Ampruf Paint Co., Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1961

132 N.L.R.B. 87 (N.L.R.B. 1961)

AMPRUF PAINT COMPANY, INC. 87
those of the other employees. Accordingly, we shall include only the
quality control inspectors in the unit.
The foremen in the printing, cutting, dyeing, glueing, and mainte-
nance departments in the folding carton division, and the foremen in
the printing, finishing, shipping, and maintenance departments in the
shipping container division all have the same degree of authority.
They assign men to work, change them from one job to another and
reprimand employees for unsafe work or violation of company rules.
They attend the regular meetings of supervisors. They possess no
authority fo hire or discharge employees, but their various recom-
mendations concerning the status of subordinates are given much
weight by the Employer. Their production work is usually confined
to setting up the machines which the other employees will use. We,
find that the foremen are supervisors within the meaning of the Act.'3
We shall exclude them. As the record is inadequate to determine the
supervisory status of the shipping clerk, we shall permit him to vote
subject to challenge.
The watchman keeps unauthorized persons out of the plant. He
wears a uniform, carries a gun, and protects the Employer's property,
from theft. We find that he is a guard. We shall exclude him."
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at the Employer's
Turner Avenue and Hovis Road plants in Charlotte, North Carolina,
including expediters, timekeepers, production clerks, mailmen, sam-
plemakers, truck schedule and receiving clerks, quality control in-
spectors, factory order clerks and factory order clerk trainees, but
excluding estimators, sales service clerks, draftsmen, payroll clerks,
cost clerks, statistical clerks, production planning clerks, the assistant
to the director of quality control, office clerical employees, salesmen,
professional employees, watchmen, guards, foremen, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
la Beneke Corporation , 109 NLRB 1191.
14 Ertel Manufacturing Corp., 118 NLRB 1338.
Ampruf Paint Company, Inc. and Steel , Paperhouse & Chemical
Drivers & Helpers, Local No. 578, and Paint Makers Local
1232, AFL-CIO. Case No. f1-CA-4099. July 12, 1961
DECISION AND ORDER
On February 28, 1961, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
132 NLRB No. 6.
S8 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in and was engaging in certain unfair labor
.practices and recommending that it cease and desist therefrom and
-take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate Report, and the Respondent filed
a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ampruf Paint
Company, Inc., its officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Steel, Paperhouse & Chemical
Drivers & Helpers, Local No. 578, and Paint Makers Local 1232,
AFL-CIO,-or any other labor organization of its employees, by dis-
charging or refusing to employ its employees or in any other manner
discriminating against them in regard to hire or tenure of employment
or any term or condition of employment.
(b) Threatening employees with discharge or plant closing, evicting
employees because of union activities, and granting wage increases
to employees to influence their union activities.
1 We agree with the Trial Examiner 's finding that employee Landry was discharged be-
cause of his union activities , and that 14 employees who went on strike to protest Landry's
discharge were unfair labor practice strikers . In any event, even assuming that they had
the status of economic strikers on the assumption that Landry 's discharge was for cause,
they are entitled to reinstatement and backpay as they unconditionally offered to return
within a few hours after the strike commenced and before any of them had been replaced.
Member Rodgers agrees that Landry's discharge was unlawful and that the 14 em-
ployees were unfair labor practice strikers and entitled to reinstatement He therefore
finds it unnecessary to determine what reinstatement rights they might have on an
assumption that Landry' s discharge was for cause.
We find no sufficient evidence that potentially dangerous conditions were created in the
plant when the employees walked out. The failure of employee Rowland to turn off the
heating unit under the glue pot could not have led to any danger of fire. The fact that
a truck was left standing in the yard with the motor still running did not endanger the
safety of persons or property as the air brake was on and the ignition was turned off by
another employee shortly thereafter. Compare Valley Die Cast Corp, 130 NLRB 508.
