees' union ac-
tivities and discriminatorily terminated the employment of Sydow,
Zella, Deasy, and Spears." Accordingly, in agreement with the Trial
Examiner, we find that Respondent violated Section 8(a) (3) and (1)
-of the Act by discharging Zella and Sydow on December 7, and Deasy
and Spears on December 14,1962.
5. The Trial Examiner recommends that the objections to the
election be overruled. In the absence of any exceptions we shall
adopt this recommendation and overrule the objections to the elec-
tion. We shall also adopt the Trial Examiner's further recommenda-
tion that the challenges to the ballots of McInnes' Green, McCullars,
William W. Jones, B. W. Jones, Schoenstein, Wiley, Byrd, and Magee
be sustained, that the challenges to the ballots of James E. Biles,
Sydow, and Zella be overruled, and, as the challenges to Carter,
Franklin Biles, Mikeska, Fuller, and Spruiell were withdrawn at the
hearing, that the Board direct the Regional Director to count the
ballots of the last eight named employees, and to issue a revised tally.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommendedby the Trial Examiner and orders that
the Respondent, Ambox, Incorporated, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications :
1. Paragraph 1(d) is deleted and the following substituted therefor:
(d) Urging a company union or promising benefits therefrom,
interrogating employees concerning their union activities or the
union activities of other employees, or, interrogating employees
in such manner as to lead the employees to believe that it was
engaging in surveillance, announcing benefits at a time when
objections to an election are pending, or requesting copies of em-
ployees' statements to the Board or promising benefits therefor.
2. The fourth paragraph of the Appendix is changed to read :
WE WILL. NOT urge a company union on employees or promise
benefits therefrom, interrogate employees concerning their union
activities or the union activities of other employees, interrogating
in such manner as to lead the employees to believe that we are
engaging in surveillance, announce benefits at a time when objec-
tions to an election are pending, or request copies of employees'
statements to the Board or promise benefits therefor.
AMBOX, INCORPORATED 1525
TRIAL EXAMINER'S DECISION, AND REPORT AND RECOMMENDATIONS
ON CHALLENGED BALLOTS AND OBJECTIONS TO ELECTION
This is not the place to attempt any theodicy on behalf of the Board, or
any contrary argument. But lest the Board find it necessary to pronounce the
truism that an employer may adopt a new policy,' it needs to be pointed out, with
respect to the Section 8(a)(3) aspect of this case, that the issue is not the Com-
pany's right to lay off when work is slack, but whether the change from its earlier
practice2 was discriminatory.
It may also be noted in this preliminary word that incidental among the issues
most important to the parties in this case, and yet themselves of importance and
general interest, are two of the issues under Section 8(a)( I), which relate to alleged
threats of required employment of Negroes and enforced association with them.
The complaint herein, as amended (issued June 14, 1963; charges filed April 25
and June 14, 1963), alleges that the Company has violated Section 8(a)(3) of the
National Labor Relations Act, as amended, 73 Stat. 519, by discharging and failing
to reinstate Robert J. Sydow and Julius V. Zella on or about December 7, 1962, and
Ewing M. Deasy on or about December 14, and discharging Bobby G. Spears on
or about December 14, reinstating him on or about January 30, 1963; Section 8(a) (2)
of the Act by initiating and promoting a labor organization on or about May 22,
1963, and thereafter interfering with its administration and dominating and support-
ing it; and Section 8(a)(1) of the Act by said alleged acts and by interrogating and
threatening employees, requesting that they form a company union, promising bene-
fits in connection with a company union and also if there were no union, announc-
ing benefits when a question existed concerning representation, acknowledging surveil-
lance of union activities, and requesting and promising benefits for a copy of an
employee's statement to the Board. The answer, as amended, places in issue
the status of three alleged supervisors and denies the allegations of violation, alleg-
ing that the four employees named were laid off for economic reasons.
Consolidated with the hearing and proceeding on the above issues was a hearing
and proceeding with respect to issues raised by challenged ballots and objections to
conduct affecting the results of an election held among employees of the Company
on April 19, 1963.
A hearing was held before Trial Examiner Lloyd Buchanan at Houston, Texas,
from September 17 to 23, 1963, inclusive. All parties having been given an op-
portunity and indeed having been requested to file briefs, and the time to do so
having been extended, a brief has been filed by the General Counsel. The General
Counsel, although neutral in connection with presentation of the facts concerning
the representation portion of the hearing, has been helpful in supplying authorities
on the law applicable to the facts adduced.
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Texas corporation with office and
plant facilities in Harris County, Texas, is engaged in custom fabrication of metal
products; and that during 1962, a representative period, it sold goods valued at more
than $50,000 to Mira-Pak, Incorporated, a customer which is located within the
State of Texas, and which during that year sold and shipped products valued at
more than $50,000 from points in the State of Texas directly to customers located
outside the State of Texas. I find on the admitted facts and also on the basis of
the Regional Director's Decision and Direction of Election dated March 20,
1963, and Section 102.67(f) of the Board's Rules and Regulations, Series 8, as
amended, that the Company is engaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the meaning
of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a)(1)
It was stipulated or admitted that Keith , the Company 's president , and Dicks,
its production manager, are supervisors and agents, and that Vickery,. its counsel,
is an agent , all within the meaning of the Act. The Company denied that Green,
1 Nello L. Teer Company, 143 NLRB 787.
2 In the Teer case, assignment to repair work and even permitting men to sit around ;
In the instant case, making other assignments and permitting them to take time off when
work was slack.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a plant production supervisor, Nielsen, a department supervisor, and McCullars, a
night-shift supervisor, or any of them, are supervisors and agents. I find, and I so
stated at the hearing, that on the basis of the Decision and Direction of Election and
Section 102.67(f), both aforementioned, that Green, Nielsen, and_McCullars are
supervisors within the meaning of the Act.
As counsel for the Company was informed, none of this affected his right to
prove, as he disingenuously stated it to be his intention, that the duties of Green,
Nielsen, and McCullars had changed since the time of the prior consideration. But
counsel's statement or promise of proof was not supported and the proof was not
offered.
Deasy testified without contradiction that on or about December 13 McCullars,
remarking that he had heard that the boys were trying to get a union in, asked
whether Deasy thought they would "go for it." McCullars did not testify. Dicks
did testify concerning an incident involving Deasy on December 14, but denied that
he knew at that time of Deasy's union membership or activities and further denied
that he had at any time asked Deasy "any question concerning the Union whatso-
ever." I credit Deasy's testimony that on December 14 Dicks asked what he knew
about "this union stuff" or the union movement going around in the shop, and what
he thought of unions in general. Counsel for the Company referred at the hearing
to a pretrial affidavit by Deasy in this connection. With the General Counsel and
counsel for the Company respectively claiming that the affidavit corroborates Deasy's
testimony on the stand and that it impeaches, contradiction has not been pointed
out, and I find that the statement is corroborative of Deasy's testimony concerning
the interrogation. These questions by McCullars and Dicks, particularly in the
-context of the other violations found, were in violation of Section 8(a)(1) of the
Act.
Referring to a speech which Keith made at an early Christmas party which the
Company gave on December 13, Spears testified that Keith advised the employees'
wives to talk to their. husbands "about this union thing" and look at it from various
viewpoints. According to Deasy, Keith declared that a strike might involve their
job security and prove costly to the employees, and that increased labor costs could
result in a cut in the work force. Jeopardy alleged in this connection would de-
pend on intervening factors. It was not portrayed as inevitable: the results would
be set in motion, if at all, by others.3 What Keith said is not per se interference;
nor do I find in such remarks a tendency to.interfere so as to limit Keith's right to
express his opinion. Lacking here is that element of finality regardless of inter-
vening action by a union or other third person, which the Board has elsewhere
found violative.4 This was no threat by the Company. -
The allegations that on or about April 17, 1963, Keith threatened various em-
ployees that if the Union prevailed in the election to be held on the 19th, he would
be required to hire Negroes and that the employees would thus "suffer enforced asso-
ciation with persons of supposedly inferior origin" is supported by such testimony as
that Keith said that, if the Union came in, he would have to hire Negroes to avoid
a charge of discrimination against them and that they would be sharing the same
restrooms. The General Counsel's position is that company threats of such action
constitute unlawful interference.
