Brown Truck and Trailer Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 999 (N.L.R.B. 1953)

BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 999
By questioning its employees with respect to their union membershipor activity Respond-
ent interfered with, restrained, and coerced employees in the exercise of their rights under
Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.
The complaint further alleges that Respondent from May 8 to June 26, 1952, unilaterally
granted wage increases to several of its employees without consulting the Union. The record
shows that certain wage increases were indeed granted during this period . Snow testi-
fied credibly, and I find, however, that these increases had been allowed by the Wage
Stabilization Board when the plant was opened on August 1, 1951, that they were made in
connection with that Board's authorization, that they had been intended from the first, and
were not made because of the advent of the Union in the plant. Assuming, however, that the
evidence warranted a different conclusion, such unilateral granting of wages, although viola-
tive of Section 8 (a) (1) of the Act, would not under the circumstances here constitute a
violation of Section 8 (a) (5), as being a refusal to bargain, since, as has been found above,
although the Union during this period did represent a majority of the employees no sufficient
demand for bargaining was made, and Respondent was under no obligation to bargain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with
the operations described in section I, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent by questioning its employees concerning their
activity in behalf of the Union has engaged in unfair labor practices, I will recommend that
it cease and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent did not fail or refuse to bargain collectively with the Union on May 12,
1952, or thereafter.
5. Respondent did not violate the Act by raising wages of the employees or by promising
to do so.
[Recommendations omitted from publication. ]
BROWN TRUCK AND TRAILER MANUFACTURING COM-
PANY, INC., NEWEL MANUFACTURING COMPANY, INC.,
AND JOSEPH L. BROWN and UNITED AUTOMOBILE, AIR-
CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 11-CA-500. August 26, 1953
DECISION AND ORDER
On May 26, 1953, Trial Examiner Charles W. Schneider
issued his Intermediate Report in the above-entitled proceed-
ing, sustaining the complaint, in part , as to Respondent, Brown
Truck and Trailer Manufacturing Company, Inc. ( hereinafter
106 NLRB No. 158.
1 000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called Brown Company ) and dismissing it, in part . As remedial
action for the unfair labor practices found , he recommended
that the Brown Company be ordered to cease and desist there-
from and that it , and its subsidiary - successor , Respondent
Newel Manufacturing Company, Inc . (hereinafter called Newel),
take certain affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that
Respondent Joseph L . Brown, an individual , had not committed
any of the unfair labor practices attributed to him in the com-
plaint , and recommended , in effect , that the complaint against
him be dismissed . Thereafter , the Respondents and the General
Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
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 Farmer and Members Hous-
ton and Peterson .
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 Intermediate Report , the exceptions and
briefs, and the entire record in this case , and hereby adopts
the findings , conclusions , and recommendations of the Trial
Examiner, with the following additions , corrections, 1 and
modifications.
1. We agree with the Trial Examiner that the closing of the
Brown Company ' s Charlotte plant and the transfer of its
operations from Charlotte to Monroe were not motivated by
an intention to avoid collective bargaining with, or discourage
membership in, the Union , but were predicated rather upon
economic considerations . We find , therefore , as did the Trial
Examiner , that the Brown Company did not violate Section 8
(a) (3) of the Act by discharging the Charlotte plant employees
at the time of the shutdown of the Charlotte operations or by
its failure to employ them subsequently at Monroe.
2. We also find , in substantial agreement with the Trial
Examiner , that the good - faith discharge of the Brown Com-
pany's obligation to the employees ' statutory bargaining
representative required the former , at least , to advise the
Union of the contemplated move and to give the Union the
opportunity to bargain with respect to the contemplated move
as it affected the employees , such as the placement of the
Charlotte employees in positions at Monroe.'
1 We make the following corrections of inadvertent errors appearing in the Intermediate
Report which do not affect the ultimate conclusions:
At page 1012 , lines 6 and 7: The names of the employees involved in these conversa-
tions with Hughes should read Hamrick and Huffman respectively.
At page 1014 , footnote 4: This testimony was by Lightsey , not Gregory.
At page 1015 , line 1; page 1018, line 52: The name of the employee involved appears
in the record as Herbert Hoover Gregory, not Everett Gregory.
2Brown-McLaren Manufacturing Company , et al ., 34 NLRB 984
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1001
We agree with the Trial Examiner that from June 16, 1952,
and at all times material thereafter, the Union represented a
majority of the Charlotte plant employees in an appropriate
unit . In the 18 years that this Board has administered the Act,
it has consistently--and with judicial approvals and legislative
acquiescence 4 --held that a union 's majority status can prop-
erly be determined by membership or authorization cards.
Our dissenting colleague , however-- as we read his dissent--
would for this and future cases confine the use of such cards
for purposes of determining majority status to situations in
which the employer has undertaken by unfair labor practices
to dissipate that majority and make afair election impossible. 5
Relying upon a phrase from a Board decision which had
reference to a context of overlapping designations to 2
competing unions- -a far cry from the situation here, where
there is only 1 union designated by 22 out of 29 employees
and the Employer in rejecting the last bargaining request
raised no question about its majority--the Chairman would
rule that the cards are of no probative effect . It seems to us
that to so hold is to engage in administrative legislation, a
practice the Supreme Court has enjoined.6
As noted in the Intermediate Report , when the Brown Com-
pany, on June 18, 1952, received the Union' s initial request to
bargain, its agents did not mention its relocation plans at that
time, either to the Union or to the Board . On the contrary, the
Brown Company' s agents deliberately created the impression
that the Company was about to abandon its box-plant operations
completely. They acted similarly on August 7, 1952, when the
Union explicitly renewed its bargaining request . Although the
Brown Company asserts that it doubted in good faith the fact
of the Union's majority status among the Charlotte employees,
we are convinced , upon the record, that the Brown Company's
failure to bargain was based upon an erroneous belief that the
impending move relieved it of any obligation to bargain with
a N L. R B. v. Bradford Dyeing Association, 310 U. S. 318, 338-340; N. L R. B. v.
Louisville Refining Co., 102 F . 2d 678 , 680 (C. A. 6), certiorari denied , 308 U. S. 568 ; Solvay
Process Co v. N L. R. B., 117 F. 2d 83, 86 (C. A. 5), certiorari denied, 313 U. S 596;
Lebanon Steel Foundry v . N. L. R. B., 130 F. 2d 404, 407-408 (C. A. D. C.), certiorari
denied, 317 U. S. 659; Joy Silk Mills, Inc. v. N. L R. B, 185 F. 2d 732, 741 (C. A. D C.),
certiorari denied, 341 U. S. 914. N. L R. B. v. Inter - City Advertising Co., 190 F. 2d 420,
421 (C A. 4), certiorari denied, 342 U S. 908; N. L. R. B. v. W. T. Grant Co., 199 F. 2d
711, 712 (C. A. 9), certiorari denied, 344 U. S. 928; Motorola, Inc. v. N. L. R. B., 199 F.
2d 82, 83 (C. A. 9), certiorari denied, 344 U S. 913; N. L R. B. v. Everett Van Kleeck and
Company, 189 F 2d 516, 517 (C. A. 2); N. L. R B. v. Kobritz, 193 F. 2d 8, 14 (C A. 1);
N. L. R. B. v. Epstein, 203 F. 2d 482, 484 (C. A. 3).
4As initially proposed, the House would have limited an employer 's obligation to bargain
to those cases wherein the employees ' representative had previously been certified by the
Board or had been voluntarily recognized by the employer ( See: H R. Rep . No. 245, 80th
Cong , 1st Sess. 30 (1947) ) However, the Act, as passed, clearly rejected this initial proposal
and left unchanged the obligation to bargain imposed by the Wagner Act as interpreted by
the courts (See: H Conf. Rep. No 510, 80th Cong., 1st Sess. 41 (1947).)