Furthermore , no evidence was presented connecting any identified striker with the break-
ing of an office window in the Respondent ' s plant and the breaking of the car window of
one of the nonstriking employees . International Ladies' Garment Workers Union, AFL v.
N.L.RB. (B.V.D. Company, Inc.). 237 F. 2d 545 (C.A.D.C.).
AMPRUF PAINT COMPANY, INC. 89
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Steel, Paperhouse & Chemical
Drivers & Helpers, Local No. 578, and Paint Makers Local 1232, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or mutual -aid or
protection, or to refrain from any or all of such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mike Landry, Bobby Cape, Edward Cochran, Clifford
Hankins, Allen Jacobson, Harold Little, John Mettler, Alvin Ras,
Roy Riley, Roger Rowland, Gilbert Smith, Richard Stroup, Jack
Sumner, Charlie Varnum, and James West immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay they may
have suffered by reason of the discrimination against them in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) Offer to Mike Landry immediate occupancy of his former or
substantially equivalent living quarters or leased premises on the
same terms as previously enjoyed, and make him whole for any loss
he may have suffered by reason of his eviction by payment to him of
a sum of money equal to that which he has had to pay as rental for
other living quarters or leased premises from the date of the eviction
to the date he is offered occupancy, plus such additional expenses as
he may have incurred during said period as a direct result of his evic-
tion by the Company, less the amount he would normally have paid
to Respondent as rent for his living quarters or leased premises during
said period .2
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
2 The record shows that employee Landry was evicted from the premises rented to him
by the Respondent because said premises were used by him as "headquarters for cam-
paigns and concerted activities by a labor organization ." As it is clear that Landry's
eviction was due to his union activities, we order the Respondent to offer to him occu-
pancy of the same or equivalent premises and make him whole for any loss suffered by
the eviction . Kohler Co ., 128 NLRB 1062.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e)''Post at its plant in El Monte, California, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the'Regional Director for the Twenty-first Region, shall,
after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to 'insure that said notices are not altered, defaced, or covered by
other material.
,(f) Notify the Regional Director for the Twenty-first Region, in.
writing, within 10 days from the date of this' Order, what steps the
Respondent has taken to comply herewith.
8 In the event that this Order is enforced by a decree of a United atates Court of
Appeals, • there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Steel, Paperhouse &
Chemical Drivers & Helpers, Local No. 578, and Paint Makers
Local 1232, AFL-CIO, or any other labor organization of our
employees, by discharging or refusing to employ our employees
or in any other manner discriminating against them in regard to
hire or tenure of employment or any term or condition of em-
ployment.
WE WILL NOT threaten employees with discharge or plant clos-
ing, evict employees because of union activities, or grant wage in-
creases to employees to influence their union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Steel, Paperhouse
& Chemical Drivers & Helpers, Local No. 578, and Paint Makers
Local 1232, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
AMPRUF PAINT COMPANY, INC. 91
WE WILL offer to Mike Landry, Bobby Cape, Edward Cochran,
Clifford Hankins, Allen Jacobson, Harold Little, John Mettler,
Alvin Ras, Roy Riley, Roger Rowland, Gilbert Smith, Richard
Stroup, Jack Sumner, Charlie Varnum, and James West immedi-
ate and full reinstatement to their former or substantially equiv-
alent positions, without prejudice to their seniority or other rights
or privileges previously enjoyed, and make them whole for any
loss of pay they may have suffered by reason of the discrimination
against them.
WE WILL offer to Mike Landry immediate occupancy of his
former company-owned or substantially equivalent living quar-
ters or leased premises on the same terms as previously enjoyed,
and make him whole for any loss he may have suffered by reason
of his eviction by payment to him of a sum of money equal to that
which he has had to pay as rental for other living quarters or
leased premises from the date of the eviction to the date he is
offered occupancy, plus such additional expenses as he may have
incurred during said period as a direct result of his eviction, less
the amount he would normally have paid to us as rent for his
living quarters or leased premises during said period.