I realize that in some eyes this, although a minor issue in the case and one which
will scarcely affect the remedy, looms as of greater moment than the other interfer-
ence alleged, the unlawful domination, and the claimed discrimination. But what-
ever attitudes or opinions may be with respect to racial relations and comments
thereon, whatever passions may be aroused, ours is the function to evaluate the
words and their setting or context in the light of statute and existing policy.
It has been declared as a desideratum that employment be given without regard
for or discrimination because of race or color. This is to be so regardless of the
reaction of any who may be directly involved or who may consider themselves in any
way affected, however remotely.
If what was said is to be evaluated regardless of personal or so-called racial
reactions, we turn to the prohibition against interference. For the moment omitting
and finding of unlawful aspect in the interference, that the words used by Keith
would tend to interfere with or restrain the employees may reasonably be found;
this presumably was his reason for uttering them, the Company's opposition to organ-
ization by this Union being admitted. (It goes without saying that the test is not
a Cf. N.L.R.B. v. W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5) ; Haynes Stellite-
Company. 136 NLRB 95, 97. See footnote 9, infra. See also The Lord Baltimore Press,.
145 NLRB 888.
4 Cf. Surprenant Mfg. Co.. 144 NLRB 507, and cases there cited.
AMBOX, INCORPORATED 1527
the actual effect on employees, whether they would consider the remarks -a threat or
a promise of benefit.) But we must not ignore the right given to express views or
op.nion without threat of reprisal or promise of benefit. The question then is
whether a prediction or even a threat (an actual promise of benefit in continuing
existing practice, as distinguihsed from a prediction of this, might lead to a different
finding) of employment without regard for color is a violation of the Act. An
adversary proceeding, this differs from representation cases, where the Board may
find, even in the absence of unlawful acts, an interference with the laboratory
conditions which it seeks.
I start with the proposition that a declaration that the Company would not
discriminate or would not be permitted to discriminate because of color or race
is not per se violation of the Act. It conforms with declared Federal policy in gen-
eral and the Board's in particular. We then have the question whether there was
violation because the remarks were distasteful to the employees; and even if the
Company was not expressing its endorsement of or devotion to Fair Employment
Practices principles, and if it did intend to portray a distasteful consequence.
Whether or not the Company did so, we must not only recognize public policy, but
we must not in fact support and encourage those who oppose it.
While a finding of threat and the tendency thereof may well depend on local
circumstances, I cannot conceive as unlawful any statement, however unpleasant
to employees, where action contrary to that described is frowned upon in the law.
If public policy be recognized in this respect, the obligation to recognize it is as
much the employees' as it is the employer's. What is declared to be a desideratum
is not less such because someone does not desire it. We must clearly recognize the
right even to threaten or otherwise interfere with employees' rights which are not
covered by the Act. An employer may lawfully threaten to discharge all who
wear high-button shoes, or all who do not wear high-button shoes; or to limit new
hiring to one group or the other. Even if employees are reluctant or object to
working with Negroes, such an attitude is not protected and an employer may warn
and threaten with regard thereto; and if this be so,.it may warn or threaten that it
would be required to act if the Union prevailed.
Can we hold that, whatever the motive, a warning of action which our national
policy favors is an unlawful interference with employees' concerted activities? What
employees are by law required to accept is not to be held an unlawful threat to them;
and he who declares it even as a willful or inflammatory bearer of ill tidings or a
self-regarded prophet of doom is not thereby guilty of an unlawful act. The issue
here is not the Company's motive, but the overt act and its tendency to interfere
unlawfully with employees' lawful concerted activities.
In the Petroleum Carrier case,5 cited by the General Counsel, the threat to bring
in new employees against whom there were feelings of aversion and attitudes of
discrimination was coupled with a clearly recognized threat to limit the workweek.
Nor, unlike Boyce Machinery,6 is there in the instant case a -threat against job tenure.
Replacement without discrimination which violates the Act is quite different from dis-
charge, or other practice which violates the Act, and replacement.
When it is held unlawful to deny or prevent certain association and employment,
it cannot be consistently maintained that it is unlawful to cite or threaten the pos-
sibility of such employment and association. The threat or prophecy reflects no
more than the sociological eversion which has been proclaimed. It is the threat or
possibility, not of discrimination, but of inability and ceasing to discriminate which
faces us. Stated another way, is it unlawful even to threaten that which is lawful
and required? Does a statement of that which is lawful and indeed can be required
become unlawful because of the intent or the motive behind it? (We must bear in
mind that the discrimination considered here is racial, not that under Section 8(a)(3)
of the Act.)
Jf despite what has here been said, distincttion is to be made between a prediction
and a threat of what is required, there is now no basis for holding that what would
otherwise be a prediction is to be treated as a threat if the racial issue is injected.?
In this connection, we need to consider the factors cited supra, that there has been
a declaration of policy against discrimination and that the threat claimed interferes
with existing attitudes which are themselves frowned upon as racially discriminatory.
But, it may be argued. Keith's statement was connected with union victory in the
.election then pending. The answer to this is that his conclusion, regardless of the
:condition stated, was lawful and indeed required; and even if it was made in the form
E Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031, 1038.
6 Boyce Machinery Corporation, 141 NLRB 756.
? Westinghouse Electric Corporation (Meter Plant), 119 NLRB 117, 118.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a warning or threat, it was at most a threat of what the Company must .and may be
compelled to do. If the Union, in the plant, compelled early compliance with declared
national policy, a warning thereof by the Company is not violative. (We do not
reach the question of any promise of benefit in continuing the existing practice if the
Union lost the election. That -issue has not been raised, and Keith did not make
any such promise even while he continued a racially discriminatory policy, perhaps
in view of possible action against the Company if he did.) While a threat not to
discriminate may interfere with employees' concerted activities, we can scarcely find
violation, i.e., it -is not unlawful interference, if the threat be to do what the law
iequires.8
In fact and in addition to this broad finding, it can hardly be said that Keith was
actually threatening rather than predicting retaliatory action if the Union prevailed.
The General Counsel's witnesses testified variously that he "would have to hire some
Negroes because if he didn't, they would be discriminating against them"; "he
would probably have to hire niggers"; and "if a union came in he would more than
likely have to hire Negro employees." 9 [Emphasis supplied.] For the reasons stated,
and unless and until the Board declares the contrary (I know of no such contrary
decision), I must and do find no violation in the allegations of subparagraphs 7(d)
or (e).
Additional reason for dismissing these allegations can be found in the discussion,
supra, of this Christmas party speech. Although the attitude or motive would be
entirely different, to find violation here would be to align the law with and encourage
opposition by these who would bar employment of Negroes; and to reflect a tender
concern, which the law decries, for the very feelings of those who would discriminate.
Whatever the law and public policy requires, embittered feelings are not determina-
tive here. Whether or not the law has been violated does not depend on the orderly
acculturation of those involved and the fact that speaker and audience respectively
intended or regarded as a threat that which is and can be required.
Neither the law nor policy directs hiring on a numeral clausus basis. A threat to
replace white with colored employees could therefore be found to be violative for its
limitation without governmental' sanction . But a statement that the Company would
be required, presumably when hiring replacements or additional employees, to hire
colored people does not transcend the requirements of an existing national "program
designed to eliminate racial consideration in employment." 10
Also on or about April 17, Keith told the employees that they would get more
out of the Company if they formed a company union than if they brought in out-
siders. By those statements and by similar urging on May 22, when he initiated a
company union, infra, the Company urged the employees to form a company union
,and promised benefits in that connection, in violation of the Act.
The complaint further alleges that on or about May 1, "when a question concerning
representation of Respondent's employees still existed," Keith announced various
employee benefits. The Board election had been held on April 19, and the Union's
objections filed on April 25 were pending. These facts make the case materially
different from those of promises of benefit prior to an election, where violation has
been found and it has been held that the intent was to influence the employees'
choice even if no strings were attached to the promises."
6 Support for the finding here may also be claimed in the Supreme Court's recent deci-
sion in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, where the Court declared that
it "place[d] no reliance . . . on [the] . . . words of the respondent disassociated from
its conduct." The finding herein has been made entirely apart from this statement by
the Court, which will probably become the subject of a great deal of discussion and
interpretation.
O For a case where the Board ultimately found a threat rather than a prediction (the
racial issue was there rejected for other reasons), see Neco Electrical Products Corpora-
tion, 124 NLRB 481, 482, 487; remanded sub nom. International Union of Electrical,
Radio and Machine Workers, AFL-CIO, 289 F. 2d 757 (C.A.D.C.) ; modified by Board on
remand, April 13, 1961 (unreported).
