Corpus Christi Grain Exchange, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1961

132 N.L.R.B. 145 (N.L.R.B. 1961)

CORPUS CHRISTI GRAIN EXCHANGE, INC. 145
4. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondents , and each of them, have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (b) (1) of the Act.
5. The aforesaid unfair labor practices having occurred in connection with Car-
rier's operations as set forth in section I , above, have a close , intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States, and sub-
stantially affect commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Corpus Christi Grain Exchange , Inc. and John L. Hamilton,
Roy J. Rackley, Wesley E. Franklin . Cases Nos. 923-CA-1034-1,
23-CA-1034-0, and 23-CA-1034-3. July 14, 1961
DECISION AND ORDER
On December 22, 1960, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices and recom-
mended that the complaint be dismissed as to such allegations. There-
after, the General Counsel and the Respondent filed exceptions to the
Intermediate Report and briefs in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Rodgers, Leedom, and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts i the findings,2 conclusions, and
recommendations 3 of the Trial Examiner except as herein modified.
i The Respondent 's request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately present the issues and the positions of the parties.
3 At different places in his Intermediate Report in referring to events that occurred on
May 16 , 17, 18, and 19, the Trial Examiner stated the month to be March Instead of
May. The Intermediate Report is corrected accordingly.
Absent exceptions , we adopt pro forma the Trial Examiner's recommended dismissal of
allegations that the Respondent violated the Act by laying off employees on May 16, by
Foreman wyatt 's interrogation of employees Fred Franklin and Bohach , by wyatt's advis-
ing employees that there would be a layoff to discourage union activities , by wyatt's
informing certain employees that they were laid off because the Respondent had learned
of their union activities and was laying them off for that reason , and by Assistant Manager
Hines telling employees to deal directly with management and that they would thereby
achieve better benefits without a union.
8 The Trial Examiner recommended that the Respondent be ordered to cease and desist
from violating the Act "in any like or related manner" to the violations found . Because
the discriminatory refusals to rehire Rackley and Hamilton evince a studied intent to
thwart the rights of employees in freely selecting their collective -bargaining representa-
132 NLRB No. 12.
146 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 Respondent, Corpus Christi
Grain Exchange, Inc., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging activity in or on behalf of International Long-
shoremen's Association, or any other labor organization of its em-
ployees, by failing or refusing to rehire or reemploy employees.
(b) Interrogating employees regarding their exercise of rights
guaranteed by the Act in a manner constituting interference, restraint,
or coercion in violation of Section 8(a) (1) of the Act.
(c) Conditioning wage increases and other benefits on the agree-
ment by employees to abandon their union activity.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act, and to refrain from any
or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Roy J. Rackley and John L. Hamilton immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of pay
they may have suffered by reason of the discrimination against them,
all in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amount of backpay and right
of reinstatement due under the terms of this Order.
(c) Post at its plant in Corpus Christi, Texas, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Twenty-third Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by Respondent immediately upon receipt there-
tive, we shall issue a broad cease-and-desist order . North Texas Producers Association,
131 NLRB 146
4 In the event that this Order is enforced by a decree of a 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."
CORPUS CHRISTI GRAIN EXCHANGE, INC. 147
of, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to em-,
ployees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in all other respects.
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 :
WE WILL NOT discourage activity in or on behalf of Interna-
tional Longshoremen's Association, or any other labor organiza-
tion of our employees, by failing or refusing to rehire or reem-
ploy any of our employees.
WE WILL NOT interrogate employees regarding their union activ-
ity in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1) of the Act.
WE WILL NOT condition wage increases or other benefits on the
agreement of employees to abandon their union activity.
WE WILL offer to Roy J. Rackley and John L. Hamilton im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and will make them whole for any loss of
pay they may have suffered by reason of the discrimination against
them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the right to self-organization, to form or
join labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for their mutual aid or protection as guaranteed in Sec-
tion 7 of the Act, and to refrain from any and all such activities
if they wish.
CORPUS CHRISTI GRAIN EXCHANGE, 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.
614913-62-vol. 132-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner at Corpus Christi, Texas, on September 12, 1960, upon the complaint
of the General Counsel and the answer of Respondent.
The complaint alleged that on May 16, 1960 , Respondent discharged employees,
Hamilton, Rackley, and Franklin, that on May 31, 1960 , Respondent rehired Frank-
lin and discharged Franklin on June 2, 1960 ; and that since May 16, as to Hamilton
and Rackley , and since June 2, as to Franklin, Respondent has failed and refused
to reinstate or reemploy said employees ; all discharges and failure and refusal to
reinstate and reemploy are alleged to be due to the said employees ' union activity
and due to the fact that the said employees filed charges or gave testimony under the
Act; the' aforementioned acts of Respondent are alleged to be violative of Section
8(a)(1), (3), and (4 ) of the Act . The complaint also alleges specified acts of
interference , restraint , and coercion by named supervisors of Respondent on specific
dates, all said conduct being alleged as violative of Section 8(a) (1) of the Act.
Respondent in its answer denies the commission of unfair labor practices as al-
leged.
Both parties filed briefs with the Trial Examiner.
Upon the entire record, and from his observation of the witnesses , the Trial Ex-
aminer makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation with its principal office and place of business
at Corpus Christi, Texas. At all relevant times Respondent was engaged in the
business of inspecting , grading, and weighing grain and grain sorghums.