5 It is difficult to see how the existence or nonexistence of contemporary unfair labor
practices could in any way affect the probative value of otherwise authentic membership cards
in the establishment of a union 's majority status.
6 Colgate- Palmolive- Peet Co. v. N. L R. B., 338 U. S. 355.
1 002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, rather than upon any doubt as to the Union's
majority status. Such action was a rejection of the collective-
bargaining principle and constituted conduct in derogation of
the Union' s status as the majority representative of the Brown
Company's employees.' We conclude therefore that at all times
on and after June 18, 1952, the Respondent refused to bargain
collectively with respect to the employees at the Charlotte
plant within the meaning of Section 8 (a) (5) and (1) of the Act.
We do not, however, adopt so much of the Intermediate Report
as is predicated upon the conclusion that at all times since the
shutdown of the Charlotte operations the Union was and is the
statutory representative of the Monroe plant employees. It is
perhaps possible that, if the Brown Company had fulfilled its
obligation to bargain with the Union with respect to the reloca-
tion of the Charlotte plant employees at Monroe , an agreement
may have been concluded resulting in the transfer of the em-
ployees in question. We cannot assume, however, that, even if
such agreement had been reached, Charlotte employees would
have transferred to Monroe in numbers sufficient to constitute
a majority of the employee complement at the Monroe plant.
In the light of these circumstances and the lack of antiunion
motivation behind the move to Monroe, we do not believe that
we should attribute to the Union statutory representative status
in the absence of affirmative evidence that a majority of the
employees at the Monroe plant have, in fact, designated the
Union as their bargaining representative.8
3. With respect to the alleged discrimination against Dargan
Pruitt, the Trial Examiner found that the Respondent had
discriminatorily refused to reemploy him within the meaning
of the Act at the time the Charlotte plant was temporarily
reopened. We do not agree that the Respondent violated the
Act in discharging Pruitt. Our disagreement is not based upon
rejection of the Trial Examiner's credibility findings, but
upon the inferences to be drawn from the record testimony
relating to the discharge.
The record established, and the Trial Examiner found, that
Pruitt had an alcoholic and family nonsupport record. The
Trial Examiner also found that the Respondent knew, at the
time it refused to reemploy Pruitt, that the Charlotte plant
would be shut down within a short time. The Respondent con-
tends that Pruitt' s personal record and the impending closing
of the plant were the motivating factors in its refusal to
reemploy Pruitt.
Although the question of motivation is not free from doubt,
we are not persuaded, upon the record, that the preponderance
of the evidence establishes that the Respondent was motivated
in discharging Pruitt by his union activities rather than by the
reasons given by the Respondent. Accordingly, we shall dismiss
the allegations of the complaint with respect to Dargan Pruitt.
TMount Hope Finishing Company, et al., 106 NLRB 480.
8 Ibid.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1003
THE REMEDY
Inasmuch as the Respondent Newel is the successor of the
Respondent Brown Company, we shall hold it jointly and
severally responsible for the effectuation of the remedial
provisions we deem appropriate herein. 9
We shall, of course, enjoin the commission of the unfair
labor practices found through the usual cease and desist pro-
visions in our order . Furthermore , to effectuate the policies
of the Act, we deem it necessary to direct the Respondents to
take affirmative action of a kind which will remove the effects
of the unfair labor practices found and to effectuate, to the
extent possible , the condition which would have existed had the
unfair labor practices not been committed.
We have found that the Brown Company unlawfully deprived
the Union of any opportunity to bargain respecting the reloca-
tion of the Charlotte plant employees at the Monroe plant. We
shall therefore order the Respondents to bargain with the
Union for the purpose of reaching an agreement as to the
method , terms, and conditions by which the employees em-
ployed in the following unit, on or after July 3, 1952, may, if
they desire , obtain employment at the Monroe plant . We find,
as did the Trial Examiner , that the appropriate bargaining
unit includes all production and maintenance employees of the
box plant of Brown Truck and Trailer Manufacturing Com-
pany, Inc., at Charlotte, North Carolina, but excluding all
other employees , office clerical employees , professional em-
ployees, guards , and supervisors as defined in the Act, as
amended , who did not thereafter obtain employment at the
Monroe plant , and whose work at the Charlotte plant ceased as
a consequence of the Brown Company's relocation of its
operations at Monroe . However , because , as noted above, we
are unable to anticipate the number of Charlotte employees
who will accept employment at Monroe in the event of an
agreement between the Respondents and the Union making
such employment available , and because a different labor
organization now claims to represent a majority of the Monroe
plant employees , " we shall not issue our usual order requir-
ing the Respondents to bargain with the Union as the exclusive
representative of the Monroe plant employees . Rather, upon
compliance with our order , we think that the question of
majority representation can best be resolved by an election
among the Monroe plant employees.
9Ilie designation, Respondents, refers hereinafter to the Brown Truck and Trailer Manu-
facturing Company , Inc., and Newel Manufacturing Company, Inc.
ioOn or about April 13, 1953, the United Brotherhood of Carpenters and Joiners of America,
Local 2871 , AFL, filed a petition in Case No . 11-RC-523 , seeking to represent a unit of all
production and maintenance employees at the Monroe plant. The petition was dismissed by the
Regional Director on or about April 15, 1953 , on the ground that the complaint in the instant
case was still pending before the Board.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Re-
spondent, Brown Truck and Trailer Manufacturing Company,
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO,
as the exclusive representative of all production and main-
tenance employees of the box plant of Brown Truck and
Trailer Manufacturing Company, Inc., at Charlotte, North
Carolina , but excluding all other employees , office-clerical
employees , professional employees , guards, and supervisors
as defined in the Act, as amended, with respect to the method,
terms, and conditions by which the said production and main-
tenance employees may obtain employment at the Monroe,
North Carolina, box plant of the Newel Manufacturing Com-
pany, Inc.
(b) In any like or similar manner, or by means of threats
and warnings , interfering with, restraining, or coercing its
employees in the exercise of the right to self - organization, to
form labor organizations , to join or assist United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO,
or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other
concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such 'ctivities , 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.
2. It is hereby further ordered that Brown Truck and
Trailer Manufacturing Company, Inc ., and Newel Manufactur-
ing Company, Inc., take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Bargain, upon request, with the United Automobile, Air-
craft & Agricultural Implement Workers of America, CIO,
with respect to the method, terms, and conditions by which the
production and maintenance employees formerly employed by
the Brown Truck and Trailer Manufacturing Company, Inc.,
at its box plant in Charlotte, North Carolina, may obtain
employment at the Monroe, North Carolina , box plant of the
Newel Manufacturing Company, Inc., in accordance with the
section of this Decision and Order entitled , "The Remedy."
(b) Post at the plant of Newel Manufacturing Company, Inc.,
Monroe, North Carolina , copies of the notice attached hereto
as an Appendix. 11 Copies of such notice, to be furnished by the
"In the event this Order is enforced by a decree of the United States 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."