AMPRUF PAINT COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented, was tried before the duly designated
Trial Examiner in Los Angeles, California, on November 9, 10, and 17, 1960, on
complaint of the General Counsel and answer of Ampruf Paint Company, Inc.,
herein called the Company or Ampruf . The issues litigated were whether the
Company had violated Section 8(a) (1) and ( 3) of the Act by certain conduct more
particularly described hereinafter.
Upon the entire record, and my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a California corporation with its principal office and place of
business at El Monte , California , where it engages in the manufacture , sale, and
distribution of paint. During the 12-month period prior to the complaint the Com-
pany had a gross volume of business valued in excess of $500 ,000, and shipped prod-
ucts valued in excess of $50,000 directly outside the State of California. In the
same period it also received goods and materials valued in excess of $50,000, which
were shipped to it from points outside the State of California.
It is undisputed , and I find, that the Company is engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act and that the assertion of jurisdiction
is warranted.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the events hereafter related, the principal supervisors who acted for the Com-
pany were Robert Sencer, its president, and Mike Gildon, its plant superintendent.
Robert Morris, who I find was a supervisor, also played a part.'
H. THE LABOR ORGANIZATIONS INVOLVED
Steel , Paperhouse & Chemical Drivers & Helpers, Local No. 578, and Paint Makers
Local 1232, AFL-CIO, are both labor organizations within the meaning of Section
2(5) of the Act.
In the events hereafter related , the two unions acted jointly , so in this report
both unions are referred to jointly as the Union.
III. THE UNFAIR LABOR PRACTICES
A. The issues
It is the contention of the General Counsel that for approximately a week prior
to July 20, 1960, an employee of the Company named Mike Landry was active in
organizing the Union at the Company's plant, and because of such activity, the
Company discharged Landry on July 20, 1960. The complaint further alleges that
when Landry was discharged, a group of employees struck in protest of his discharge,
that on the same date they were discharged by the Company, and that since that date
the Company has failed and refused to reinstate either Landry or any of the em-
ployees who struck although their reinstatement was duly requested. The com-
plaint also alleges that Sencer, the president of the Company, and Morris, a
supervisor, made certain statements to the employees which violated Section 8(a) (1)
of the Act.
In its answer the Company denies the commission of unfair labor practices and
at the hearing contended that Landry was discharged for good cause on July 20,
1960, and that the other employees named in the complaint voluntarily quit their
employment?
B. The sequence of events3
1. The organizational efforts of Landry and the Union
It is undisputed that Mike Landry, the employee who is a principal in this con-
troversy, knew Robert Sencer, the president of the Company, before Landry went
to work for the Company. At that time Landry was employed by a painting con-
tractor named Booth, and, in the course of that employment, became acquainted with
Sencer. Sometime in January 1960,4 Landry asked Sencer if the latter would rent
to Landry a small house which stood across the street from the Ampruf plant; one
of the conditions of rental being that Landry would repair the house in his spare time.
Sencer and Landry agreed to a rental of this house on those terms. In February
1960, Landry became unemployed and he requested employment from Sencer.
Sencer agreed to hire Landry as a spray painter, and both the rental of the house
and the employment of Landry appear to have been prompted by Sencer's com-
passion for Landry's economic plight rather than by any business considerations.
Sencer in his testimony pictured himself as Landry's benefactor and Landry did not
deny that feature of Sencer's testimony.
Landry testified, and in this he was supported by the testimony of other employees,
that around the first week of July a group of the men at the plant began to talk
'While the supervisory authority of Morris is not free from all doubt, I am of the
opinion that he was a supervisor because of the following facts established by the evi-
dence. (1) About a month prior to the discharge of Landry, Sencer offered Morris a job
as "foreman." (2) In June 1960, Morris hired employee Stroup. (3) Morris, as part of
his duties, was responsible for the gathering of all delivery orders, the routing of all
trucks, the order of deliveries, and the correct loading of the trucks. Under the circum-
stances I find that Morris "responsibly directed" the truckdrivers.