In the course of its business operations , during the 12-month period preceding
August 1960, a representative period, Respondent inspected , graded and weighed
grain and grain sorghums and performed related services valued in excess of $50,000
for other business enterprises , including Corn Products Refining Company, Lewis
Dreyfuss, Inc., Cargill, Inc., and Uhlmann Elevators, each of which business enter-
prise, separately and collectively, sells and ships goods, materials, and services
valued in excess of $50,000 directly out of the State of Texas annually and each of
which business enterprises is engaged in commerce within the meaning of Section
2(6) of the Act.
Respondent is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
II. LABOR ORGANIZATION INVOLVED
International Longshoremen 's Association , hereinafter called the Union , is a labor
organization within the meaning of Section 2 ( 5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The normal employment complement of Respondent consisted of Haston, who
was manager and chief inspector , as well as treasurer of Respondent corporation;
five grain inspectors licensed by the Department of Agriculture who passed upon
the quality and grade of the grain submitted to Respondent; office clerical employees;
a grain sampler foreman ; and grain samplers . The work of the grain samplers is
to extract samples of grain that customarily is brought to Respondent's premises in
railroad boxcars or trucks. The foreman assigns a grain sampler to a particular
boxcar and writes up a ticket identifying the boxcar and the sampler assigned
thereto The ticket is placed in a sack which the sampler takes into the boxcar
The sampler uses a probe which is about 5 feet long The probe is thrust into five
different locations inside the grain-laden boxcar and the samples thus extracted are
then gathered and eventually are inspected and tested by the grain inspector. The
locations within the car where the probe is thrust are standardized by Respondent
and are prescribed as a part of the grain sampler's training and duty. The number
of grain samplers employed by Respondent varies. There are a number of year-
round permanent samplers plus samplers who are taken on and laid off according
to the amount of work on hand. The workload of Respondent is heaviest in the
grain harvest season and the latter would be affected by weather and other natural
conditions . In general , the harvest season commences about the end of June or
July 1.
CORPUS CHRISTI GRAIN EXCHANGE, INC. 149
B. The termination of Rackley , Hamilton , and Wesley Franklin
Rackley had worked for Respondent as a grain sampler for the following periods:
July 4 to August 29, 1957; June 18 to August 27, 1959; April 16 to May 16, 1960.
In 1957 and 1959 Rackley had been attending school and had worked for Re-
spondent during his summer vacation . Rackley was apparently attending Austin
College at the time of the hearing but judging from the date of his employment in
1960 , April 18 to May 16 , he evidently was not a student at that time . Hamilton
was employed as a grain sampler by Respondent from May 1 to 8, 1958; Marc/i 31
to April 28, 1960; and May 10 to 16, 1960, and Franklin worked from March 30
to May 16, 1960; and May 30 to June 2, 1960.
Rackley testified that about the second week when he was employed by Re-
spondent in 1960 he heard discussion among the grain samplers about organizing
a union Rackley told the men that he would undertake to secure information about
what steps had to be taken . Thereafter Rackley was in touch with the president
of an ILA local union in Corpus Christi and with the district president or director
of that union . With the help of local union officials, a letter applying for a charter
was prepared and application forms were secured . Rackley secured the signatures
of his fel'ow workers on the aforementioned letter and applications and the letter
was dispatched to the Union.
According to Rackley , about May I he had two conversations , one being in a
truck on the plant premises , with Wyatt , grain sampler foreman . Rackley told
Wyatt that "we" had sent in an application for a union charter but had not yet re-
ceived an answer. Wyatt said that he hoped they received an answer because he
would like to see the men get organized . Hamilton testified that close to the time of
his layoff on April 28, 1960 , he was with Rackley in a truck when the latter told
Wyatt what had been done about getting a union . Wyatt's response , according to
Hamilton, was that, "Well, I hope you boys get it because it may help me."
Wyatt denied having had the foregoing conversations or that he was aware of the
union activity . Careful consideration of all the factors presented has led the Trial
Examiner to credit the aforedescribed testimony of Rackley and Hamilton One of
several elements was the fact that if the testimony of the employees was fabricated
it would appear unlikely that they would not have also imputed to Wyatt some ex-
pression of hostility toward the union project or a warning as to higher manage-
ment's attitude . Such embellishment of fabricated testimony would have readily
suggested itself as a most helpful element in their respective charges of discrimina-
tion. Instead, the credited testimony shows approbation on Wyatt's part and a
complete lack of hostility.
The events of May 16, 1960 , are the subject of considerable controverted testi-
mony. On Monday , May 16, Haston, who had been out of town since May 10
to attend a grain inspectors ' conference , returned to Respondent 's plant. It is
Wyatt's and Haston 's testimony , in substance , that on that morning the two con-
ferred and decided upon a layoff. They selected the three junior employees, Rack-
ley, Hamilton , and Wesley Franklin , as the men to be terminated . This basis of
selection was the customary one at the plant. The asserted reason for the layoff
was that at the time when Haston was to leave Corpus Christi to attend the afore-
mentioned conference , Respondent had been informed that a substantial amount
of grain was to be transferred from a ship and this would provide considerable work
for Respondent . Because of the anticipated work Respondent on May 10 rehired
Hami'ton whom it had terminated on April 28 , 1960. During Haston 's absence the
aforementioned ship transaction did not materialize and Respondent found that it
had more grain samplers than it needed .' In addition to the fact that the ship job
fell through , Wyatt and Haston testified that work was slack at the time and it was
decided to lay off three men. The layoff was made at the end of the workday on
May 16 , Both Wyatt and Haston denied that they were aware of union activity
among the men on May 16.