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY , INC. 1005
Regional Director for the Eleventh Region, shall , after being
duly signed by the Respondents ' authorized representatives,
be posted by the Respondents immediately upon receipt thereof
and be maintained for sixty ( 60) consecutive days in conspic-
uous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Mail to each individual within the group described in
paragraph 2. (a) above, a copy of the notice attached hereto as
an Appendix.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within ten (10 ) days from the date of the Order, as to
what steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondent
Joseph L. Brown, individually, committed any unfair labor
practices and that the other Respondents herein committed
unfair labor practices by discharging or laying off Dargan
Pruitt, Brady Carriker, and Herbert Hoover Gregory, by
shutting down the Charlotte , North Carolina , plant, or by
transferring the box-plant operations to Monroe , North Caro-
lina.
Chairman Farmer , dissenting:
I do not agree that Respondent has refused to bargain within
the meaning of Section 8 (a) (5) of the Act.
This is a case in which the employer was forced for busi-
ness reasons to close its ammunition box plant at Charlotte,
North Carolina. Shortly before the plant was shut down, the
charging union petitioned for a Board election. The employer
agreed to the election , but when he questioned the advisability
of holding it in view of the imminence of the shutdown, the
election was postponed by mutual agreement and was never
held. The employer thereafter closed the plant and, again, for
business reasons , established a new plant at Monroe, North
Carolina , and hired a new complement of employees.
The majority has found that Respondent violated Section 8
(a) (5) by failing to advise the petitioning union of the estab-
lishment of the new plant at Monroe , and thus depriving the
Union of an opportunity to bargain as to the possible transfer
of employees from Charlotte to Monroe.
I do not find it necessaryto decide here whether an employer
who closes one plant and opens another at a different location
has an obligation to disclose all of his business plans to the
union, if any exists, which is the statutory representative of
his employees . I dissent in the case on the more narrow, but
fundamental , ground that the Union had not established its
right to act as the exclusive representative of the employees
at the Charlotte plant.
As proof of its majority representation the union offered in
evidence signed authorization cards. But such cards are an
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"unreliable method of determining majority status of a union
. . " 12 Because of this fact and the ready availability of the
Board ' s election machinery to determine the majority issue,
the Board has turned more and more to the use of the secret
ballot as the most conclusive and satisfactory method for
determining whether or not a union ' s claim to majority status
is well founded . In this case , the union and the employer
agreed to a consent election , thus evidencing their desire to
have the issue of the Union ' s majority status decided at the
polls. The election was never held because of the shutdown of
the plant , and consequently , in my view, the Union never
properly established its right to represent the Charlotte
employees . Since a finding of exclusive representation rights
is a statutory prerequisite to a finding of refusal to bargain, I
see no basis for finding a violation of Section 8 (a) (5).
In reaching this conclusion , I am mindful of the Board and
court decisions which hold that a Board election is not the
exclusive means of determining a union ' s majority status, and
that the union -membership cards may, under certain limited
circumstances , constitute sufficient evidence under the statute
to demonstrate that a union is the majority representative.
But I am of the opinion that reliance upon such secondary
evidence --demonstrably less dependable than a secret ballot
election - - should be limited to extraordinary circumstances
such as where employer has, in an effort to avoid his obliga-
tions under the statute , engaged in unlawful conduct dissipating
the union ' s membership and making it impossible to hold a
free and uncoerced election.
I feel that we must be on guard lest we apply this principle
too readily and so routinely as to undermine our election
machinery and to deprive employees of their freedom to choose
their bargaining agent in a manner which can leave no doubt
as to their real choice--a secret - ballot election.
I take it that the majority of the Board would seat the union
here because Hughes , the box -plant superintendent, made
certain statements which violated Section 8 ( a) (1) of the Act.
While I agree with this finding, and that a cease and desist
order should be entered , I do not think that Hughes' conduct,
which was contrary to instructions given him by President
Brown , was the moving cause for the Union's failure to gain
representation rights. It seems to me plain that the election
which had been agreed to and which would have resolved the
majority issue was not held because the plant was about to be
shut down and not because of any coercive activity on the part
of Hughes . This is simply a case in which the election could
not be held because the Union ' s petition came too late in view
of the closing of the plant . Nor do I believe that , in the con-
12 Sunbeam Corporation, 99 NLRB 546, 550. Although the Board used the above language
in connection with solicitation of cards by competing unions, I believe that the phrase used
accurately describes the general unreliability of such cards as an indicia of majority repre-
sentation.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1007
text of this case , we are justified in finding that Hughes' con-
duct was part of any scheme on the part of Respondent to delay
the election and defeat the Union ' s efforts to obtain represen-
tation rights. If Respondent had wished to forestall an election
until the plant closed , it need only have insisted on its statu-
tory right to a hearing on the election petition , but instead
Respondent agreed to a consent election , which was postponed
by mutual consent, and not because of any unfair labor prac-
tices. I see no reason for conjecture as to whether or not
Hughes' antiunion conduct would have interfered with the
holding of a free election since the closing of the plant pre-
vented in any event an election from being held . In these
circumstances , I would not use the 8 ( a) (1) finding as a con-
venient makeweight for finding a violation of Section 8 (a)
(5).13
13D H. Holmes Company , Ltd. v . N L. R B., 17.9 F . 2d 240 (C. A 5); N . L. R B. v John
Deere Plow Co. of St. Louis , 187 F. 2d 26 ( C. A. 5), adopting the dissenting opinion of
Members Reynolds and Murdock in 82 NLRB 69 in reversing 8 (a) (5) finding ; Roanoke Public
Warehouse , 72 NLRB 1281 ; Chamberlain Corporation , 75 NLRB 1188 , see Member Murdock's
dissenting opinion in The Cuffman Lumber Co., Inc ., 82 NLRB 296.
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, as amended , we hereby notify
our employees that:
Brown Truck and Trailer Manufacturing Company, Inc.,
will not, and will not through its subsidiary , Newel Manu-
facturing Company, Inc., by means of threats and warn-
ings, or in any manner interfere with , restrain , or coerce
its employees in the exercise of the right to self -organi-
zation, to form labor organizations, to join or assist
United Automobile , Aircraft & Agricultural Implement
Workers of America, CIO , or any other labor organiza-
tion, to bargain collectively through representatives of
their own choosing , and to engage in, or refrain from
engaging in, concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL bargain collectively , upon request , with the
United Automobile , Aircraft & Agricultural Implement
Workers of America, CIO, with respect to the method,
terms, and conditions by which the following persons may
obtain employment at the Monroe, North Carolina, box
1 008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant of the Newel Manufacturing Company, Inc., all
persons who , on or after July 3, 1952 , were production
and maintenance employees at the box plant of Brown
Truck and Trailer Manufacturing Company, Inc., Char-
lotte, North Carolina , but excluding all other employees,
office -clerical employees , professional employees,
guards, and supervisors as defined in the Act, as amended,
who did not thereafter obtain employment at the Monroe
plant, and whose work at the Charlotte plant ceased as a
consequence of the relocation of the box-plant operations
of Brown Truck and Trailer Manufacturing Company, Inc.,
at Monroe.
All our employees are free to become, remain, or refrain
from becoming or remaining members of any labor organiza-
tion, except as that right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act.
BROWN TRUCK AND TRAILER MANUFACTURING
COMPANY, INC.,
Employer.
Dated ........... By ....................... .........
(Representative ) (Title)
NEWEL MANUFACTURING 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
Upon complaint, bill of particulars and answer, this proceeding, brought under Section 10
(b) of the National Labor Relations Act (61 Stat. 136), was heard in Charlotte, North Carolina,
from March 23 to 27, inclusive, 1953, upon due notice. The complaint, issued on February 27,
1953, by the General Counsel of the National Labor Relations Board, and based upon a charge
filed by the union, alleged in substance that the Respondents had engaged in unfair labor
practices proscribed by Section 8 (a) (1), (3), and (5) of the Act by discharging and refusing
to reinstate employees, by closing and moving their box plant from Charlotte, to Monroe,
North Carolina, and by refusing to bargain with the Union.