2 These employees are 14 in number as follows: Bobby Cape, Edward Cochran, Clifford
Hankins, Allen Jacobson, Harold Little, John Mettler, Alvin Ras, Roy Riley, Roger
Rowland, Gilbert Smith, Richard Stroup, Jack Sumner, Charlie Varnum, and James West.
S At the hearing Mike Landry and employees Stroup, Jacobson, Cochran, Rowland,
Varnum, and Sliger testified as to this sequence of events, as did Union Representatives
Nicely, Craver, Zagajeski, and Buckley. The testimony of these witnesses was credible
and mutually corroborative. I credit their testimony fully and it Is the basis for the
findings of fact In this section of this report. Any discrepancies or differences In the
testimony of these witnesses Is of an inconsequential nature.
A All dates are in 1960.
AMPRUF PAINT COMPANY, INC.' 93'
about organizing a union . After discussing the matter for a few days, on approxi-
mately July 15, Landry telephoned to Paul Nicely, a business representative of the
Union, and made a date for Nicely to meet and discuss organizational plans with a
group of the employees at Landry's house. Pursuant to this telephone conversation
on Saturday, July 16, Nicely met Landry and seven other employees of the Company
at Landry's house across the street from the plant. At this meeting a quantity of
union authorization cards were supplied to Landry and on the following Monday,
July 18, Landry distributed these union authorization cards to the employees. On
the same evening a meeting was held at the home of employee John Sliger which
was attended by Landry and approximately 15 other employees of the Company.
In the course of his remarks , Nicely said that sometimes when a union organized
a plant the management discharged some employees in reprisal , and he told the
men that in the event that happened they were to notify him immediately. Also at
this meeting Nicely told the men that he would discuss the matter of recognition
with Sencer, president of the Company, on the next day.
It is undisputed that on July 19, Nicely, together with Union Representatives
Zagajeski and Buckley , met with Sencer at the Company 's plant . When they in-
formed Sencer that they represented a majority of the employees in his plant and
asked him for recognition as bargaining representative they met with a very angry
response. Sencer said that he didn't want his plant organized and that he would
rather close the doors than sign any agreement with the Union. After some further
discussion , Sencer cooled down and Nicely prevailed upon him to give the situation
further consideration, with the result that Sencer agreed to look over the standard
form of union agreement which Nicely agreed to provide.
Apparently also there was some talk among the employees about the organization
of the Union at this time, for, on the evening of July 18 or 19 , employees Stroup,
Lane, and Von Harten met with Supervisor Robert Morris in the washroom of the
plant . The men fell to discussing the efforts of the Union to organize the men.
Employee Lane stated that he anticipated that there would be an election among
the employees in which they could vote as to union representation. The men fell to
discussing the chances of the Union to prevail in the election. Employee Lane
stated that he thought the Union would win, and in discussing the situation went to
the timecard rack , in the presence of Supervisor Morris and the others , and ticked
off the timecards of the employees whom he felt were in favor of the Union. The
total of those in favor and those against the Union as shown by the timecards showed
a very close election . At that point , Morris said , "Well, if it's going to be that
close, I know of about four of them that probably instigated it. We'll just give them
the boot." 5
On the next day, July 20, Superintendent Gildon informed employee Cochran
that his wage rate had been raised from a $1.80 to $2 per hour. Cochran had re-
ceived a 20-cent increase in pay the week previous, so this increase was entirely
unsolicited . Superintendent Gildon also informed employee Rowland that he was
raised to $2 an hour and that "this doesn't have any bearing on this other thing."
This constituted a 30-cent hourly increase to Rowland.