Haston testified that on May 17 while at lunch with the superintendent of the
public grain elevator, located on adjacent premises, the latter said jokingly that he
heard that Haston was laying off men for union activities . Haston said that this
was the first he had heard about it. Upon returning to his office after lunch Haston
asked Wyatt if he knew of any union activities and Wyatt said, "No." Later, that
same afternoon Wyatt came back and informed Haston that he understood that the
men were pretty far along with the Union.
'Haston testified that in addition to Hamilton another man was being hired but that
the latter was not taken on when the woik did not develop
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wyatt testified in corroboration of Haston's testimony and fixed the date of the
discussion about the Union as May 17. He stated that on that day Haston asked
him if he knew anything about union activity among the men and that on that after-
noon Wyatt asked Bohach and Fred Franklin about what they had done regarding a
union. They told him what organizing steps had been taken. Wyatt asked how
many had signed up, and he was told that all the grain samplers had signed. Wyatt
told the two men that Haston knew about it.2
At the hearing, Wyatt was confronted by the General Counsel with an affidavit
of Wyatt's in which the latter stated that his discussion with Haston and the men
concerning the Union occurred on "Monday, May 16." Wyatt testified in effect that
he had been in error about the date referred to in his affidavit. While the Trial
Examiner can understand that an individual could be mistaken about a numerical
date standing by itself, the affidavit makes reference to Monday, as well as the
date, and to the discussion on that occasion with Haston concerning the failure of
the shipboard grain job to materialize and the decision to make a layoff. On three
different occasions in the affidavit, "Monday, May 16" is referred to and various
events in which Wyatt participated on that same date are detailed. Moreover, it is
the Trial Examiner's opinion that when the affidavit was signed the date of Monday,
May 16, would reasonably have significance to Wyatt since that was the date of the
termination of three employees under Wyatt's jurisdiction in a plant employing a
relatively small working force; it was also the date of Haston's return to the plant
after an absence of about a week. Both these events, it seems to the Trial Examiner,
would cause Monday, May 16, to register significantly with Wyatt and the details of
the affidavit, aforedescribed, with reference to events on that date confirm this opinion.
The Trial Examiner does not credit Wyatt or Haston that the conversations between
them concerning union activity among the employees occurred on Tuesday, May 17.
Rackley testified that on May 16 work was finished earlier than usual. Apparently
due to the fact that insufficient regular work was at hand, Rackley, Hamilton, and
Wesley Franklin were assigned to cleaning up a storeroom known as the feed shack.
This cleanup work occurred about 3 p.m. At 4:15 p.m. a truck pulled into the
elevator and Rackley was assigned to sampling the truck .3 When Rackley finished
sampling the truck he came back to the building known as the "lab." Wyatt, accord-
ing to Rackley, was entering the lab at that time and had three checks in his hand.
Rackley asked if one of the checks was his and was answered in the affirmative .4
Rackley testified that he and the others "were off work" that day at 4.30 p.m. al-
though the regular quitting time was 5 p.m. Just before they left Wvatt gave Rack-
lev, Hamilton, and Wesley Franklin their checks. Rackley testified that Wyatt said,
"You boys come back around when the season is heavier." Whey they stepped out-
side the lab, Wyatt allegedly said to Rackley and Hamilton, "It looks like the Chief
found out what you all were doing." 5 Rackley said that he then told Wyatt that
he was not going to stop trying.
Hamilton corroborates Rackley's foregoing testimony in many respects. How-
ever, Hamilton states that when Wyatt handed out the checks he said, "Well, I
guess you know that the Chief has found out what you all were trying to do." 8
Rackley had placed the last-mentioned type of statement as having occurred pri-
vately outside the lab after the checks had been given out inside the building. Rack-
ley had also said that when Wyatt gave them the checks in the lab he simply told
them to return when the season became busier.
2 Fred Franklin was one of the regular or permanent grain samplers. Bohach was a
grain sampler. About April 1, 1960, Wyatt, the sampler foreman, attended school in
Galveston for 4 days in preparation for becoming a grain inspector for Respondent
During his absence Bohach functioned as foreman When Wyatt returned from Galveston
Bohach continued to assign work to the grain samplers and to fill out work tickets al-
though Wyatt was the titular foreman. Wyatt testified that Bohach was assistant fore-
man and was in training to become foreman . When Wyatt became an inspector Bohach
became foreman, about June 20, 1960 Bohach during April and May 1960, participated
in the union discussions and activities of the other grain samplers and apparently was
undistinguished from others in his interest in the Union.
8 According to Rackley sampling a boxcar would take less than 5 minutes It is
apparent that the sampling of the single truck took no more time than a boxcar and
probably less.
4 These events occurred, as we have seen, on Monday, May 16 Friday was the regular
payday
5 The record establishes that Haston was commonly referred to as the "chief "
.The statement attributed to Wyatt by Rackley and Hamilton concerning what they
were doing or trying to do carried the clear implication of and reference to union activity.
CORPUS- CHRISTI GRAIN EXCHANGE, INC: 151
Mitchell , a grain inspector in Respondent's employ, testified that he was present
on May 16 when Wyatt gave the three men their checks. Mitchell stated that all
Wyatt said was that there was a little reduction in the work force; there was no
mention of the Union . Mitchell walked outside the lab with those present and said
to Rackley , "I guess you are going to New Orleans now." The latter said, "Yes,
I sure am ." This was all that was said , according to Mitchell , and there was no
other reference made.