All parties were represented at the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally,
and to file briefs and proposed findings and conclusions. A motion by the General Counsel
to amend the complaint to allege an additional violation of Section 8 (a) (3) with respect to
the termination of Harry Lightsey about August 7, 1951, was denied. Motions to dismiss by
the Respondents are disposed of by the following findings and conclusions.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1009
Upon the basis of the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENTS
At all material times Brown Truck and Trailer Manufacturing Company, Inc., a North
Carolina corporation located at Charlotte , North Carolina , has been engaged in the manu-
facture and sale of truck bodies, truck trailers , and related products . Until about August 29,
1952, Brown Truck and Trailer Company also operated an ammunition box manufacturing
plant in Charlotte, North Carolina.
About August 25, 1952, Newel Manufacturing Company, Inc , also a North Carolina, cor-
poration , was formed to take over the operation of Brown Truck and Trailer Company's
box plant Brown Truck and Trailer Company owns all the stock of Newel Manufacturing
Company Joseph L. Brown and his wife own all the stock of Brown Truck and Trailer
Company . Joseph L. Brown is the president and the directing head of both companies.
Brown Truck and Trailer Manufacturing Company, and Newel Manufacturing Company,
and each of them, in the course and conduct of their business operations , cause and have
continuously caused a substantial amount of raw materials , supplies , and equipment used by
them in their operations , to be purchased , transported , and delivered in interstate commerce
from and through the States of the United States, other than the State of North Carolina, to
their Charlotte and Union County, North Carolina, operations, respectively, and cause and
have continuously caused a substantial amount of their finished products , of a value of more
than $ 25,000 annually, to be sold, transported , and delivered in interstate commerce to and
through the States of the United States, other than the State of North Carolina, from their
Charlotte and Union County, North Carolina, operations, respectively.
The ammunition boxes manufactured by the corporate respondents were and are for the
use of the United States Armed Forces.
It is found , contrary to their contentions , that the Respondents are engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES i
A. Introduction
Respondent Brown Truck and Trailer Company, Respondent Joseph L. Brown, president,
is, and apparently for some years has been , engaged in Charlotte in the manufacture of truck
bodies and trailers . As a result of the program of material allocations set up following
the outbreak of the Korean war, the Truck Company ' s supply of aluminum and steel (its
principal materials) was substantially reduced. In March 1951 the Truck Company, without
any prior experience in such kind of business, set up and equipped another plant, separate
from but near its truck plant, for the manufacture of ammunition boxes for the United States
Armed Forces. In this box business the Truck Company was a sub-subcontractor, that is,
it produced under contract with a subcontractor of the prime contractor. In August 1952,
in order to keep the truck and box operations corporately separated , Newel Manufacturing
Company, a subsidiary and creature of Brown Truck Company, was set up to conduct the box
business. In the same month, on August 29, 1952, the box plant was removed to Monroe,
North Carolina , some 30 miles distant from Charlotte , where it is presently operating In
substance , the denied allegations of the complaint are that the Respondents refused to bargain
with the Union; and also that they closed down the box plant on July 3, 1952, moved it to
Monroe on August 29, and engaged in various acts of discrimination and interference, in
order to combat and defeat the Union at the box plant The truck plant and its employees,
some 18 in number , are not involved in this proceeding . At material times the box plant
employed around 80 employees at Charlotte.
IExcept where otherwise indicated, the following findings are based on uncontradicted
testimony or evidence
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The financial position of the Company
The Respondents' venture into the box business was financed by the City Savings Bank of
Charlotte, by loan secured by mortgage on all the Truck Company's machinery, equipment and
inventory, and assignment of its contracts. In connection with the loan, the bank has constant
access to the Company's operating records and its financial position Checks in payment of
contracts performed by the Company are drawn jointly to the order of the Company and the
bank. Some of the Company's bills, such as its lumber bills, are invoiced directly to, and paid
by, the bank.
From the beginning, the box plant experienced financial difficulty, due, as I evaluate the
evidence, in part to inefficient production, high labor turnover, (250 to 300 percent), in part to
apparent breaches of contract or commitments on the part of some of its customers, and in
part to the cost of lumber, its principal material During the latter part of 1951, R. S. Folger,
vice president of the bank, told Respondent Brown several times that he would have to reduce
his production costs in the box plant, even if it meant moving to outlying areas where labor
and material costs were cheaper. According to the testimony, the prevailing scale for common
labor in the city of Charlotte is $1 per hour, in outlying areas it is $ 75. The outlying areas
are closer to lumber sources, resulting in less haulage costs In addition, in some (though not
in all) cases, the Respondents had to deal through lumber brokers in Charlotte, resulting in
increased costs; whereas in the outlying areas they could buy directly from the manufacturer.
On several occasions President Brown addressed the employees about the problem of
excessive labor costs, exhorted them to cooperate in reducing manufacturing time to a desired
competitive standard, and promised the employees a bonus if they could reduce the labor ex-
penditure per box to a point halfway between the cost and the desired standard. This goal was
never achieved, however
By the end of 1951, the financial statements show, and the unimpeached and credited testi-
mony is, the Truck Company was insolvent, that is, its liabilities exceeded its assets
($90,323.56 end $88,076.71, respectively); it sustained a net operating loss of over $14,000
in 1951, and it owed the City Bank some $37,000. By February 1952 the bank debt had risen
to $50,000.
In early February Vice-President Folger of the Bank called Respondent Joseph Brown to
his office to discuss the Company's financial condition, and told Brown that the business was
headed for bankruptcy unless radical measures were taken. Folger suggested that Brown
survey facilities in the surrounding area with the view of moving the plant, in order to reduce
costs.
In March 1952 losses continued to accelerate, the bank debt rose to $ 75,000, and reached
a point in excess of authorized limits so as to require approval of the State Banking Com-
missioner for the bank to continue carrying it. In that month Folger again called Brown to
his office, and this time told him that he would have to move the plant. During the succeeding
months Brown and Forrest Hughes, superintendent and operating head of the box plant, made
numerous trips to towns in North Carolina and adjacent South Carolina seeking a location. 2
C. The Union organization
About June 7 or 9, 1952, the Union began an organizational campaign among the Respond-
ents' employees in both the box and the trailer plant, on June 18, 1952, it asked the Re-
spondent Truck Company for recognition, a request which the Truck Company, by Brown,
referred to the Board; and on June 19 the Union filed a petition for certification as bargaining
representative As is more fully detailed hereinafter, despite instruction from President
Brown to remain neutral, the advent of the Union evoked opposition from Superintendent
Hughes of the box plant, including threats by him that the plant would close or move. At the
same time Hughes adopted a policy of not granting loans and merit increases to employees
There is no evidence of any opposition to the Union at the adjacent trailer plant. Supervision
of the box plant is largely left to Hughes Brown devoting himself principally to supervision of
the trailer plant.