"The quotation is from a public appeal recently made by President Johnson.
"Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613, 620 (C.A. 7) ;
N.L.R.B. v. Imperial-Eastman Corp., 322 F. 2d 679 (C.A. 7). Cf. N.L.R.B. v. Exchange
Parts Company, 304 F. 2d 368 (C.A. 5), reversing 131 NLRB 806. The Company has in-
dicated only its reliance on the court of appeals decision in Exchange Parts; it has said
nothing concerning the point here noted that Keith's remarks were made after the elec-
tion. ( Since the hearing herein, the Supreme Court, considering " the conferral of benefits
while a representation election is pending," has reversed the court of appeals decision. In
Exchange Parts, footnote 8, supra.)
AMBOX, INCORPORATED 1529
. The entire election procedure would fall into serious disfavor were an employer
hampered in promising or granting benefits after an election and while objections
to conduct affecting the results of the election were disposed of. The rights of em-
ployers and employees would be seriously curtailed by the filing of objections and
involvement in an unfair labor proceeding. The General Counsel of the Board (as.
distinguished from his representative at the hearing), referring to Exchange Parts
recently declared:
In the Board's view, the statute bars an employer from using his economic power
for the purpose of influencing his employees' choice of bargaining representa-
tives and for an employer to grant benefits to the employees at a critical point
in the union's organizing efforts, and particularly before a Board election, to
induce them to reject the union is a misuse of that power. Of course, the Board
does not suggest that pending an organizational campaign or an election the
employer must stand still and maintain the status quo without regard to
legitimate business considerations. The decisive factor in the Board's view is the
timing and motivation.
The critical point mentioned was 'apparently the preelection period, i.e., during
the organizing campaign and "particularly" just before an election. The period after
an election is not of that type. If laboratory conditions for a free election are re-
quired, with their necessary limitations on otherwise proper action,12 neither the
conditions nor the limitations must be maintained after the election under penalty
of finding of an unfair labor practice. (Conceivably, postelection acts may affect
the timing of a further election.)
To the extent that motivation may be relevant where our concern is Keith's right
to speak without interfering with a fair election, there is no sufficient basis here for
finding that he acted in contemplation of a possible election at a later date. The mere
filing of objections by one party to the election proceeding does not operate to stay
or bar the other, or the objector for that matter, from otherwise lawful acts. It is
clear from the testimony of the General Counsel's witnesses that Keith said that
increases would be granted retroactively as soon as the election objections were cleared
up, and that the promise of benefits was not made dependent on the outcome of the
election proceeding. I do not rely on employee Sutherland's unclear testimony
in which both the proposed increase and formation of a company union were men-
tioned but scarcely and certainly not sensibly connected. I find no violation here.13
Approximately a week before the commencement of the hearing herein, counsel
for the Company admittedly interrogated employees as to who were union leaders and
who was procuring union cards, and also concerning any aspects of alleged company
knowledge of such facts. It was explained that this was done in order to prepare for
trial and to determine who were members or leaders of the Union.
The General Counsel cites Guild Industries 14 as authority for the proposition that
interrogation of employees concerning the union activities of other employees is.
violative. It appears that in that case the employer had knowledge that the employees
asked about were members of the union. In the absence of evidence that the
Company had knowledge of the matters inquired about in the instant case , it appears
reasonable for counsel, preparing for trial, to have sought additional facts which
might be helpful (e.g., that employees other than the alleged discriminatees were
active) and thus to inquire concerning such union activities. 15 In addition to claiming
lack of knowledge of union activities, the Company could properly seek to show, if
that were the fact, that union activities were engaged in by others, not by these alleged
discriminatees. I find no violation here. This is not a case of polling employees
concerning their desires 'as to representation.
A similar defense was offered with respect to paragraph 7(k) of the complaint,
which was clearly stated and repeated at the hearing. The explanation for the
questioning of employees fails entirely to meet the allegation that surveillance had
been indicated by the Company. I find violation here. (Testimony was also received
concerning counsel's request for a copy of any statement which an employee might
give to the Board. This was neither alleged nor litigated. We now come to such
requests by Keith.)
12 Cf. The J. S. Dillon & Sons Store Co.. Inc., 144 NLRB 1235.
1a Cf. Standard Coil Products, Inc., 99 NLRB 899, 902, 905 (footnote 11), where the
employer granted increases 3 days after the election. Such right is not lost because the
employer, as here, waited 12 days.
14 Guild Industries Manufacturing Corp., 133 NLRB 1719 , 1727, enfd. as modified 321
F. 2d 108 (C.A. 5).
15 Cf . N.L.R.B. v. Guild Industries Manufacturing Corp ., 321 F. 2d 108 (C.A. 5).
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint further alleges and Spears testified.in substance that Keith on Sep-
tember 12, a few days before the hearing, asked Spears whether he had talked to a
Board agent about the case, requested a copy of his statement to the agent, and pro-
mised that if he furnished a copy, it would "put a feather in [Spears'] hat." Aside
from the question asked Spears, an employer's solicitation from an employee of a
copy of his statement to a Board agent , whether demanded or requested, violates the
Act,16 as does a promise of benefit for a copy.
B. The alleged violation of Section 8(a) (2)
The 8(a)(2) aspect of this case calls for little more than a recital of facts.
Beyond the denials in the answer, nothing has been submitted to controvert the testi-
mony of the General Counsel's witnesses in this respect other than the statement in
closing argument that counsel for the Company "find[s] it a little implausible that
the president of the company who has been advised by very good counsel [sic] would
use the words 'company union'," which the General Counsel's witnesses uniformly
used. In the absence of contradictory testimony, we can rely upon those items in the
General Counsel's proof which relate to his specific allegations, and omit reference to
other matters which might be found to be violative but which were not alleged. The
testimony received is reliable and is credited.
We have seen that Keith urged the employees on or about April 17 to form a
company union . We have also noted, supra, without reliance on it, that about
May .1 Keith mentioned formation of a company union. We need not consider
these earlier events as so-called background;' the evidence directly connected with
the allegations is quite plain. While the dates of early meetings in this connection
are not clearly set forth, the facts credibly appear. Early in May,17 Keith and sev-
eral others, including some who admittedly are supervisors, met with all the produc-
tion personnel in the shop. One of the men with Keith carried a bulletin board
with a sign on it reading, "Employee-Management Relations Council." Address-
ing the employees , Keith stated that the Company had an idea for a company union.
If he did not use the latter phrase but presented ideas for the formation of a "union,"
it is quite understandable that to the employees this meant a "company union ," as in-
deed it did. Referring to a batch of papers, Keith explained the organization of the
union : there would be Council composed of four representatives, two from the shop
and two, whom Keith now named, from management. He also stated that there
would be a bulletin. board and a suggestion box; be had already prepared the form
to be used for suggestions, which would be placed in the box; all complaints, whether
serious or not, would be considered by the Council, but neither suggestions nor
complaints would be considered unless they were deposited in the box before the
Council meeting, which would be held on the last Wednesday of each month. Keith
left Spears in charge to hold an election for the two shop representatives, who were
to be chosen from among these employees, and all but the production employees
withdrew. Spears and Sutherland were elected, and the Company was so informed.
All of this took place during working hours.
The Council has since met on the last Wednesday of each month, although the
May meeting was placed at about a week after the election of the two Council
representatives. When, at the first Council meeting, Sutherland started to say
something about the forms, one of the management representatives cut him off
with the reminder that they bad agreed to limit their consideration to what was in
the suggestion box. At later meetings, the Council discussed such matters as being
off on July 5, the 4th falling -on Thursday (the Council agreed to this subject to
approval by Keith, who thereafter did approve the day off); suggestions for a fan
in the shop, change in the Company's vacation policy, sick-leave policy, the Christ-
mas fund, and working hours. The matters thus discussed were thereafter taken up
with Keith by the management representatives on the Council, with positive results
on at least some of the items.
Quite clearly the Council has dealt with the Company concerning grievances,
hours, and other conditions of employment; it is a labor organization within the
meaning of the Act. As clearly, the Company has sponsored and dominated the
Council and has at least interfered with, if it has not controlled, its administration.
If more need be said in this connection concerning the Council, whose very name
was taken from a sign first prepared by-.the Company, it was in fact formed as
10 W. T. Grant Company, 144 NLRB 1179; Winn-Dixie Stores, Inc., 143 NLRB 848.
'7.This is no great variation . from the allegation of violation on or about May 22, and
since that date.