Wyatt testified that on the morning of May 16 they were all sitting in the lab with
nothing to do and Wyatt announced that there was going to be a layoff that day.
Later, that afternoon Wyatt testified he gave the three men their checks, saying that
the layoff was due to lack of work . Wyatt said that when he gave out the checks
everybody left and there was no discussion with reference to the Union.
Wesley Franklin testified that on the morning of May 16 he heard Wyatt state in
the lab that the chief had heard about us trying to organize a union and that they
were going to lay off some of the grain samplers and try to put a stop to it. Accord-
ing to Wesley Franklin , Hamilton was among those present . The Trial Examiner
finds Wesley Franklin 's testimony to be at variance with that of Hamilton who
placed Wyatt 's remarks as having occurred at the end of the day when they received
their checks.7 Rackley placed Wyatt 's remarks not only at the end of the day but
also said that the significant statement of Wyatt was uttered outside the lab as they
were leaving and was not uttered publicly as Wesley Franklin testified . The Trial
Examiner does not credit the foregoing testimony of Franklin except to the extent
that Wyatt had announced that there would be a layoff . At another point in his
testimony the latter stated that Wyatt "told us that morning that some of the guys
were getting laid off, and the guys that hadn 't been there as long are usually the ones
that get laid off, and we figured it was us."
Fred Franklin , a grain sampler who was still employed by Respondent at the
time of the hearing, testified that he and others had discussed union activities with
Wyatt. He testified that this occurred about the middle of March 1960, ". we
was just trying to or thinking about going union and we discussed it with him."
Wyatt "told us if that is what we wanted to do, well , it would be all right." Fred
Franklin also testified that on the morning of May 16 , outside the lab, Wyatt spoke
to him and another sampler , Klavemann . According to Franklin , Wyatt said that
Haston "had found out about us trying to go union and that he thought it was going
to be a little lay-off ." Hamilton testified that between 2 and 3 p.m. on March 16
Fred Franklin told him, Rackley, and Wesley Franklin, together, that somebody is
supposed to get laid off.
Respondent's witness , Garza, was also a grain sampler. He testified that after he
and the other samplers had signed the letter applying for a union charter he was
in a group talking to Wyatt; one of the men told Wyatt that they had applied for
a union character and Wyatt said "it was up to us." 8
Garza's testimony on some points was not too clear but the Trial Examiner is con-
vinced and finds, based on Garza 's testimony , that after the terminations on May 16
and before Wednesday or Thursday, May 18 or May 19, Wyatt spoke to Garza and
a group of samplers while they were out sampling boxcars. The statement by Wyatt
was made after the terminations but since it was made while the men were out
sampling, it is found to have occurred no earlier than May 17. The record is clear
that when the three men were given their checks on May 16, everyone, including
Wyatt , went home and there was no work performed after that time, about 4:30 p m .9
The statement by Wyatt on the aforementioned occasion , to which Garza testified,
was that Haston "didn't like what we were doing about trying to organize a union."
In reconstructing the events leading to the terminations on May 16, it is apparent
that the General Counsel 's position and that of Respondent are in sharp variance.
7 Franklin's testimony attributed a stronger or more direct statement to Wyatt than did
that of Rackley and Hamilton, to wit, the chief knew about the union activity and was
going to lay off some samplers in order to put a stop to it
9 The date when the letter applying for a charter was sent was never definitely estab-
lished in the record Rackley , who was perhaps in the best position to know , was unable
to give a precise date Rackley's estimate was that it occurred about May 1 Since
Hamilton testified that shortly before his layoff on April 28. 1980. he heard Racklev tell
Wyatt about what the men had done regarding the Union, the Trial Examiner finds that
this charter application was made a day or two prior to April 28, and that the matter
was discussed with Wyatt within the ensuing week
6 Apparently there was not much work performed that entire day since , as we have seen.
Wyatt and the men were sitting in the lab with nothing to do sometime in the morning
of May 16 In the afternoon , also , there was apparently a paucity of work
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reduced to its simplest terms the General Counsel contends that Respondent was
aware of the union activity prior to the terminations and made the terminations in
order to stifle such activity. Respondent's contention is that the layoffs were made
for economic reasons and that neither Haston nor Wyatt became aware of any union
activity in the plant until March 17, the day after the layoffs. Bohach, in Respond-
ent's view, was not a supervisor. The manner in which Respondent asserts it learned
about the union activity on March 17 has been previously set forth in describing the
testimony of Haston and Wyatt.io
The General Counsel, on the other hand, asserts that Respondent was aware of the
union activity since the middle of March, through Wyatt and Bohach. In the General
Counsel's view, the knowledge of the two supervisors is imputed to Respondent.