2 The findings in the above subsection as to the financial condition of the company Folger's
statements to Brown, and the hunt for other locations are based principally on the testimony
of Vice-President Folger, Brown, and various persons from surrounding towns whom
Brown and Hughes contacted in looking for space.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1011
Following the filing of the Union's petition for certification, a conference with respect
thereto was held between representatives of the Board, the Truck Company, and the Union, at
which agreement was reached for consent elections President Brown pointed out at this con-
ference the difference in the two operations and, as a consequence, it was agreed that the
truck and the box plants should constitute separate election units President Brown questioned
the advisability of any election at the box plant, for the stated reason that the Respondent in-
tended to close it in the near future. He did not, however, indicate that it was also the Re-
spondents' intention to reopen elsewhere But upon the suggestion that if the box plant closed,
the election in that unit could be called off, agreement was reached for a consent election in
the two units, the election to be held on July 11; and under date of June 24, consent agree-
ments to that effect were executed.
On July 3, 1952, the box plant closed for lack of shipping orders. The General Counsel con-
tends that the shutdown was for discriminatory reasons, but in my judgment, the preponderance
of the evidence does not substantiate that assertion. On the same day, because of the curtail-
ment of operations, the Truck Company and the Union, in a joint telegram to the Regional
Office of the Board, agreed to an indefinite postponement of the box-plant election.
The election at the trailer plant was held on the scheduled date, July 11; the Union received
a majority of the votes cast, and in due course was certified. The election at the box plant
has never been held.
About July 27, 1952, upon the receipt of a delivery order for some 10,000 boxes, the box
plant reopened for several weeks with reduced complement Upon the completion of this order
the Charlotte box plant was closed permanently
In the meantime, on August 5, 1952, while the Charlotte plant was still running the last box
order, the Union wrote to the Truck Company and Brown requesting recognition as exclusive
representative of the box-plant employees, and asking to be supplied with a list of the present
employees, their job classifications, hourly rates of pay, and the merit wage increases given
within the past 6 months The Union also asked for a list of employees employed at the time
of the July 3 shutdown.
On August 7, 1952, President Brown replied, stating that due to inability to manufacture
competitively in Charlotte the box plant was being closed permanently on August 29. Brown
further stated in his letter that in view of that development he saw no reason for supplying
the Union with the information it requested, but added that the Company could do-so if the
Union insisted.
The Union answered this letter under date of August 8, stating that it renewed the request
of August 5 "in its entirety," and suggested that if the Respondent had any doubt about the
Union's majority status it contact the Board and arrange for an immediate election. There is
no evidence of any response by the Company to this letter
On August 29, 1952, the box plant was closed permanently and moved to Monroe, North
Carolina President Brown's credited testimony is that those employees who lived in the
Monroe area were offered employment at the new location and at their existing rate of pay,
but that the others were not.
Though, beginning in June, rumors circulated through the plant to the effect that it would be
moved to some other location, the Respondents at no time indicated to the Board or to the
Union that such action was contemplated
D. Interference, restraint, and coercion
A large number of employee witnesses, and a former supervisor, testified for the General
Counsel as to threatening and coercive conduct by Superintendent Hughes in opposition to the
Union This testimony, in general, was denied by Hughes. Based on my observation, I deem
it improbable that all these witnesses were fabricating, and, as against Hughes' unconvincing
denials, I credit the testimony of the General Counsel's witnesses as to the following specific
incidents With respect to other incidents, as to which testimony was adduced but which are
not adverted to, I find no violations, either because I do not credit the affirmative testimony,
or because I credit the negative testimony, or because the evidence does not in any event
preponderantly establish unfair labor practices.
As testified to by employees Gregory, Means, and Lightsey, Superintendent Hughes, about
June 9, 1952, told a group of employees outside his office, in substance, that before the Union
would be allowed in the plant, it would be closed or moved
Early in June, Superintendent Hughes asked Foreman Carriker to spread the rumor among
the employees that if they joined the Union the plant would close. Carriker refused.
322615 0 - 54 - 65 -
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 16, 1952, several union organizers came to the plant gates and addressed groups
of employees outside the plant during the shift change Superintendent Hughes and Foreman
Carriker stood at the plant door and watched them As testified to by Carriker, Hughes told
Carriker, in substance, that since the latter could see which employees were going out to
listen to the organizers, Carriker would "know what to do "
After the organizers left the gate, Hughes told employee Himrich that if the Union came in
the plant would close; and told employee Hoffman that if "they" (the organizers) kept "messing
around," all the employees would be "out of work "
On one occasion around mid-June Superintendent Hughes told employee Pruitt that the plant
would have to be moved if the employees did not stop "this foolish union business." On another
occasion in the same month, Hughes told Pruitt, with reference to the union activity, that the
employees were working themselves out of a job, and that the plant was going to close down.
Sometime during the month of June Superintendent Hughes told employee Means that the
employees were "fouling themselves up" by joining the Union, and that the plant would move
to South Carolina where the wages were only $ 75 an hour
During June, employee Means gave a weeks' notice of intention of resigning. During that
week Superintendent Hughes apprehended Means in the plant in the act of signing up an em-
ployee in the Union during, or just before, shift change. Though there was no plant rule for-
bidding solicitation, Hughes told Means that if he ever caught him with another union card in
his hand he (Means) "would not last until the end of the week" When Means, after resigning,
came back to the plant to get his pay, Hughes told him that if the employees "had not messed
themselves up with the Union they would have received a bonus."
Prior to the beginning of the union activity Superintendent Hughes had customarily made
loans to employees and given merit increases to employees. After the union activity began,
however, Hughes ceased giving merit increases except in unusual situations, and ceased
making loans to employees. Hughes' testimonial explanation for this action was that he wished
to avoid charges of discrimination as between union and nonunion employees, and (in the case
of the loans) also because he did not wish to risk loss of the money. However, when employee
Lightsey applied for a loan, Hughes told him that he could have one if he did not sign a union
card; otherwise he could not. And when employee Tucker applied for a merit raise , Hughes
told Tucker that President Brown had told him not to grant raises until he saw what the Union
wanted to do
In view of these conversations, and the other evidence as to Hughes' antiunion attitude and
conduct, I cannot accept his explanation as to the reason for discontinuing the loan and merit
increase policy, and conclude that the action was in reprisal for the union activity
On one occasion prior to July 3 employee Lightsey asked Hughes if he did not think that
the Union was a pretty good thing Hughes told Lightsey to "forget about" the Union, said that
the Company would move the plant before it would let the Union in, and further told Lightsey
that if the latter knew anyone who had signed a union card to let Hughes know, and he(Hughes)
would fire such person
Sometime in June, President Brown told Foreman Carriker, with reference to the Union,
that he was not going to have anyone "running his business " Thereafter, Carriker told
employee Wall that President Brown had said that he would close the plant before letting the
Union in. Carriker, a witness for the General Counsel, would not definitely testify that Brown
made a statement to the effect that the plant would close and I find his testimony on the point
equivocal Brown unequivocally denies it. I do not find that Brown made the declaration, or
if he did, do not find that it was made in connection with the union activity.