AMBOX, INCORPORATED 1531
a company union to function,. as it did, as a labor organization dealing with the
Company concerning terms and conditions of employment. The limitations im-
posed by Keith and thereafter accepted, on the Council's deliberations and recom-
mendations or requests, were procedural; they did not affect their scope so as to
prevent the Council from functioning as a labor organization as defined by the Act,
although they did impinge on the Council's authority. Keith sponsored and
promoted the Council so that the Company, in the language of the Act, interfered
with its formation and dominated it even with respect to the number of representa-
tives, the dates of meeting, and limitation on matters discussed to items previously
noted in writing and placed in the suggestion box provided by the Company.
Apparently unconcerned or unaware of the law in this connection (whether he
had at that time "been advised by very good counsel," we do not know), Keith
made no attempt to dissemble his feelings or to mask his intent. A more flagrant
violation of Section 8(a)(2) would be hard to imagine. It cannot be said that the
Company, initiating the Council, was lending lawful cooperation which was not
violative. No more lawful is its subsequent domination.
C. The alleged violation of Section 8(a)(3)
The employment of Sydow and Zella was terminated by the Company on Decem-
ber 7, 1962; of Deasy and Spears on December 14. The last named was thereafter
recalled and reinstated on January 30, 1963.
Union activities here were initiated on December 3, 1962, when Sydow discussed
with Zella and Spears the idea of getting representation, called a union representative
during the morning break, and then arranged for a meeting in Deasy's motel room
that evening. Present at the meeting were Sydow, Zella, Spears, Deasy, a fifth
employee, and the union representative. The five employees signed authorization
cards, and Sydow and Zella received additional cards to be signed by other employees.
Thereafter Sydow distributed and got six or eight cards signed. At lunch one day
during the middle of that week, Sydow handed a card under the table to another
employee. Nielsen, the shop foreman and a supervisor, was sitting across the table
and allegedly saw the latter put the card into his pocket. Even without Nielsen's
denial that he saw Sydow hand the card over, it would not be at all clear that
Nielsen (or Dicks or Green, infra) saw it or, seeing it, that he knew what it was
despite its distinctive color and appearance.
Other direct testimony to suggest company knowledge involves Zella, the other
alleged December 7 discriminatee. This is also weak: Zella could say only that
Dicks was close enough on December 4 and 5 to see an employee signing a card
which Zella had handed him. The card was signed outside the building, as was the
case with some 10 employees who were signed up by Zella. On December 6, Zella
went to the Company's paint shop at noon and there, as men drove up, called three
over and showed them the cards. It does not appear that any signed at that time;
Zella testified that "some of them didn't want to have anything to do with it." Green,
production supervisor at that plant and a supervisor within the meaning of the Act,
approached Zella, who was in his truck holding union cards in his hand on the seat,
and asked what he was doing there. Zella replied, "Nothing in particular." Green
did not testify.
The weakest link in the General Counsel's chain of facts and warranted inference
is that of company knowledge of these organizational activities. Keith, who testified
that he alone decided on these layoffs, testified that he had not known who the union
"ringleaders" were and on the respective layoff dates did not know of the union
activities of the four alleged discriminatees. I have earlier made a credibility find-
ing with respect to Dicks' denial that he questioned Deasy concerning union activities;
Deasy also denied knowledge of the union activities of these four.
We shall return to the question of company knowledge after consideration of the
terminations, the circumstances surrounding them, and the credibility of the explana-
tion offered.
Testimony that a decline in the Company's business warranted layoffs is no more
determinative on the one hand than that layoffs were not effected during prior slack
periods on the other. The answer to the former argument is that the question
remains whether the action taken was prompted by such decline or by the organiza-
tional activities; to the latter, that no right to be assigned to odd jobs vested in em-
ployees when production is limited-although assignment to maintenance work at
this period in prior years suggests a regular need for such work and the employees.
The issue remains : Were the layoffs or discharges here triggered by the union
activities?
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the question centers on the Company's motive on December 7 and 14, its
subsequent serious losses and its later dispositions are irrelevant unless expectation
thereof or knowledge in December be shown. With respect to the mass 18 of testi-.
mony concerning the Company' business, its balance sheets, sales volume, cash
position, equity, etc., there is no evidence that past or current data. were not as
available on December 3 as on December 7, or that they differed; as for the future
into August 1963, the figures were quite as unknown-and again there is no evidence
of a different expectation or a basis for a different expectation when the layoffs
were made. In all the data and oral testimony, there is no evidence that immediate
prospects appeared different, or in what respect, on December 7 than they had
on December 3 beyond Keith's conclusionary statement that in his opinion the
economic and financial condition of the Company on December 7 required a reduc-
tion in the cost of operation. Even here no difference from December 3 was in-
dicated, and no attempt made to explain or disavow Dicks' declaration that the
men would be needed. Certainly the marked decline in volume of sales for the
entire month of December does not prove that at the time of the layoffs there were
any existing facts contrary to Dicks' expectation as declared by him on December 7
and 14, infra. What may have developed later in December we do not know.
Whether because of later decline (the pickup was marked in January and there-
after) there would have been any layoffs and. of whom, we cannot speculate. We
do know that some of those laid off, including Spears, were recalled, and that there
has been some new hiring.
The Company's failure to offer figures which, were this a fact, would show sud-
den and rapid decline early in December makes suspect the detailed references to
nonprobative data, and even to relevant data which hold less than the primary sig-
nificance of the Company's contemporaneous expectation. In the absence of pro-
duction figures, we accept the Company's use of sales as reflecting production
during the respective periods. (One might otherwise assume that a drop in sales some-
time in December would result in less production later, and that the November
sales would sustain production into the early part of December at least.) The
Company's sales figures belie Dicks' testimony that men (sometimes as many as half
of them) had been used for a substantial amount of maintenance work for about
2 months before December 1962, merely to give them something to do. October
1962 sales had exceeded October 1961 by $12,000; November 1962 sales were $5,000
less than November 1961. In the face of the impressively higher sales in October
1962, Nielsen told us that the slack period in the fall of 1961 had been shorter.
Keith testified that the Company's prospects were dim in December. But we
are concerned with the prospects on December 7 and 14, when the layoffs were
made; and as we are about to see, a definite and specific contrary statement, not
thereafter countermanded or even modified, was made to the employees the very
week of the first discharges. (We do not even know when the Company received
the data concerning a small loss in November 1962, after a period of cumulative
profits since January 1961 through October 1962.) By contrast with the details
and mass of testimony and charts concerning the Company's business, we have not
a word of explanation for the stated greater need for the employees (no exceptions
indicated) on December 3, and the alleged surplus and need to lay off 4 days later.
Indeed the change must have startled even Dicks, who on the 3d had spoken of the
need for the men: he testified that he did not learn of the first layoffs until December 7,
receiving a memorandum from Keith that afternoon. The admission of need
guilelessly made on December 3 and at no point in the record denied or explained
by the Company can be relied on; not the unexplained about-face. No more sig-
nificant than the need or lack of need several months later is the testimony that.
when work started to taper off several months before December, Dicks had discussed
layoffs with Keith. One of the uncontradicted facts unexplained by the testimony
offered to explain these terminations is that the need was stated to the employees
on December 3 to the point of an order that they stop taking time off. What Dicks 19
said was that "things were picking back up . .. [They] were going to have to put
[their] shoulders back to the grindstone."
IS The Company's counsel has made no argument concerning what specific bearing these
figures have on the defense that economic need recognized by the Company prompted the
terminations. Whether the Board will be favored with such argument remains to be seen.
I have myself found no difficulty in ,resisting the flattering notion that company counsel
attributed to me an ability to discern that which he has not himself indicated. Items
which are weighty and bulky,, like the figures and charts, are not necessarily Impressive.
19 One witness was not certain whether it was Keith or Dicks who said this. It is clear
that Keith was present when it was said to the assembled employees, and the statement
carried his endorsement whichever one made it; neither denied it.