Since the Respondent is a corporation that acted through its manager, Haston,
the General Counsel apparently would equate Haston's knowledge of union activity
with that of his supervisors. Such knowledge would therefore have existed since
about March 15 and as of the end of April, Haston, Wyatt, and Bohach would be
aware that the samplers had all signed applications and had asked the Union for a
charter. It is very difficult to find any basis in the iecord to conclude that Wyatt
and Bohach were hostile to the union activity or were opposed to having a union in
the plant. Certainly this is true for the period from March through May 16. All the
evidence establishes that during that period Wyatt was favorably disposed to the
union activity and encouraged it. Bohach was an active participant in the activity
and had signed an application and the letter applying for a charter. But let us
assume, arguendo, that management, Haston, and the supervisors, in view of the
whole record, including events after March 16, was at all times opposed to union
activity among the employees and to the prospect of having a union in the plant
The logical periods for opposition, including laying off employees and expressions
or statements calculated to discourage union activity, would be either the times when
talk of the union commenced in March or the end of April or early May when all
employees joined in applying for a union charter. There is not a shred of evidence
to show any opposition from Wyatt or Bohach during these periods or from Haston,
althbugh the premise is that the latter, as well as his supervisors, were aware of the
union activity and were hostile to such activity. This hostility was such that it
allegedly was the reason for laying off three employees During the aforementioned
period the union activity was going on and had gone as far as any organizational
activity can go. All the employees had discussed joining a union, without interfer-
ence; all the employees had signed up and had applied for a charter, without inter-
ference Can it reasonably be said that Respondent was waiting until the union
representative actually came in and demanded recognition before engaging in dis-
criminatory conduct. Generally, the only time employer opposition to union activity
manifests itself for the first time at the last-described stage is when the employer
learns for the first time when the union asks for recognition that its employees have
affiliated with a union . But the premise we are discussing is that the instant Employer
knew about the union activity from the beginning and at each significant stage thereof
but did nothing until it allegedly discharged the three men on May 16. Perhaps such
a theory would be tenable if immediately before March 16 or on March 16 some
significant act of union activity occurred or if the three men did something of sig-
nificance regarding union activity just prior to their layoff or that the record shows
some precipitating cause. The record is barren of such evidence. As far as appears
the last significant act of union activity was around the latter part of April when all
the samplers applied for a union charter. Between that time and March 16 there
is no evidence of union activity and evidently the men were simply waitine to hear
from the Union. Far from there being a precipitating factor or incident, the loneer
th^ time lapse from the date of application for the charter, in April, to the middle
of May, the less imminent appeared to be the union threat The delay in receiving
a reply from the Union, as far as the record shows, might be regarded as an indi-
cation that the Union was not prepared to represent these grain samplers. In any
event, there was no precipitating union activity that could be said to have galvanized
Respondent into an overt act of antiunionism on May 16, thus explaining why until
May 16 it did not do anything about its prior knowledge of union activity and its
presumably prior or continuing (but unmanifested) opposition to union activity.
10 It is apparent that adoption of either the General Counsel's position or that of
Respondent would greatly simplify the adjudication of this case If Respondent's evidence
is adopted the testimony of the General Counsel' s witnesses becomes virtually untenable
and vice versa . The Trial Examiner's view of the evidence, however, is somewhat differ-
ent from that of either of the parties
CORPUS CHRISTI GRAIN EXCHANGE, INC. 153
Perhaps the General Counsel's theory is that while Respondent, i.e., Haston, is
chargeable with knowledge of the union activity from the middle of March, through
Supervisors Wyatt and Bohach, Haston actually did not learn of the union activity of
the samplers, including Rackley, Hamilton, and Franklin, until March 16 when he
returned from his trip. Without dwelling on the question of logical consistency or
inconsistency , let us, at this point, discuss the situation from the premise that Haston
first gained the aforementioned knowledge on May 16. This would seem to entail
as a corollary the fact that Bohach had not previously informed Haston of the union
activity of himself and the others and that Wyatt had not known of such activity, as
he asserted at the hearing, or if he had known, he had not informed Haston because
he, Wyatt, was favorable to such activity and had encouraged it; or, least likely,
Wyatt had never thought to mention such a matter to Haston. Since Haston had
been in Toledo, Ohio, for a week, it is unlikely that he had learned, in Ohio, what his
nine samplers had been up to since March if he had not learned about it prior to
May 10 when he left Corpus Christi. But, as I believe the General Counsel asserts,
within the premise we are now examining , Haston knew about the union activity on
May 16 before he laid off the men and he laid them off for that reason. Quite appar-
ently, then, Haston gained his knowledge from some source. It would appear that
the General Counsel asserts, as he does in his brief, that the knowledge of Wyatt and
Bohach is imputed to Haston.
We have previously encountered some difficulty in the imputation approach in our
above discussion but let us assert that the imputation becomes operative on May 16
or that Wyatt or Bohach on May 16 tell Haston what they have known since March.
We turn then to assume, arguendo, that on March 16, for the first time, Wyatt or
Bohach, presumably Wyatt, informed Haston of the union activity and of the par-
ticipants therein . This of course again raises the question of why the silence since
March, why the unexplained reversal on the part of Wyatt from approbation of the
union activity and failure to inform Haston for almost 2 months. There is no basis
for saying that perhaps Wyatt did become convinced that the union movement had
become a serious threat whereas theretofore it had no serious aspects. The union
situation was serious in April when all the men had signed up and had applied for a
charter. It was no more serious on May 16 and if anything, the failure of the Union
to grant the charter by May 16 and the total absence of any evidence of any addi-
tional union activity between April and May 16, indicated a less serious situation.
Nor can it be said within the premise under discussion that since there was a lack of
work Wyatt decided to tell Haston about the union activity and thereby enable him-
self and Haston to utilize the layoff to crush the union aspirations. Aside from
the fact that such a supposition is inconsistent with Wyatt's attitude, the General
Counsel argues vigorously that there was no proven justification for any layoff.