It is found that by the above-described conduct of Superintendent Hughes, and by Foreman
Carriker's statement to employee Wall, the Respondent Truck and Trailer Company inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed in Section
lof the Act 3
3 Other denied, but credited , testimony by employees Jodie Davis and Clay Horne attributing
coercive statements to Superintendent Hughes at the Monroe plant in September and Novem-
ber 1952, is outside the scope of the bill of particulars and no finding of 8 (a ) ( 1) is made
thereon. This testimony has been generally considered , however , for its bearing on Hughes'
conduct toward the Union , for its light on the Respondent 's motivation in moving the plant,
and in determining what remedial action is appropriate International Broadcasting Co.,
99 NLRB 130; D. Gottlieb, 102 NLRB 1708; D. H. Holmes , 179 F. 2d 876 (C. A. 5)
In the Davis incident , which took place shortly after the move to Monroe , Superintendent
Hughes told Davis, employee Hoyle Davis, and Foreman Brice Davis , that he believed that the
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 10 13
E. Whether the move from Charlotte to Monroe , and the
July 3 shutdown , were discriminatorily motivated
As has been seen, the credited evidence establishes that removal of the box plant from
Charlotte was decided upon--and for legitimate reasons- -before the union activity began; and
was executed as soon as a suitable location had been secured. In this view , therefore , there was
nothing in either the decision to move or in its timing indicating a purpose to avoid dealing
with the Union . In addition to other factors , it seems significant to me that the trailer plant
was left in Charlotte . If desire to combat the Union was the Respondents ' motivation, the
record suggests no explanation as to why the Respondents would have removed their pre-
sumably temporary business , and allowed their regular and permanent business to remain
in Charlotte.
The opposition manifested by Superintendent Hughes to the Union in the box plant , though
constituting unfair labor practices by the Respondent , does not make the removal of the plant
discriminatory -- though in other circumstances such action might have been persuasive indi-
cation of ulterior motive Hughes did not, however , make the decision to remove the plant,
nor--at least so far as the evidence indicates --have any voice in it . The record evidence is
that the decision was made by President Brown at the suggestion or insistence of Vice-
President Folger of the bank The circumstances suggest that Superintendent Hughes took ad-
vantage of the contemplated move as a weapon with which to combat the Union . This , and the
fact that the new location had apparently not been decided upon until June , would explain why,
as many of the General Counsel's employee witnesses testified , they heard no rumors about
the plant moving until after the union activity began Other than Foreman Carriker 's equivocal
testimony as to one statement by President Brown, heretofore recited , there is no evidence
of animus by Brown toward the Union , though certain communications in the record suggest
that he did not welcome its appearance ( as, of course , he was not required to) Indication that
Superintendent Hughes' opposition was his own and not Brown ' s policy , is, in my judgment,
also to be found in the fact that the record is devoid of evidence of any interference with the
Union at the trailer plant.
It is consequently found that the record does not establish that the removal of the box plant
was for antiunion reasons.
Similarly , I do not find that the July 3 , 1952 , shutdown was for discriminatory motives. The
credible testimony and evidence is that this cessation of operations was caused by a lack of
orders. From November 1951 to January 1952 the plant was out of operation for the same
reason Cf. Eva - Ray Dress Co 88 NLRB 361; New Madrid Mfg. Co. , 104 NLRB 117.
F. The discharges
1. The refusal to reinstate Pruitt
Dargan Pruitt , a box-plant employee , was the leader of the union movement in the plant.
Pruitt's employment at the box plant ran back almost to the beginning of the operation. He
started at 85 cents per hour , and was successively raised , 5 cents at a time , to $1.05 per
hour , the last occasion being some weeks before the July 3 shutdown . All increases beyond
90 cents an hour were on merit. So far as his work performance was concerned , Pruitt was
rated by the Respondent as an "exceptionally good " employee
Around June 17, 1952 , Superintendent Hughes called Pruitt into his office and told him that
the Company would have to move the plant unless the employees stopped " this foolish union
business", he further said that the union activity was affecting production , that the Company
was not making any money ; and that President Brown had found a location where wages were
only 75 cents per hour Hughes further told Pruitt that he had " caught" employee Means
signing up an employee in the Union , and that he would have fired Means immediately but for
the fact that Means had given Hughes notice of intention to resign.
Respondent had a "pretty good setup" at Monroe, "since we got away from the Union";
and further asked the employees , in substance , to report any employee who "named" the
Union, adding, "he will go just like he came here."
When Horne was hired at Monroe in November 1952 , he indicated to Hughes that he was
not interested in employment if it was " under a union. " Hughes responded that the employ-
ment was not under a union; said that the Respondent "had left Charlotte because of the
Union"; and observed that Horne was a "man of [my] own heart."
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the same conversation Hughes told Pruitt, referring to the union activity, that he was
"not going to have it around here," and informed Pruitt that he knew that Pruitt was the
"head man" in the Union
About June 21, Superintendent Hughes explained the Respondents' production difficulties
to Pruitt and asked Pruitt to talk to the assembled employees in an effort to improve pro-
duction Hughes' testimony is that he chose Pruitt because Pruitt was a good employee, and
because Hughes surmised that Pruitt had something to do with the Union.
On the following day, pursuant to Hughes' request, Pruitt addressed the employees in the
plant, explained the situation, and exhorted them not to do anything to harm or adversely
affect production. He also told the employees not to drop their union activities, but to "keep
signing those cards "
Pruitt was laid off in the July 3 shutdown. When work resumed later in July, he was not
recalled . Hearing that the plant had reopened, Pruitt sought out Superintendent Hughes on
Wednesday, July 30, and asked for employment Hughes told Pruitt to report for work on the
following Monday. 4 But on the following day, Thursday, Hughes sent word to Pruitt by another
employee that he should not report Pruitt reported nevertheless, and asked Hughes if the
Union was the reason for the failure to reemploy him. Hughes responded that Pruitt was a
good worker, but that he had caused Hughes "a lot of trouble", that if Pruitt returned "it
would be the same old thing"; and that he (Hughes) would prefer that Pruitt look for another
job Hughes further said that if Pruitt wanted a reference, Hughes would give him a good
recommendation.
Hughes' testimonial explanation of his reason for not rehiring Pruitt was because of
Pruitt's drinking propensities, and his failure to provide for his family. 5
According to Hughes' testimony, Pruitt was under the influence of liquor when he applied
for reemployment. Hughes' further testimony was that, after telling Pruitt to come in on
Monday. he (Hughes) discussed with Foreman or Inspector Hamilton an occasion at sometime
in the past on which Pruitt had shown up for work under the influence of liquor and had had to
leave Hughes' testimony is that following this discussion, he did not "want the headaches
anymore," and he therefore sent word to Pruitt not to report.
Pruitt's alcoholic and nonsupport record are not characteristics arousing admiration or
sympathy The issue, however, is not whether Pruitt's habits are appealing, but whether they
were the reason Hughes did not reemploy him. I am persuaded that they were not the reasons.
As had been seen. Pruitt was an exceptionally good employee , a rating the Respondent
would scarcely have given him if his personal habits interfered with his work performance
to their disadvantage or dissatisfaction. In any event, whatever Pruitt's private delinquencies,
they did not until July 1952 affect either his status or advancement with the Company. In
terms of service he was one of the box plant's oldest employees, having been employed in
May 1951. In addition to an automatic increase, he had received three wage increases on
merit; the last some weeks before the July 3 shutdown The incident which Hughes asserts
caused him not to reemploy Pruitt was one which had occurred at some indefinite time before,
and was not then considered sufficiently serious to merit discharge, discipline, or, so far as the
record discloses, even rebuke. The supposition that an enterprise which was having to move
its plant because of inefficient production would refuse to rehire one of its ablest producers
because of a delinquency which, so far as the record reveals, had caused no concern when it
occurred, is not strikingly persuasive.
In view of Superintendent Hughes' record of opposition and apparent animus toward the
Union, and the insubstantial nature of the grounds asserted for refusing to rehire Pruitt, and
on the basis of my appraisal, I cannot credit Hughes' explanation as to the reasons for not
rehiring Pruitt. I find that Pruitt was refused reemployment by Hughes because of his prom-
inence in the union activity, that the Respondent Truck and Trailer Company thus discrimi-
nated in Pruitt's tenure of employment and discouraged membership in the Union; thereby
interfering with, restraining, and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
4 Employee Gregory testified that on this occasion he overheard Hughes say to Pruitt:
"But I don't want to hear nothing more about the Union out of you " Pruitt's testimony
does not reveal any such declaration by Hughes. I therefore do not find that it was made.