AMBOX, INCORPORATED 1533
Whatever clairvoyance or reasonable fear and provision therefor may be argued,
this statement by Dicks only 4 days before the termination of Sydow and Zella is
most eloquent and convincing. Nor can it even be said that later events verified
the Company's December estimate: the only estimates prior to the terminations as
testified to are Dicks' of December 3 and again on the morning of December 14
when he told Deasy that he did not anticipate additional layoffs. If Dicks was not
taken into Keith's confidence with respect to the terminations, he did know as pro-
duction manager what the manpower needs were. In the welter of testimony,
oral and documentary, the only new fact which intervened between December 3
and 7 was the commencement of union activity. I find that Dicks' recognition or
expectation of need for men so clearly expressed to the employees on December 3
and to Deasy on the 14th was the Company's expectation and that, in the absence
of evidence of change of facts which might support a claim (were it made) of change
within these 4-day and few-hour periods, the expectation existed on December 7
and 14; 20 that the defense of economic necessity, which would be sufficient had it
been the actual reason for the terminations, is pretextual; and that the layoffs were
discriminatorily prompted by the union activities.
Unlike the Hotel Texas case,21 the finding of discrimination here is not based on a
comparison of losses and the reasonableness of any company reliance thereon; but
on the evidence, negating such reliance, that immediately. prior to the respective
terminations the need for employees was indicated and contemplation of layoffs
denied.
It is thus unnecessary to concern ourselves with the claim of discriminatory selec-
tion for discharge 'although it may be pointed out that, arguing that economic
conditions required its action, the Company attempted to explain and justify selec-
tion of these employees for termination. In Deasy's case,22 the explanation for as-
20 Unlike the respondent in the Nello L. Teer case (143 NLRB 787), the employer here
has not even claimed a change In policy: without explanation to that effect at the time
or at the hearing, It decided to terminate the employment of men whom it had a few days
earlier urged not to take time off since their regular attendance would be needed.
21 N.L.R.B. v. Citizens Hotel Co., d/b/a Hotel Texas, 326 F. 2d 501 (C.A. 5).
a Made before other credibility findings and review of the evidence disclosed the pattern
of discrimination herein, an analysis of the explanation offered by the Company for select-
ing Deasy for discharge reflects on the entire defense. Thus Supervisor Nielsen testified
that he had earlier reported Deasy drunk on the job and that he or Dicks had sent him
home. Before that occasion, Deasy had been coming In late because of his daughter's
illness. Clearly he had frequently been late or absent. While Deasy had no vested right
to continue such conduct and he could have been discharged therefor, he was not termi-
nated on December 14 for that reason. He testified that Dicks remarked that he smelled
"a little strong" ; he replied that half the plant probably did after the company party the
night before but that if It embarrassed Dicks, he would go home and return the following
Monday ; that Dicks said that was not necessary but, If Deasy preferred, that would be
all right. Then followed the Interrogation noted supra, and Dicks' statement that as far
as he could see from the advanced production schedule, no further layoffs were coming up.
Deasy punched out and left before noon.
Again there is an unexplained and sudden change. On Monday morning, Deasy's time-
card was not in the slot. He went into the office and told Dicks he guessed this was "it,"
the latter confirming and adding a cryptic remark about the result of hiring people he had
known. (They had been acquainted before Deasy was hired for this job.) Deasy re-
marked that he was the only layout man, and to tics question why he had not been told
on Friday, Dicks replied that he had not himself known of the discharge until about
4 p.m. that day. (There was no suggestion at this point that Dicks considered Deasy's
replacement, Barnes, to be a better layout man despite Nielsen's -unreliable attempt to
indicate that.)
The Company's acceptance of Deasy's work and his conduct points up the sudden change
In its attitude on December 14 or 17. From Nielsen's and Dicks' testimony, the Company
had greater, but in its own opinion apparently insufficient, reason to discharge Deasy in
prior months. It appears that some of the Inspection reports on his work which were
received in evidence were not sliown to Deasy. (Although he was cross-examined in this
connection, his testimony was consistent concerning each report.) The reports before us
were prepared for Keith at his request during "a particular period in which [the Company
vas] having considerable trouble in the plant with errors" (evidently not Deasy's alone).
(Further Indication along, this line, brought out by the Trial Examiner's questions, was
not pursued at the hearing. It appeared to be no more important at that time than it
had to the Company," which had neither discharged nor disciplined Deasy.)
Testimony that Deasy's work was unsatisfactory has a hollow ring, and I do not credit
it; certainly not that It caused or contributed to his termination. Despite his many
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signing an inexperienced man to his job is fanciful when viewed in the light of the
facts as they existed on December 14, not as they later developed. That Barnes
learned and subsequently proved able to handle the job is hardly relevant to the
question whether the Company, aside from discriminatory considerations, in fact
preferred him to Deasy on that day. This situation makes a mockery of attempts
to justify any of these terminations on the basis of relative seniority and merit,
which would bear on the issue of discriminatory selection were that issue reached.
Similarly the explanation with respect to Spears was that the work to be given
him called for a lower rate and in the Company's judgment it "ruined" a man to
cut his pay: this after Spears had been give a 22-cent increase effective on Decem-
ber 12, 2 days earlier! Again, reflecting not only on Spears' case but on the entire
defense of lack of work to justify the various terminations , Spears worked 4 hours
overtime during the last full week of his employment although he was not paid at
the overtime rate.
As for Sydow and Zella, the fact that neither was for a long time thereafter re-
placed bears indeed on the later economic situation well into 1963; but our concern
remains the situation early in December 1962 as the Company itself described it and
as its representatives admittedly viewed it. Related to Zella's right to reinstatement
is Dicks' testimony that Zella, when laid off, told Dicks not to call him because he
was not coming back.. Zella's version was that he said, "If that is the way you
feel, I don't know if I would want to come back." Whichever words were used,
Zella's pique over the sudden termination and his belief that the Company "would
find a way to get rid of [him] anyway" are understandable. This was no refusal
by Zella to work, and that it was not relied on by the Company is clear from Dicks'
testimony that he did not attempt to recall Zella or Sydow because he had no work
for them. If Zella was angered , no more determinative is Deasy's casual acceptance
.of his termination . As much ( or little ) may be said of the reason given by the
alleged shortcomings, Deasy, like the others, was only laid off, not discharged, according
to Dicks. (We need not go into the insufficient attempts to explain why only Spears was
recalled.)
If Barnes , who replaced Deasy, has since proved to be satisfactory, he had previously
been called on to do layout work only to supplement or fill in for Deasy, and each time
was returned to his punch press. (Barnes signed a union card, but was the Company's
observer at the election.) The situation is not to be viewed in retrospect, but as it
developed. I find that whatever economic or personal reasons might have justified com-
pany action against Deasy, such reasons had not prompted the Company to act earlier,
and did not on December 14. That there was insufficient work, as Deasy acknowledged,
may be recognized. But as already noted, this was no new condition and, like the other
discriminatees, he had nevertheless been retained and was told earlier on the day of his
discharge that he would be. Actually, it does not appear that there was a scarcity of
layout work, which was Deasy's job, beyond the fact that no such work had been
scheduled for the afternoon of the 14th. (Analyzing further, we can note that this latter
fact made Deasy's early departure that day quite inoffensive ; also, despite the absence of
a scheduled job that afternoon, Dicks had told him that he could remain.)
While the Company had every right to discharge Deasy absent discrimination and to
train Barnes , the patent exaggeration of the latter' s experience In the attempt to justify
his retention in preference to Deasy (still on the issue of discriminatory selection) makes
It clear, and I would find, that the reasons given in this connection were likewise pre-
textual. This would further support the finding that Deasy was discriminatorily discharged.
.In connection with the acknowledgment of lack of work, the authenticity of the Com-
pany's documentation and its data generally becomes questionable. It seems that the
word "Apprentice" was inserted in Deasy's exit interview form at some time other than
when the rest of it was filled out and, as he testified, after he had signed it. The word
appears to be in the same handwriting but the letters are larger than those elsewhere on
the sheet including those in the words "Layout man" immediately preceding; further,
the ink appears to be the same, but the lines in the letters of "Apprentice" are thinner
than the others on the sheet. Deasy also questioned several report forms and notations
on them. On the question of reliability of data produced by the Company, we need not
concern ourselves with the suspicious appearance of two timecards for Zella's last week,
one with his name typed and bearing two clocked time stamps and two handwritten (of
16 places for "in" or "out" time markings on two other cards received, 14 were marked
by the timeclock, one was written in, and one was blank) ; the other with his name in
someone's handwriting and with time stamps. Unlike the other cards, neither of the two
here first referred to was signed by Zella. These cards were received primarily on the issue
of Zella's credibility on the issue of overtime on December 6.