Let us however pursue the theory of a pretextuous layoff. A layoff of the latter
type would entail positing that Respondent actually needed the three men and had
sufficient work for all its samplers. Since the presumed motive in the pretextuous
layoff was to frustrate or discourage the union activity, Rackley would be the
logical target. Although the union activity had started prior to the date of Rackley's
hiring, he had given the movement impetus and direction. Rackley was hired after
Hamilton and Franklin and on May 16 he also had the least total service in 1960
of any of Respondent's samplers. He, therefore, in the pretextuous layoff, could
be eliminated as the least senior sampler and the objective of the layoff would be
thereby achieved. Since the supposition is that work had not fallen off and that
Respondent needed samplers, the elimination of one man, Rackley, would not only
be a serious blow to the union activity but would also entail minimal effect on the
sampler complement. However, instead of the foregoing, Respondent also laid off
Hamilton and Franklin. There is nothing in the record to show that the latter two
were in any way outstanding in the union movement. There was no more union
activity on their part than there was by all the other samplers. By laying them off,
it is difficult to see that anything was accomplished insofar as the union movement
was concerned that would not be accomplished by Rackley's layoff. In addition,
Respondent was depriving himself of two samplers who, on the supposition that
there was actually no lack of work, were needed. If Respondent believed that the
layoff of more than Rackley would have a greater deterrent effect, it would seem
that one or two of the permanent samplers would be the likely ones to add to
Rackley. The union discussions had started among the permanent men before
Rackley, Hamilton, and Franklin were hired The permanent men continued
actively in the movement and, because of their more or less permanent status, union
activity among them was a much more serious threat than was the union sentiment
of the union samplers whose employment might end in a few months through
normal fall off in the workload An employer who is depicted as determined to
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frustrate union activity could no doubt conjure up a reason for terminating one or
more permanent samplers together with Rackley . Various types of inetliciency,
including alleged scooping of a boxcar, could be asserted as a reason for such ter-
minatlon .ll This however was not done nand only Rackley, Hamilton, and Franklin
were laid off.
In discussing the various facts of this case, it is apparent that we cannot ignore
certain evidence adduced by the General Counsel regarding alleged statements made
by Wyatt. These statements are placed by various witnesses as occurring on May
16. In substance , the alleged statements assert that Haston found out about the
union activity and the implication of the testimony of the General Counsel's wit-
nesses is that this was the reason for the layoff . The General Counsel 's case in
essential respects is based upon these statements and from the statements his theory
then goes back and explains the statements as attributable to the imputed knowledge
of Haston through his supervisors. It is our task at this juncture to examine the
evidence in detail and to resolve questions of credibility and other problems.
Based on the evidence of the witnesses as he evaluated it and synthesized it, as
well as upon observance of the witnesses , the Trial Examiner finds as follows:
When Haston returned on May 16, after being away since May 10 , he and Wyatt
discussed, in the morning , the fact that the anticipated work relating to the transfer
of grain on a ship had not materialized . That particular ship project was sup-
posed to start on a Wednesday, May 11 , according to Haston 's uncontroverted
testimony . The witness credibly stated that the ship job was supposed to take 5
days, entailing 24 hours of work around the clock for three shifts of grain samplers.
In anticipation of this work Hamilton , originally hired in 1960 on March 31 and
laid off for lack of work on April 28, was rehired on May 10 . Another man was
also contacted in anticipation of the added work . While Haston was out of town,
the ship project was canceled insofar as Respondent's securing of the work was
concerned . The anticipated hiring of the additional man who had not reported
was canceled as a result . Since Hamilton had already reported back to work he
was allowed to continue. The Trial Examiner is of the opinion that the record
shows that while Wyatt , as foreman , had the ostensible authority to hire and to
discharge , neither of these actions was customarily taken without at least apprising
Haston of the situation . And Haston was the man with the ultimate authority on
such matters . Respondent 's operation was relatively small and there was no super-
visory hierarchy between Haston and Wyatt . Consonant with the foregoing, Wyatt
testified that because of Haston 's absence for a week he had to see Haston as soon
as he returned "because we didn't need that much help . . . but he [ Haston]
wasn't there so we just had to let things ride until he got back . . . the morning
when he came back is when we had the layoff ." 12 Haston learned, on May 16,
when he returned , that the ship job had fallen through . Wyatt and Haston decided
at that time that they had too many men and they decided to lay off "the three
bottom ones off the time book." Rackley , Hamilton , and Wesley Franklin were
the lowest in seniority among the grain samplers .13
The cancellation of the ship work project , in the opinion of the Trial Examiner,
affected not only Hamilton who had been rehired in anticipation of such project
but also affected the amount of work generally available to Respondent. Since
the project would have entailed three shifts of samplers working around the clock
for about 5 days and since Respondent planned to do all its work with 10 samplers,
it is apparent that there was not too much other or regular work on hand.14
n "Scooping" is discussed at a later point in this report since the General Counsel
asserts that Respondent in effect falsely accused Wesley Franklin of scooping after he
was rehired on May 30 and was terminated on June 2.
121t is clear from the record including other portions of Wyatt's testimony as well as
the testimony of General Counsel's witnesses that the layoff was actually made later in
the afternoon The quoted portion of Wyatt's testimony above, in my opinion, clearly
means Respondent's decision on the layoff which, in a sense, was the layoff
Is Although Respondent had no formal seniority, it apparently, on layoffs, had followed
with some consistency this policy of laying off the lowest in seriority first General
Counsel's Exhibit No. 6, which contains the only information in the record regarding
complement with respect to 1960, shows six regular or permanent samplers while the
others, the three alleged discriminatees, had lesser periods of service, commencing
March 30 and 31 and April 16, 1960, respectively
14 The 10 samplers would be the 6 permanent samplers, plus Rackley, Hamilton,
Franklin, and a man who had been contacted but who was not hired when the ship job
failed to materialize.