5 At the time of hearing Pruitt was serving a jail sentence for nonsupport. He had also
been jailed a number of times for drunkenness.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1015
2 The discharge of Gregory
Everett Gregory (sometimes referred to as Herbert Gregory), described by Superintendent
Hughes as a "good" employee, was discharged by Hughes on June 16, assertedly for smoking
in the plant and letting his line run out of work
Posted rules forbade smoking in the box plant because of fire hazard and insurance re-
quirements Though there is evidence that on occasion the rule was breached without discipline
other than a warning, it seems a fair inference from the evidence that reasonable effort was
made to see that the rule was observed. Two 10-minute periods, one in the morning, the other
in the afternoon, were provided during which employees were permitted to leave the plant and
go outside to smoke, or--in inclement weather--to go into the office.
On June 16 Gregory gave Dargan Pruitt the signed union card of another employee. Accord-
ing to Gregory, Superintendent Hughes was standing on the loading platform of the plant at the
time, at an undisclosed distance from Gregory and Pruitt, and looking in their direction; but
whether Hughes saw tl.e action Gregory and Pruitt could not say.
That afternoon Gregory left his place of work on the production line and went into the toilet
to smoke during working hours. As he was there smoking Hughes came along and saw him.
At the end of the shift that day Hughes discharged Gregory, telling Gregory, in sum, that he
had given previous warnings concerning smoking in the plant. Hughes' testimony, denied by
Gregory, is that the production line stopped because of Gregory's absence; that he went look-
ing for Gregory and found him smoking in the toilet On the following day Hughes told Dargan
Pruitt that he had not fired Gregory because of the smoking, but because of laxity on the job.
In view of Gregory's admitted breach of the smoking rule, and uncertainty as to whether
Hughes actually saw Gregory pass the union card to Pruitt, I am not persuaded that the evi-
dence establishes that Hughes seized upon the breach of the rule as a pretext for discharging
Gregory because of his union activity In view of Hughes' rebuke to employee Means, hereto-
fore recited, when he saw Means signing up an employee in the plant, it seems reasonable to
suppose that if he had seen Gregory passing the card he would have made some comment
about it It will be recommended that this allegation of the complaint be dismissed.
3 The discharge or layoff ofCarriker
Brady Carriker, foreman on the second shift, and an excellent employee, was let go by
President Brown about July 17 The General Counsel contends that Carriker was discharged
or laid off because he "refused to implement and carry out the Respondent Truck and Trailer
Company's policies and directives" to combat the union activity. As has been seen, I find no
substantial evidence of such a general policy on the part of Respondent Brown. The policy
appears to have been that of Superintendent Hughes; though the Truck and Trailer Company is,
of course, responsible for his conduct in his supervisory capacity.
As has also been seen, Hughes suggested to Carriker--on the occasion when the union
organizers were at the plant on June 16, 1952,--that Carriker take some action against the
employees who indicated an interest in the organizers Early in June, Hughes also asked
Carriker to spread the rumor among the employees that the plant would close if they joined
the Union; this Carriker refused to do.
During the shutdown from July 3 to about July 27 about half a dozen employees, including
supervisors, were kept employed, mainly at reworking defective boxes. During the first week
after July 3 Carriker was given his vacation. About July 15, after Carriker's return, Super-
intendent Hughes told Carriker that hewouldhaveto lay him off after that week. Carriker then
saw President Brown and asked for a recommendation, since he was "being fired." Brown
responded that Carriker was not being fired, but that Brown "just had to cut down on ex-
penses." Brown did not offer Carriker a job at Monroe. Carriker, who had his own business
and shop, indicated that he was not disturbed, because he had a backlog of orders, and he and
Brown parted on good terms. When Carriker was let go, Foreman or Inspector Hamilton, a
supervisory assistant to Superintendent Hughes on the first shift, who had been hired only a
few months before, was retained , and subsequently was transferred to Monroe.
The decision to lay off Carrtker thus seems to have been made by Brown and not by Hughes.
Except for testimony by Brown to the effect that he told Carriker that he could not afford to
pay Carriker's expenses to commute between Charlotte and Monroe, there is no clear ex-
planation as to why Hamilton was retained in place of Carriker . However, I do not deem the
evidence sufficiently substantial to warrant the conclusion that Carriker was terminated be-
cause he refused to join in Superintendent Hughes' program of opposing the Union . It will
therefore be recommended that this allegation of the complaint be dismissed.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The refusal to bargain
In the box plant consent-election agreement , dated June 24, 1952, the Truck and Trailer
Company and the Union agreed upon the following as an appropriate bargaining unit:
All production and maintenance employees of the Box Plant of the Brown Truck and
Trailer Mfg Company, Charlotte, N. C , but excluding all other employees, office and
clerical employees, guards, professional etiiployees, and supervisors as defined in the
Act, as amended.
I find this to have been an appropriate bargaining unit.
There were 81 employees in the appropriate unit on the box-plant payroll of June 18, 1952,
which payroll the parties agreed should constitute the eligibility roster for the July 11
election, By June 16, 1952, the Union had secured the signed designations of a majority of
those employees, authorizing the Union to be their collective-bargaining representative.
By July 3, 1952, the Union had increased its majority to over 80 percent. There were 29 em-
ployees on the box-plant payroll at the time the plant was moved to Monroe in August. Of
these 29, some 22 had signed union-designation cards it is consequently found that on June 16
and August 28, 1952, and at all intervening times, the Union was the designated representative
of the employees in the appropriate unit within the meaning of Section 9 of the Act.
At the consent-election conference held in June, President Brown told the Board s field
examiner that the Truck and Trailer Company was contemplating closing the plant and selling
it because it could not be operated profitably Though the new site in Monroe had already been
decided upon at that time, President Brown did not then (nor did he at any time up to the
actual moving) inform either the Board or the Union that the plant was going to reopen in
Monroe. The impression conveyed at the June 24 meeting was that, because of inability to op-
erate profitably, the Company was going out of the box business entirely. On the basis of this
understanding an election was set provisionally, subject to cancellation if the plant closed,
and when the shutdown occurred on July 3 the Union, still under the apparent apprehension
that the closing was a permanent cessation of operations, joined in a request to the Board to
postpone the election indefinitely. After the plant reopened, however, the Union, by its letter
of August 5, redemanded recognition as the bargaining representative, an action it would
scarcely have taken if it had been aware of and acquiescent to the planned move to Monroe.
In its answer of August 7, the Truck and Trailer Company reiterated its intention "to close
down this operation [permanently] due to our inability to operate this plant in competition with
the larger box manufacturers," and it therefore saw "no reason" for complying with the
Union's requests Again the Company gave no hint that it was continuing box manufacturing
elsewhere.