AMBQX, INCORPORATED 1535•
Company at Spear's exit interview, or the employee's reason given for unemploy-
ment compensation purposes that he had been laid off in a reduction in force. While
these are admissible to show what was said, our concern is still with the Company's
actual reason, which is to be found only when all of the evidence is considered. An
employee's own evaluation may be significant when the issue involves him, as the
quality of his performance, violation of rules, etc.; not so when the credibility of
the Company's defense at the hearing is in issue.
Such other attempts to denigrate these employees and their performance as the
testimony that Zella had been troublesome and Sydow had at one time had a poor
attendance record boomerang on the Company. Zella was the senior employee in
his department, had received the safety award at the Christmas party in 1961, and
would have been entitled to another for 1962 had he been employed another week,
as Dicks admitted. As for Sydow's attendance record; Dicks declared that this.
"probably wasn't of any great concern at the time" since the workload was down.
It thus appears that the Company was attempting at the hearing to suggest problems
and reasons for selecting these employees which had not in fact been its reasons.
Nielsen, who detailed Zella's troublesomeness, admitted that he had problems with
the nonunion and junior welder, Rountree (as did Dicks), had thereafter transferred'
him to the night shift (in the late fall of 1962), and that Rountree had "slugged it
out" with another employee. Nor is there evidence that Keith, who decided on the
terminations, knew of Zella's alleged personality shortcomings; he did not consult
with Nielsen concerning the layoffs. (Dicks testified that although he learned of the
first layoffs when he received a memorandum from Keith a few minutes before they
were made on December 7, he had previously discussed layoffs with Keith; he could
not say when for the first time.)
Even were there testimony concerning the Company's expectations on December
7 and 14, the credibility of such testimony would be doubtful in the absence of
explanation for the volte-face: Men had been permitted to take time off; they had.
not been discharged while work was slack; then they were told that they were needed
and that they should discontinue their absences-and 4 days later commenced the.
termination of four of the five employees who had initiated the union activity. The
finding of discrimination because of such activity is here made not because the Com-
pany's alleged reason appears to me to be insufficient, the adequacy of the reason.
being for the Company itself to determine; but because I do not believe the testimony
that the alleged reason in fact prompted the terminations . The pertinent elements.
are the Company's contemporaneous knowledge of its economic situation and its
expressed belief concerning the need for men.
While Dicks did not effect the discharges, the significant fact here is that he would
know the Company's need for men; and he spoke for the Company to the men in
this connection. I credit Dicks' indicated knowledge and statements rather' than.
the claim that the Company on the respective termination dates realized that it did
not need various employees.
If a drop in business warranted layoff, Dicks' announcement indicates that the.
Company was actually expecting a pickup and, so far from laying them off, was
insisting that they be regular in attendance. While economic conditions in December
1962 and in prior years would have warranted layoffs, I find that they were not
in fact the reason for the action now taken by the Company; and that the quick
reversal from December 3 to the layoffs, first on December 7 and the later layoffs
after Dicks on December 14, told Deasy that he did not anticipate more layoffs,
were triggered by the organizational activities. Significant is the fact that 4 23 of the
5 who met with the union representative on the evening of December 3 were laid
off, a proportion far out of line 24 from that between the total of 7 laid off on
December 7 and 14 on one hand and, on the other, the total of 34 production and
maintenance employees , of whoirr 17 had signed union cards.
While counsel for the Company early declared, "It's important for us to prove
in this proceeding that in many instances where the choice.was made, the employee
23 Two of these were among the three laid off on December 7 ; two among the four on
December 14. Of the latter four, all but Deasy were thereafter recalled , these including a
trainee . Disparate treatment is an important indication of company knowledge. Admiral
Linen Service, 138 NLRB 361, 862. While it was testified that all four of the discrimi-
natees signed union cards on December 3, an exhibit sponsored by the Union indicates that
Sydow , who first spoke of getting a union , signed on December 4. But the cards were
shown to counsel for the Company, and no question was raised concerning the testimony
that they were signed on the 3d.
s' N.L.R.B. v. W. C. Nabors, 196 F . 2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865.
744-670-65-vol. 146-9'8
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be laid off would necessarily have to be a union man" if a layoff had to be made
in a department in which all employees were union men, there is no evidence of
any such situation. While he was correct in further stating that "it would have
been impossible to lay off two welders without getting at least one union welder"
since three of the four welders were members of the Union, the fact is that the non-
union welder, although lacking seniority, was not laid off while Sydow and Zella
were. (With the layoff of the two who helped sponsor the Union, no explanation
was offered for the retention of the other two welders in the face of Supervisor
Nielsen's testimony that there was not enough work for two.) Despite counsel's
recognition of the importance of the proposed proof on the issue of discriminatory
selection, there is no such proof-aside from the fact that 100 percent membership
wuld not warrant selection of the leaders. The Company's other reasons for the
terminations do qot support the claim of mathematical necessity based on 100 per-
cent union membership, which was nonexistent. (That all four men in the machine
division had signed cards is quite irrelevant; Spears had been transferred to the
press brake department, and another reason was now given for his layoff, as we
have noted.)
We have seen that much of the proof relied on by the Company to show economic
justification is not even relevant, relating as it does to matters which were not shown
to have prompted the Company at the time of the terminations; that some of these
facts could not have prompted it since they were not in existence; and that it had
declared the contrary. Thus Deasy was replaced by Barnes, who it could only
be hoped would learn to do the work however able he later turned out to be.
This instance reflects the Company's discriminatory attitude and action, and sheds
light on the validity of its related defense with respect to the other discriminatees.
We return now to the question of company knowledge of union activities as
bearing on these terminations. Although the burden of proof is on the General
Counsel,25 the circumstantial evidence here warrants the inference of illegal dis-
charge rather than of legal discharge. Were there no evidence of company hostility
to unionization, infra, and knowledge 26 of organizational activity in this case, the
circumstances and the testimony concerning these discharges would warrant the
statement that we are "justified in relying on circumstantial evidence of discrimina-
tion and [are] not required to deny relief because there was no direct evidence
that the employer knew these men had [initiated union activities] and was dis-
pleased. or wanted to make an example of them." 27
The direct evidence of company knowledge of these employees' organizational
activities, standing alone, is slight. But with several other elements it affords a
basis for inferring that the Company did indeed on December 7 know of Sydow's
and• Zella's activity despite the limited direct testimony in that connection, and by
December 14, of Deasy's and Spears'. Relying on inference, we need not attempt
to prove such knowledge from those facts alone which reasonably support the in-
ference. Thus, and particularly where the Company's explanation is found to be
pretextual, knowledge may be inferred from the facts noted, supra, with respect to
25 "In each case it must be established whether the legal or the illegal reason for the disc
charge was the actually motivating one, and if- evidence of both is present we must
ascertain whether the evidence is at•least as reasonably susceptible of the inference of
illegal discharge drawn by the Board as it is of the inference of legal discharge . . . .
In doing so we must keep in mind that while proof that a discriminatory purpose was
the motivating one is rarely direct, and it may therefore be established from all the cir-
cumstances , the burden is throughout upon the Board to establish that it was, and this
may not lightly be inferred. N.L.R.B. v. McGahey, 5 Cir., 233 F. 2d 406." N.L.R.B.'v.
West Point Lffg. Co., 245 F. 2d 783, 786 (C.A. 5), cited in N.L.R.B. v. Atlanta Coca-Cola
Bottling Company, Inc., Atlanta, Georgia, 293 F. 2d 300 (C.A. 5).
"We have no details concerning the extent of Dicks' knowledge and when he acquired
it. It will.be recalled that we have not relied on his denial of knowledge as of Decem-
ber 14. With Dicks' denying that he interrogated Deasy concerning the Union, we of
course have no explanation from him for-these questions, wbicb.I have found he did ask.
Having discredited that denial, I do not rely on his denial of knowledge of Deasy's union
membership or activities. The questions, aside from McCullars' to Deasy 2 days before,
provide additional basis for finding that the Company had knowledge of union activities
and,Deasy's in particular. Nor should we overlook Deasy's reply to Dicks that he thought
unions in general are good.
ZT N.L.R.B. v. Link-Belt Company, 311 U.S. 5'84, 602. See also N.L.R.B. v. C. W. Rad-
cliffe, 211 F. 2d 309, 315 (C.A. 9), cert. denied 348 U.S. 833; N.L.R.B. v. Jamestown
Sterling. Corp., 211 F. 2d 725, 726 (C.A. 2) ; N.L.R.B. -v. Putnam Tool Company; 290 F. 2d
663, 665 (C.A. 6).