2. The discharge of Landry; the walkout of the men
Around 9 a.m. on July 20, after Gildori had notified the other employees of
their raises, he notified Landry that he was discharged. And in discharging Landry
he asked if Landry thought "the other employees are going to follow you out of
this plant?" Landry, following Nicely's instructions, thereupon notified the other
union adherents, and the 14 employees named in the complaint thereupon con-
certedly left their jobs in protest to Landry's discharge. They walked across the
street and gathered at Landry's house to await the coming of Business Represent-
ative Nicely who was immediately notified of what had occurred. . In a matter of
moments, Representatives Nicely and Craver came to Landry' s house and discussed
the situation with the men. Then Nicely, Craver, and Landry went across the street
to the Company's plant and offices to see Sencer. When the men were admitted to
Sencer's office, Sencer immediately assailed Landry stating that be didn't want him in
the office, and that he was trying to organize a union and cause the ruin of Sencer's
business. Sencer also stated that he wouldn't have the "blankety blank blank" work-
ing for him again and told Nicely that he should get Landry to "blank" out of there.
On the advice of Nicely, Landry withdrew from the office.
5 Morris' version of this statement is that he said, "If the plant ever went union we'd
have to get rid of three or four guys and get some men in who are qualified to do the
job that they would be getting paid for " In the light of all the evidence, I think that
Stroup's version of this conversation is more credible.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nicely then requested Sencer to allow all the employees to return to work. Nicely
stated that their action had been somewhat hasty and he requested Sencer to allow
them to go back to work. Sencer refused.
In the discussion it appeared that Sencer felt outraged by the fact that he had, in
his estimation, befriended Landry and that Landry, by engaging in the organizational
activity, had betrayed him. In order to try to effect some sort of compromise of the
situation, Nicely then asked that all the men be reinstated except Landry, but Sencer
would not agree to this either. Senser took the position that the men had quit and
told Nicely that he "absolutely would not take them back."
On the next day, the striking employees began picketing at the Ampruf plant,
using Landry's house across the street as an organizational point for the pickets. On
July 22, the Company served a notice of termination of tenancy for the house which
Landry and his family occupied.
On July 25, Nicely and Union Representative Kopke again met with Sencer at his
office and again asked him to allow the employees except Landry to go back to
work. Sencer again refused to allow any of the men to return to work.
3. Interference, restraint, and coercion
On an occasion approximately 1 week after the start of the strike, Sencer was
standing in front of the plant and noticed that Landry and some of the other striking
employees were in front of Landry's house. He called to them and said that he
"would bolt the doors and nail the doors closed before he would let the Union enter
his plant." On another occasion, a few days later, employees Landry, Varnum,
Sliger, and several others were across the street from the plant when Sencer emerged
with Supervisor Weissmann. - On this occasion Sencer told the employees that "he
would close the doors before he would let us come back to work." On July 28, the
Company served upon Landry a "three-day notice to quit for violation of terms of
tenancy and committing of nuisance." This notice stated as to Landry, "In violation
of the terms of the tenancy which is for residential purposes, you have permitted
said premises to be used for non-residential purposes, to wit, as headquarters for
campaigns and concerted activity by a labor organization." 6 The house was sur-
rendered by Landry on July 29.
On the next day, Sencer left the premises of the plant in his automobile and
stopped at a point where Landry and some of the employees and their wives were
standing. Landry asked Sencer if he could sleep well at night after putting a family
out on the street. Sencer replied, "Mike, if you work for me for 5 years you could
never pay me back the money you made me lose trying to bring this union into my
plant." Thereafter Nicely conferred with Sencer on about seven occasions between
July 20 and October 10, and each time Nicely requested Sencer to reinstate the
strikers. Although Nicely did not ask for the reinstatement of Landry after his
original request, Landry personally, requested reinstatement on several occasions.