I believe that the Company was under an obligation to disclose to the Board and the Union
its plan to resume operations in Monroe, and should not have permitted the conclusion to be
drawn that it was retiring permanently from the box business. That the employment enter-
prise was going to continue operations 30 miles away was extremely material fact. It was of
importance both to the Board in determining what disposition should be made of the Union's
petition, and to the Union with respect to what position it should take regarding the holding of
the election For if the enterprise was to continue, the employees' jobs were still available to
be filled On the filling of them the employees, and the Union as their representative, had an
obvious bargaining interest. The Charlotte employees might have desired to transfer to Monroe
even at the wages which the Respondent was contemplating paying in Monroe. As has been seen,
some employees were offered, and some accepted, transfer at their existing scale. But there
was no general offer. Had the disclosure been made, and had the Respondent negotiated with
the Union, mutually satisfactory arrangements respecting the transfer might have been worked
out. All or a substantial number of the employees might have transferred. It is even within the
realm of possibility that mutual discussion could have produced solutions impelling the
Company to abandon or to delay the move.
The bargaining representative of employees is at least entitled to notice of and opportunity
to discuss action which has the effect of permanently displacing all or substantially all em-
ployees in the appropriate unit and replacing them with others And it is concluded that the
Union here was the designated representative. That it had not been certified is not, under the
presented circumstances, controlling though it might have been under other circumstances.
BROWN TRUCK AND TRAILER MANUFACTURING COMPANY, INC. 1017
Had the Company been motivated in its August failure to bargain by good-faith doubt as to the
Union's majority, that would, of course, be a complete defense It assigned such a reason
when the Union made its June demand; but it did not do so in August The Company's response
on the latter occasion was that, in view of its decision to close the plant, it could "see no
reason for supplying . . . the information requested, but which we can of course do if you
insist." In its August 8 letter, to which the Company did not reply, the Union did insist.
Tacitly, the Company's August 7 letter accepts--or at least does not controvert--the Union's
claim to be the representative of the employees. And to the Union's suggestion in its follow-up
letter of August 8, that the postponed election be held if the Company had any doubt about the
Union's status, the Company made no reply
But even if the Union's majority status had been contested by the Company in August, I
could not find that it had been done in good faith The Company's failure to disclose the im-
pending move , and its suggestion that it was permanently ceasing box operations as reason
for not proceeding with the election , had a triple-barreled effect . it withheld a material fact;
it deprived the Union of opportunity of establishing its status in an election; and it deprived
the Union of opportunity to discuss the contemplated move. It is consequently found that the
Truck and Trailer Company's failure to comply with the Union's request for recognition in
August, was not based on good-faith doubt as to the Union's majority status.
On the basis of the above conclusions , it is further found that on and after August 7, 1952,
the Respondent failed and refused to bargain collectively with the Union, the statutory repre-
sentative of its employees in the appropriate unit, and thereby interfered with , restrained,
and coerced employees in the exercise of rights guaranteed in Section 7 of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Brown Truck and Trailer Company, Inc., set forth in sec-
tion III, above , occurring in connection with the operations of all the Respondents described
in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free now of commerce.
V. THE REMEDY
Havirgg found that the Respondent Brown Truck and Trailer Company, Inc., has interfered
with, restrained , and coerced employees in the exercise of rights guaranteed in the Act, and
refused to bargain with the Union, it will be recommended that it cease and desist therefrom
and take certain affirmative action necessary to effectuate the policies of the Act.
The refusal to bargain in August 1952 can be effectively remedied only by requiring Newel
Manufacturing Company , the successor to and subsidiary of Brown Truck and Trailer Com-
pany , to bargain with the Union. That the personnel at Monroe may not be the same as that at
Charlotte does not warrant relieving the Brown Company and the Newell Company of the ob-
ligation to remedy the unfair labor practices . As has been seen , a number of Charlotte em-
ployees were transferred to Monroe. The mere change in location of the plant does not
necessarily mean that the Union is not the choice of the majority of employees at Monroe as
their bargaining representative . There is no evidence that it is not . The record does not
warrant a finding that the Union lost its majority status by the transfer.
But even if it be assumed that the Union did lose its majority , the loss is as attributable to
the unfair labor practices as to any fortuitous factor . Had the Brown Company bargained with
the Union at Charlotte , all or a substantial part of the Charlotte personnel and the union mem-
bership might have been transferred to Monroe . Even if there were doubt as to whether the
Union is the choice of the Monroe employees , the Brown Company is responsible for it, and it
was up to it and its successor to disentangle the consequences ; that is, to establish that even
if there had been no unfair labor practices the Union would have lost its majority . This they
have not done , and because they did not bargain the issue out, I believe they cannot do, except,
by way of undemonstrable speculation as to what the result of the bargaining would have been.
In any event, to permit the Brown Company and the Newel Company to avoid bargaining now
because the unfair labor practices mayhavedestrdyed the Union' s majority would enable them
to take advantage of the original wrong . Franks Bros. v N. L. R. B., 321 U. S. 702.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will also be recommended that, consistently with the Board's usual policies (see Chase
National Bank, 65 NLRB 827; Woolworth Co., 90 NLRB 289, Crossett Lumber Co., 8 NLRB
440) the Respondents Brown Truck and Trailer Company and Newell offer to Dargan Pruitt
reinstatement to his former or substantially equivalent position, at Monroe, without prejudice
to his seniority or other rights and privileges, and make hun whole for any loss of pay he may
have suffered by reason of the discrimination against him.
At the time of hearing Pruitt was serving a jail sentence for nonsupport. If still confined,
the offer of reinstatement shall be made upon notification by Pruitt, to be given by him to the
said Respondents within 5 days after his release, that he is available for employment. If
Pruitt fails to give such timely notice the said Respondents shall be relieved of further obli-
gation to offer him reinstatement. The said Respondents shall not be liable for the payment
of back pay to Pruitt during any period of time that he was unavailable for employment,
whether by reason of his incarceration or otherwise. If the said Respondents do not provide
Pruitt reinstatement within 5 days after notice from him that he is available for employment,
back pay shall again begin to run thereafter.
Nothing in the foregoing findings and conclusions, in my judgment, warrants the issuance of
an order against Respondent Joseph L. Brown personally.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following
CONCLUSIONS OF LAW
1 United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the box plant of Newel Manufacturing
Company, excluding all other employees, office and clerical employees, guards, professional
employees, and supervisors as defined in the Act, as amended, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act.
3 Up to August 29, 1952, all production and maintenance employees of the box plant of
Brown Truck and Trailer Manufacturing Company, Inc , excluding all other employees, office
and clerical employees , guards, professional employees, and supervisors as defined in the
Act, as amended , constituted a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. Newell Manufacturing Company, Inc., is a successor to and subsidiary of Brown Truck
and Trailer Company
5. At all times from June 16, 1952, to August 29, 1952, United Automobile, Aircraft & Agri-
cultural Implement Workers of America, CIO, was the exclusive bargaining representative of
all employees of Brown Truck and Trailer Manufacturing Company, Inc., in the aforesaid ap-
propriate unit; and at all times sinceAugust29, 1952, the exclusive collective bargaining rep-
resentative of all employees of Newel Manufacturing Company in the aforesaid appropriate unit
6. By failing and refusing on August 7, 1952, to bargain collectively with the aforesaid Union
as the exclusive representative of its employees in the aforesaid appropriate unit of its
employees, Brown Truck and Trailer Manufacturing Company, Inc., engaged in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
7 By discriminating in the hire, tenure, terms, and conditions of employment of Dargan
Pruitt, thereby discouraging membership in the Union, Brown Truck and Trailer Company
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
8. By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, Brown Truck and Trailer Company engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
9 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
10. None of the Respondents engaged in unfair labor practices in the layoff or discharge of
Brady Carriker and Everett Gregory; or by the shutdown of July 3, 1952, or by moving the
box plant from Charlotte, North Carolina to Monroe, North Carolina.
[Recommendations omitted from publication.]