AMBOX, INCORPORATED 1537
the layoff of four of the five who brought the Union into the plant, the small num-
ber of employees, and the disproportion among those who signed union cards. We
need not speculate whether the Company received information from any of the
several who were solicited but who "didn't want to have anything to do with" the
Union. No more need we speculate whether to allay suspicion Keith, learning
who had initiated the union activities, decided not to take action against these four
at the same time.
In the absence of a valid explanation for the terminations, so precipitately made
after full attendance was insisted upon, the warranted inference is drawn that the
Company acted on the basis of knowledge of their union activities and discrimina-
torily terminated the employment of these four.
In N.L.R.B. v. Byrds Manufacturing Corporation,28 the employer pointed out that
the four employees there in issue and eight others had been discharged; here, these
four and three others, one of the four but two of the three being later recalled.
While in Byrds it was urged that there was no pattern of termination aimed at union
activities, here the employment was terminated of four of the five who initiated the
union activity. As here, it was argued in Byrds that the Company had no means of
knowing that the four were members of the union; and also that there was nothing
in the record concerning company knowledge of the union activity of one employee.
But the Board found that the terminations were contrived and pretextuous, and its
petition for enforcement was granted.
It may finally be noted that, while the reckless or ignorant disregard of the law
manifest in the 8(a)(2) violation, supra, is not here present, the discrimination
found reflects the later disclosed intent. Apart from the Companys opposition to
organization of its employees by the Union, the following from the Supreme Court's
recent opinion in the Erie Resistor case 29 supports the finding of discrimination:
When specific evidence of a subjective intent to discriminate or to encourage
or discourage union membership is shown, and found, many otherwise innocent
or ambiguous actions which are normally incident to the conduct of a business
may, without more, be converted into unfair labor practices.
The four terminations were prompted by a sustained and undistracted discriminatory
intent.
III. THE OBJECTIONS TO THE ELECTION, AND THE CHALLENGED BALLOTS
The Union Petitioner's first objection to conduct affecting the results of the election
is that the Company refused to furnish an eligibility list of employees, and would not
let anyone else use the list of employees which its observer had. The Board has
not complained that the Company did not, "for use in identification of voters . .
prepare an alphabetical list of employees, indicating their job classifications," called
for in the Regional Director's letter transmitting notices of election. (Keith may
have been relying on a technical distinction when he testified, in accordance with the
Company's answer to the Union's objections, that an eligibility list was not requested
until 5 or 10 minutes before the election.) It was stipulated that,'in the absence of
a voting list, voters were required to sign an affidavit which set forth certain details
with respect to their eligibility. This procedure by the Board representative at the
election appears to have been acquiesced in by the Company and the Union. I
recommend that the first objection be overruled. It may be noted that this is not
the case of a party denied the opportunity to "retain, for its own use at the polls," 30
a list of prospective voters which it had prepared.
With respect to the .second objection, that the company observer at the election
kept a list of all who voted and of those who did not vote, and took the list away
over the objection of the Board agent, it appears that the Company had prepared
a sheet which was headed "Complete Voters List," and which contained 48 names,
among them some who were recognized or found to be supervisors. Some of the
names on the list received in evidence bear notations or symbols, not all of which
were explained; the number 1 appears alongside the names of the five employees
who attended the first meeting with the union representative, on December 3, 1962,
and a sixth employee, and it was explained that the Company's observer had been
instructed to challenge the ballots of these six. The Board agent told the Company's
observer that he was not supposed to have the list, but the latter would not- turn
it over.
28 324 F. 2d 329, 331 (C.A. 8).
29 N.L.R. B. v. Erie Resistor Corp., 373 U.S. 221, 227.
30 Bear Creek Orchards , 90 NLRB 286, 287.
1538 DECISIONS OF NA`FIONAL LABOR RELATIONS BOARD
The facts with respect to this objection were analyzed at the hearing on the
record. Except for one, Carter, every voter who was challenged as indicated in the
Regional Director's Supplemental Decision was marked with a penciled "C" on
the "Complete Voters List." No others were so marked. This is scarcely, nor is
there other, evidence that the Company's observer kept a list as claimed in the
objection, as distinguished from a list of all possible voters including many not
eligible, and of those whom he was to challenge. Nor has it been shown that the.
observer appeared to be recording the names of the voters. I recommend that the
second objection he overruled. Various cases referred to on the record have been
considered; they support this recommendation.
Considering at this point the fourth objection that the Company assigned the
Union's observer away from the plant on the date of the election and then mis-
directed the representative who went to find him, the facts are that the assignment
was made before the Company was informed a few minutes before the election that.
the employee in question would be the union observer, and that someone giving or-
receiving the street number (quite possibly the union representative who was un-
familiar with it) transposed some of the figures. That the building does not front
on the street of its address , being located behind a filling station is not a willfully
interfering factor chargeable to the Company. It appears finally that the observer
did arrive at the polling place a few minutes late . I recommend that this objection
be overruled.
The third objection alleges that the Company sent supervisors and noneligible em-
ployees to vote in the election , while the fifth objection alleges that these were in the
voting area during that time. There is no evidence that the Company sent any of-
these, and I therefore recommend that the third objection be overruled. Ignoring any
who allegedly went "toward" the polls, it is clear that several supervisors who had
been excluded from the unit as noted infra , other supervisors, and trainees , went to
the polls and voted. It may be questioned whether the fifth objection is sufficient
on its face. The cases distinguish between supervisors merely voting or otherwise
being in the area briefly, and their electioneering or standing around at or near the
polling place. If the objection as worded means that supervisors and other non-
eligible employees were in the area throughout the time of the election or for a
substantial period, there is no proof of this. The presence of some long enough
to vote would mean that they were there at some time during the time of the election;
but while their ballots may be challenged, this does not per se invalidate the election.
It is not claimed by the Company that, to preserve their rights as they claimed to be
rank-and-file employees eligible to vote in the election despite the contrary decision
and the unit as described, these who were and had been found ineligible, or any of
them, were present only long enough to attempt to vote and that they then departed.
Their presence "in the voting area during the time of the election" has not been
questioned . But neither has the objecting Union sustained its burden of showing that
supervisors electioneered or otherwise interfered with or limited the activities of
employees. I recommend that the fifth objection be overruled. While attempts
were made to elicit information not relevant to the objections or challenges, the-
evidence submitted is insufficient to support these objections and to warrant setting
aside the election.
We come now to consideration of the challenged ballots, of which there are 20;
all challenges except those of Sydow, Zella, and employee Book were by the petition-
ing Union . On the basis of the Decision and Direction of Election and Section
102.67(f) of the Board's Rules and Regulations, Series 8, as amended, and for
reasons stated at the hearing, the challenges to the ballots of Supervisors McInnis,
Green, and McCullars are sustained. While James E. Biles had been found to be
a supervisor , evidence received at the hearing indicates that his duties were changed-
after that finding and prior to the April 19 eligibility date, and that at the significant
time he was a precision sheet metal man (as Deasy had been ) and a rank -and-file
production employee; I shall therefore recommend that the challenge to James E.
Biles' ballot be overruled.
It was testified that William W. "Billy" Jones, in charge of quality control, was
hourly paid at the time but now , performing the same functions, is on salary; he
attends supervisors ' meetings and supervises one employee , Mikeska . B. W. "Bill"'
Jones is purchasing agent for all materials and office supplies, has an office, is on
salary, and directs truckdrivers and warehouse employees. Neither Jones was
eligible to vote , and I shall recommend that these challenges be sustained , and also
that to Schoenstein , who according to Keith was "production supervisor, instrument
shop."
The challenge to Carter , Franklin Biles, Mikeska , Fuller, and Spruiell were with-.
drawn at the hearing , and their ballots should be counted.
AMBOX, INCORPORATED 1539
The notice of election provides that those eligible to vote would be all production
-and maintenance employees, etc., "who were employed during the payroll period
-ending immediately preceding March 20, 1963." Dedman was hired on March 27,
.and was therefore ineligible. Brown was hired on March 18, and Book on the 19th.
As I stated at the hearing, although the challenges to the latter two were withdrawn,
the evidence indicates that they were ineligible since they were not employed during
the required period; these two challenges should be sustained. Since a payroll
.period ended on March 20, that immediately preceding March 20 could not have
included that date, and it therefore was the payroll period which ended on March 13.