C. The defense
At the hearing it was the contention of the Company that Landry was discharged
because his work was-substandard. Sencer testified that on 15 or 16 occasions Super-
intendent Gildon told him that Landry's work was "not up to par, he wasn't doing
the job well, and he would like permission to let him go." Sencer testified that he
did not give permission to Gildon to discharge Landry because he was sympathetic
to Landry's financial plight. However, on this point Gildon testified that prior to
June 20 he had not asked Sencer for permission to discharge-Landry, and that from
the time Landry was given a wage increase, in about mid-March, until the morning
of July 20, Gildon never spoke with Sencer about Landry. Sencer testified that the
thing which triggered the discharge of Landry was a complaint by Booth, the paint-
ing contractor, who was Landry's former employer and who was a paint customer
of Ampruf. According to Sencer, on the morning of July 20, Booth came to the
Ampruf plant on business and again complained to Sencer that Landry was trying
to take some small jobs away from Booth. According to Sencer, on all previous
occasions when Booth had complained of this conduct of Landry, Sencer had refused
to discharge Landry, although that was the usual demand inherent in Booth's remarks.
However, on July 20, he came to the conclusion that he should discharge Landry
because Landry was creating trouble with Booth, a good customer of Ampruf.
This version of the discharge of Landry I find unacceptable. It shows a complete
reversal of attitude of Sencer toward Landry. Prior to July 20, according to Sencer,
he peremptorily brushed aside Booth's complaints about Landry, and on one occasion
6 General Counsel's Exhibit No. 3 in evidence.
AMPRUF PAINT COMPANY, INC. 95
stated to Booth that he was running Ampruf, and Booth should not tell him what
employees he should hire or fire. It is undisputed that on July 20 Sencer's atti-
tude toward Landry underwent a complete change, but under the circumstances it is
apparent that Sencer's new view of Landry was due to Landry's activity in organizing
the Union and the visit of Business Agent Nicely on the previous afternoon at which
visit Nicely informed Sencer that his employees had designated the Union as their
collective-bargaining agent. As stated previously, Sencer felt that in promoting the
Union Landry had betrayed Sencer and this was apparent in Sencer's testimony in
many places in the transcript. At one place Sencer virtually admitted that he held
Landry responsible for the union organization of the plant. He said, "It's like any-
one you do a favor for, you wouldn't expect turn to kick you in the teeth, and this is
exactly what he [Landry] did to me." 7 At another place Sencer testified, "I did
everything I possibly could for a complete stranger [Landry] and he did everything
he could to knife me in the back." A moment later, Sencer testified as follows, "I
don t think it was his place to question my men that were working for me five and
ten years as to whether they were happy on their job or weren't happy." 8 At an-
other point, Sencer did not deny that he made the statement attributed to him by
Landry in which Sencer said that if Landry worked for him for 5 years he would not
be able to pay Sencer for the money he had caused Sencer to lose by trying to bring
the Union into the plant.
Although the auditor is tempted to be sympathetic to Sencer in regard to Landry's
conduct toward him, Sencer's testimony establishes beyond doubt that Sencer re-
garded Landry as the instigator of the union movement in the plant, and that the
discharge of Landry was in reprisal for that activity.
Concluding Findings
From all the evidence it is clear that Landry was discharged because of his activ-
ities on behalf of the Union and in order to discourage the -organizational efforts of
the Union. It is likewise clear from the evidence that Sencer was extremely hostile
toward unions because of some experience he had with them in the past. At the
first interview with Nicely, Sencer told Nicely that he would rather close the plant
.than deal with the Union and later on he told the union representative to get Landry
to ". . . hell" out of his office. At a later date Sencer told a group of the striking
employees that he would bolt the doors and nail the doors closed before he would
let the Union enter the plant.
The evidence establishes that Landry was the chief organizer among the men. It
was he who first made contact with the Union on July 15 and who engaged in the
distribution of union authorization cards to the employees. He also attended the
organizational meetings of the employees at his own house and at - Sliger's. The
evidence establishes that it was common knowledge among the employees of the
plant that Mike Landry was one of the prime movers in organizing the Union. It
is likewise clear that when Nicely informed Sencer on July 19 that the Union had
been designated by a majority of the men that Sencer decided to take counter-
measures. This action consisted of granting unsolicited pay raises to two men and
of the discharge of Landry. These measures went awry when the 14 employees
decided to strike in protest of Landry's discharge. From all the evidence it is clear
that Landry was discharged because he had engaged in union activities and that the
14 men named in the complaint walked out of the plant and became unfair labor
practice strikers in protest of Landry's unlawful discharge. Later events, depicted
in the testimony, confirm this finding. When Nicely remonstrated with Sencer, and
asked that Landry be reinstated, Sencer peremptorily ordered Landry from his office
and took the position that the other men had voluntarily quit- their employment.