CORPUS CHRISTI GRAIN EXCHANGE, INC. 155
In this connection the work situation on May 16, as shown by the record, is one
where the employees did not have too much work to do. They were sitting around
in the lab during part of the morning and were not working. In the afternoon,
Rackley, Hamilton, and Franklin were again around the lab and they were not
sampling boxcars or trucks. They were then put to the task of clearing up the feed
shack which occupied substantially the balance of their time on that day. Rackley
did sample one truck that he pulled into the elevator. Hamilton testified that there
were trucks on the premises and that he sampled one or two of them. Since it took
a sampler no more than 4 or 5 minutes to sample a boxcar, it is apparent that a
substantial number of boxcars and trucks would be necessary to keep a force of
nine samplers reasonably occupied.
Respondent's business is dependent upon grain shipments. The shipments in
turn are dependent upon seasonal factors, including the vagaries of the season such
as weather and climate. It would also be the Trial Examiner's opinion that market
conditions, including the views of farmers, shippers, and others, would enter into
the picture. In any event the nature of the business 15 customarily resulted in rapid
increases or decreases in personnel at least outside of a core of more or less permanent
samplers.16
The busy season for Respondent began about July 1 which usually marked the
inception of the grain harvest. Although Rackley, Hamilton, and Franklin were
hired prior to the harvest season, on April 16 and March 31 and 30, 1960, respec-
tively, the Trial Examiner is not convinced by this fact that they were hired as
permanent samplers. Hamilton, for instance , although hired on March 31 had
been laid off on April 28 for lack of work and rehired on May 10 in anticipation of
the ship project.17 It is the Trial Examiner's opinion that whatever the term of
description used, permanent or temporary, there were six men who had more
regular service with Respondent in 1960, prior to May 16, than did the three men
with whom we are concerned. Haston testified that he, in 1960, regarded six
samplers as a hard core minimum and the employment record introduced into
evidence, limited though it is , shows that from the beginning of April 1960, Fred
Franklin, Otwell, Klavemann, Bohach, Garza, and Lightsey worked steadily through
June 30 which is the last date covered by the payroll exhibit. No other samplers
had comparable records of steady employment.
15 Apparently many factors entered into the work picture. Because somebody had de-
cided to transfer grain from a ship, possibly to another vessel, Respondent was alerted
to handle a substantial amount of work. When the decision was changed, for some
reason or another, a reverse effect resulted. Haston testified that the ship project was
highly unusual.
v The data follows :
Number of Number of
1958-Week ending : samplers 1959-Week ending-Con samplers
April 3------------------- 5 May 21------------------- 3
April 10------------------ 4 May 28------------------- 3
April 17------------------ 4 June 4-------------------- 4
April 24------------------ 6 June 11------------------- 6
May 1-------------------- 8 June 18------------------- 8
May 8-------------------- 8 June 25------------------- 9
May 15------------------- 5 July 2-------------------- 12
May 22------------------- 5 1960-Week ending :
May 29------------------- 5 April 7------------------- 10
June 5-------------------- 4 April 14------------------
9
June 12------------------- 4 April 21------------------ 10
June 19------------------- 4 April 28------------------ 10
June 26------------------- 3 May 5-------------------- 8
June 30------------------- 7 May 12------------------- 9
1959-Week ending: May 19------------------- 9
April 2------------------- 8 May 26------------------- 6
April 9------------------- 8 June 2-------------------- 7
April 16------------------ 8 June 9-------------------- 6
April 23------------------ 4 June 16------------------- 6
April 30------------------ 4 June 23------------------- 10
May 7-------------------- 4
June 30------------------- 11
May 14------------------- 4
Hamilton and Maranitch . The latter was17 Two men had been laid off on April 28,
not rehired.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends in his brief that having made out a prima facie case
of discriminatory discharge of the three men Respondent's "vague statements" as
to lack of work do not sustain the burden of proof placed upon it to prove that
the discharges were nondiscriminatory.
If the General Counsel's reference to a prima facie case of illegal discrimination
means that upon conclusion of the General Counsel 's case alone there was a prima
facie case the Trial Examiner agrees. However, it is apparent that the record upon
which the Trial Examiner 's decision must be based is the entire record. It is true
that where there is evidence establishing or showing discrimination the Respondent
has the burden of meeting such evidence convincingly . But there is no simple
formula as to how Respondent must or can establish a defense . In the instant case
Respondent 's contention that the decision to lay off three men was due to lack of
work would have been stronger if it had produced written evidence to support its
position , e.g., correspondence regarding the ship contract , if any, and written records
of the number of boxcars and trucks on hand at various relevant dates . The General
Counsel, too, would have been in a stronger position if it had secured, by subpena or
otherwise , such records of Respondent since they might possibly have refuted
Respondent 's contention . The fact is neither party produced or sought to produce
such evidence.