(The Employer and the Union appeared at the hearing to think that these two ballots
would cancel or neutralize each other. Furthermore the recommendations herein
include a sufficient number of eligible voters and valid ballots to affect the result
aside from these two.)
Wiley was a trainee who was moved "from operation to operation or from place
to place." At some unspecified time he was in timekeeping and production control.
It has not been shown that he was a production or maintenance employee within the
unit during the required period. As much may be said of Byrd. These two chal-
lenges should be sustained, as should that to the ballot of Magee, a production plan-
ning manager who supervises employees and attends supervisors' meetings.
With the findings, supra, that Sydow and Zella had been discriminatorily terminated
the previous December, they continued as employees and were entitled to vote. I
shall recommend that the challenges to their ballots be overruled.
I recommend that the objections to the election be overruled. The 8 ballots now
to be counted may be sufficient to affect the result in favor of the Union since the
earlier tally showed 8 cast for the Union and 13 against. I recommend that the
Board direct the Regional Director to count the ballots of James E. Biles, Carter,
Franklin Biles, Frank M. Mikeska, William Fuller, Bobby Spruiell, Sydow, and
Zella, and to issue a revised tally.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce. _
V. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfar
:labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by terminating the employment of Sydow,
Zella, Deasy, and Spears, the latter thereafter reinstated discriminated against them
in respect to their hire and tenure of employment in violation of Section 8(a)(3) of
the Act. I shall therefore recommend that the Company cease and desist therefrom
:and from infringing in any other manner upon the rights guaranteed in Section 7 of
-the Act.- I shall further recommend that the Company offer to them immediate
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make them whole for any loss
-of pay sustained by each of them by reason of the discrimination against them, with
interest at 6 percent, computation to be made in the customary manner 31 I shall
further recommend that the Board order the Company to preserve and make avail-
able to the Board, upon request, payroll and other records to facilitate the checking
-of the amount of backpay due.
It has been further found that the Company, by sponsoring and promoting the
Employee-Management Relations Council and controlling its organization and proce-
dure, dominated and interfered with the Council's formation and administration and
contributed support to it in violation of Section 8(a)(2) of the Act. I shall there-
fore recommend that it cease and desist therefrom. In the absence of the evidence
that the Council has been freely selected by the employees as their collective-
bargaining representative,32 I shall further recommend that the Company withdraw
and withhold recognition from the Council and completely disestablish it as the
81 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB' 440; Republic Steel Corporation v.
N.L.R.B., 311 U.S. 7 ; F. W. Woolworth Company, 90 NLRB 289 , 291-294; lots Plumbing
.4 Heating Co.. 138 NLRB 710.
02 Cf. H. Eskin & Son, 135 NLRB, 666, 671 ; Signal Oil and Gas Company, 131 NLRB 1427.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of any employees for the purpose of dealing with the Company con-
cerning grievances, labor disputes, wages, rates of pay, or hours or conditions of
employment.
It has been further found that the Company, by interrogation, urging a company
union and promising benefits therefrom, surveillance, and requesting a copy of em-
ployees' statements to the Board and promising benefits therefor, interfered with,.
restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. I
shall therefore recommend that the Company cease and desist therefrom.
For the reasons stated in section III, above, I shall make the recommendations.
noted supra with respect to the objections to the election and the challenged ballots.
(With the lapse of time since the 1963 election, another can soon be held and, hope-
fully, the employees' current desire with respect to representation speedily
determined.)
Upon the basis of the above findings of fact and upon the entire record in the case,..
I make the following:
CONCLUSIONS OF LAW
1. District No. 37, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. Employee-Management Relations Council is a labor organization within the.
meaning of Section 2(5) of the Act.
3.'By discriminating in regard to the hire, tenure, and conditions of employment
of Robert J. Sydow, Julius V. Zella, Ewing M. Deasy, and Bobby G. Spears, thereby
discouraging membership in a labor organization, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the-
Act.
4. By sponsoring and promoting the Employee -Management Relations Council
and controlling its organization and procedure , thereby dominating and interfering.
with the Council's formation and administration and contributing support to it, the
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (2) of the Act.
5. By such discrimination, domination, and interference, and by interrogation,
urging a company union and promising benefits therefrom, surveillance, and request-
ing a copy of employees' statements to the Board and promising benefits therefor,.
thereby interfering with, restraining, and coercing employees in the rights guaranteed'
in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company, Ambox, Incorporated,
Houston , Texas, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District No. 37, International Association of
Machinists, AFL-CIO, or in any other labor organization, by discriminatorily ter-
minating the employment of any of its employees or discriminating in any other
manner in respect to their hire or tenure of employment or any term or condition
of employment.
(b) Sponsoring, promoting, or controlling the organization or procedure of Em-
ployee-Management Relations Council or any other labor organization of its em-
ployees, or otherwise dominating or interfering with the formation or administration
of, or contributing support to, a labor organization.
(c) Recognizing Employee-Management Relations Council or any other labor or-
ganization as the representative of its employees for the purpose of dealing with the
Company concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other terms or conditions of employment, unless and' until such labor
organization has been duly certified by the National Labor Relations Board as the ex-
clusive representative of such employees.
(d) Urging a company union or promising benefits therefrom, engaging in surveil-
lance, or requesting a copy of employees' statements to the Board or promising bene-
fits therefor.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act.
AMBOX, INCORPORATED 1541
2. Take the following action, which is necessary to effectuate the policies of the
Act:
(a) Offer to Robert J: Sydow, Julius V. Zella, and Ewing M. Deasy immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them and Bobby
G. Spears whole for any loss of pay they may have suffered by reason of the discrimi-
nation against them, as 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 and other records, as set forth in the section
entitled "The Remedy."
(c) Withdraw and withhold recognition from Employee-Management Relations
Council and completely disestablish it as the representative of its employees.
(d) Post at its plants in Houston, Texas, copies of the attached notice marked
"Appendix." 33 Copies of said notice, to be furnished by the Regional Director for
the Twenty-third Region, shall, after being duly signed-by the Company's representa-
tive, be posted by the Company immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices are not altered, defaced, or covered
by'any other material.
(e) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the receipt of this Decision, what steps have been taken to comply
herewith 34
It is further recommended that the objections to conduct affecting the election be
overruled, and that the Board direct the Regional Director for the Twenty-third
Region to count the ballots of James E. Biles, Harold Carter, Franklin Biles, Frank
M. Mikeska, William Fuller, Bobby Spruiell, Robert G. Sydow, and J. V. Zella, and
issue a revised tally.
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District No. 37, International Asso-
ciation of Machinists, AFL-CIO, or any other labor organization, by discrimi-
natorily terminating the employment of any of our employees or discriminating
in any other manner in respect to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT dominate, interfere with, or contribute support to Employee-
Management Relations Council . or any other labor organization of our
employees.
WE WILL NOT recognize Employee-Management Relations Council or any
other labor organization as the representative of our employees for the purpose
of dealing with us concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of employment, unless and
until such labor organization has been duly certified by the National Labor
Relations Board as the exclusive representative of our employees.
WE WILL NOT urge a company union on employees or promise benefits there-
from, engage in surveillance, or request a copy of employees' statements to the
National Labor Relations Board or promise benefits therefor.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist District No. 37, International Association of Machinists,
AFL-CIO, or any other labor organization, to bargain collectively through
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities.
WE HEREBY disestablish Employee-Management Relations Council as the
representative of any of our employees.
WE WILL offer to Robert J. Sydow, Julius V. Zella, and Ewing M. Deasy
immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges, and
make them and Bobby G. Spears whole for any loss of pay suffered as a result
of the interference , restraint , coercion , and discrimination against them.
All of our employees are free to become, remain , or to refrain from becoming or
-remaining members of District No. 37, International Association of Machinists,
AFL-CIO, or any other labor organization.
AMBOX, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. Capitol
8-0611, Extension 271, if they have any question concerning this notice or com-
pliance with its provision.
Teamsters, Chauffeurs , Warehousemen and Helpers Local 901,
IBTCW & H of America and Louis Velasco d/b/a Velasco
Trucking Co. Cases Nos. 24-CP-14 and 24-CC-87. May 12,1964
DECISION AND ORDER
On February 18, 1964, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, the Respondent and the
General Counsel filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Trial Examiner's Decision, the
-exceptions and briefs, and the entire record in these cases, and hereby
.adopts the findings, conclusions , and recommendations of the Trial
Examiner.
146 NLRB No. 177.