Even when Nicely pleaded with him to permit the return to work of the unfair
labor practice strikers, Sencer refused and he persists in that refusal to this day.
Only one conclusion can be drawn from Sencer's adamant and oft-repeated refusal
to reinstate the employees, that Sencer discharged both Landry and the striking
employees as of July 20, 1960, because of their concerted activity protected by
Section 7 of the Act. The strike, being in protest of Landry's unlawful discharge,
was an unfair labor practice strike, and the discharge of the strikers was a violation
of Section 8 (a) (3) and (1) of the Act .9
7 Transcript, page 425.
8 Transcript, pp. 481-483.
sNL.R.B. v. (Globe Wireless, Ltd., 193 F. 2d 748 (C.A. 9) ; N.L.R.B. v. Remington-Rand,
Inc., 130 F. 2d 919 (C.A. 2)
96 DECISIONS' OF -NATIONAL LABOR RELATIONS BOARD
The evidence also establishes that the Company violated Section 8(a)(1) of the
-Act by the following conduct of the following supervisory personnel:
(a) Supervisor Morris' statement to employees on or about July 18, that he knew
a number of employees were instigators of the Union and that they would be
discharged.
(b) President Sencer's and Superintendent Gildon's granting of wage increases
to certain employees on or about July 20, in connection with their refraining from
union or concerted activity.
(c) President Sencer 's threat to striking employees on or about July 27, that he
-would close the plant doors before he would reinstate any strikers.
(d) President Sencer 's eviction of employee Mike Landry from Landry's home
on or about July 28, because of Landry's membership in and activities in behalf of
the Union.lo
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section 1, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Company discriminated in regard to the hire and tenure
of employment of Mike Landry, Bobby Cape, Edward Cochran, Clifford Hankins,
Allen Jacobson, Harold Little, John Mettler, Alvin Ras, Roy Riley, Roger Row-
land, Gilbert Smith, Richard Stroup, Jack Sumner, Charlie Varnum, and James
West by discharging them on July 20, 1960, the Trial Examiner will recommend
that the Company offer to each of them immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority or
other rights and privileges, and make each of them whole for any loss of pay each
may have suffered by reason of said discrimination against him by paying to each
of them a sum of money equal to that which each would have earned as wages
from the date of the discrimination against him, July 20, 1960, to the date of his
full reinstatement as herein provided. This sum of money shall be computed in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
Since it has been found that the Company has engaged in certain other unfair
labor practices in violation of Section 8(a)(1) of the Act, it will be recommended
that it cease and desist therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Steel, Paperhouse & Chemical Drivers & Helpers, Local No. 578, and Paint
Makers Local 1232, AFL-CIO, are labor organizations within the meaning of Sec-
lion 2 (5) of the Act.
2. Ampruf Paint Company, Inc., is an employer engaged in interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By discharging Mike Landry, Bobby Cape, Edward Cochran, Clifford Hankins,
Allen Jacobson. Harold Little, John Mettler, Alvin Ras, Roy Riley, Roger Rowland,
Gilbert Smith, Richard Stroup, Jack Sumner, Charlie Varnum, and James West, thus
discriminating in regard to their hire and tenure of employment because they had
become members of the Union and engaged in union activities for the purpose of
collective bargaining or other mutual aid or protection, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
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.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
10 Indianapolis Wire-Bound Boo Company, d/b/a Cleveland Veneer Company, 89 NLRB
617.