The Trial Examiner is of the opinion that if a record contains substantial evidence
of discrimination , a sudden layoff of union adherents , in a business operating nor-
mally without marked fluctuations and with a stable work force, places a substantial
burden upon a respondent to convince the trier of fact that the terminations were
due to lack of work . In such situations it is fair to conclude that only the most
convincing evidence would sustain the defense . The defense would be further
affected if the prosecution 's evidence had included evidence tending to show no lack
of work, e.g., new hirings or overtime immediately following the layoffs or no
history of sudden layoffs . But the Trial Examiner is not persuaded that the fore-
going is the instant case . Prescinding for the moment from the question of whether
there is substantial evidence of discrimination on the record as a whole as distin-
guished from the General Counsel 's prima facie case alone, the instant record, in
my opinion , does not present a situation of a mere barebones statement by an official
of Respondent that there was a lack of work . Without repeating the evidence hereto-
fore set forth, including the fluctuating nature of the business , the credible testimony
regarding the ship contract , the past record of almost weekly layoffs and hirings, and
the work situation on the day of the layoff, it is the Trial Examiner 's opinion that
the record contains sufficient evidence to warrant the conclusion that the layoff
was not unusual or dissimilar from past fluctuations in personnel and that the evi-
dentiary indicia in the record justifying a layoff are not palpably transparent. The
testimony of Wyatt and Haston as to lack of work is not controverted by any sub-
stantial evidence and such tangible evidence as there is in the record , as distinguished
from their testimony, supports their testimony. The existence of economic justi-
fication for the layoff is of course not dispositive of the issue in the case and accord-
ingly we continue our consideration of the evidence and will make further findings
thereon.
Following the decision by Haston and Wyatt on the morning of May 16 to lay off
the three most recently hired men, it is found that on that same morning , Wyatt,
while sitting with the samplers in the lab "with nothing to do." announced that there
would be a layoff that day because there was not enough work.18
After lunch on May 16 , it is found that Haston asked Wyatt if he knew of any
union activity at the plant. The Trial Examiner believes that Haston 's inquiry pos-
sibly was prompted by remarks made at lunch to Haston by the superintendent of
the adjacent public grain elevator . The tenor of the lunch time remarks was that
the superintendent heard rumors that Respondent was laying off employees because
of union activity . 19 In reply to Haston 's question about union activity , it is found
"The Trial Examiner credits Wyatt as to this incident Wesley Franklin testified that
Wyatt had told them on that morning that there would be a layoff and in the afternoon
when Wyatt gave them their checks it came as no surprise because of the prior announce-
ment and since "the guys that hadn't been there as long are usually the ones that get
laid off and we figured it was us" At another point in his testimony Wesley Franklin
had stated that in the morning while in the lab Wyatt had said that the chief heard
about us trying to organize it union and that there was going to be a layoff The Trial
Examiner has not credited Franklin that Wyatt accompanied his announcement with a
reference to the chief having found out about a union
19 As noted, the public elevator employees who worked on adjacent pronerty to Re-
spondent's were represented by the ILA and officials of that local union had aided
CORPUS CHRISTI GRAIN EXCHANGE, INC. 157
that Wyatt either answered no, as both he and Haston testified, or that he may have
given a limited response such as, he had heard some of the men talking about a
union on one occasion 2°
Although the Trial Examiner is of the opinion that Wyatt knew about the union
activity as early as the middle of March and a day or two prior to April 28,21 I do
not believe that Wyatt revealed this information to Haston. The record demonstrates
that Wyatt's own attitude toward the union activity was admittedly sympathetic and
encouraging ; there is no evidence that he playing the role of informant and the
fact that no reprisal or antiunion action was taken or antiunion statement made
during the approximately 18 or 20 days when he was aware of the union activity,
including the application for a charter, indicates the contrary; Hamilton had been
rehired on May 10 although Wyatt was then aware of the prior union activity of all
the samplers, including Hamilton; there is no indication that prior to May 16 Haston
was aware of any union activity; the absence of such knowledge by Haston tends
to indicate lack of communication from Wyatt to Haston on the subject and by
the same token if Haston had manifested knowledge of union activity immediately
or shortly after Rackley and the others had confided in Wyatt, the opposite inference
would exist; the record shows that there was no precipitating union activity or de-
velopment between the latter part of April or early May and May 16 which would
cause some change in Wyatt's attitude and would cause him to fully inform Haston;
by the end of April apparently all the samplers, all the employees in the potential
bargaining unit, had signed applications and a letter to the Union applying for a
charter; as far as the record shows there was no further union activity during the
period through May 16 and the men were apparently waiting for a reply from the
Union; finally, if Wyatt had, on the afternoon of May 16, revealed to Haston for
the first time what he had known for several weeks, he might have foreseen that
he was placed in an embarrassing position with his superior for not having made an
earlier disclosure, particularly so since Wyatt was then, as both he and Haston knew,
on the threshold of a promotion to the higher job of grain inspector 22
Following the above conversation with Haston in the afternoon, Wyatt went out
and spoke with Fred Franklin and Bohach. Wyatt asserts that he asked them Ur
they were starting a union. This is consistent with Wyatt's denial that he had any
knowledge of union activity prior to May 16. However, since the Trial Examiner
has not credited this denial, he does not believe that Wyatt asked them whether they
were starting a union . It is found that upon Wyatt 's initiative reference was made
to the union activity during the conversation and that Wyatt said that Haston know
Respondent ' s samplers in their efforts to organize . It is not unlikely that, after Wyatt's
morning announcement of an impending Layoff, rumors and speculation as to reason may
have circulated and reached personnel of the neighboring company . Haston testified as
found above , but stated that the date was May 17 The Trial Examiner has previously
set forth his reason for rejecting this date In considering the testimony of Wyatt.
20 This latter type of answer Is to be found in Wyatt' s affidavit secured by the Board
agent during the investigation of the case The Trial Examiner has referred to the
affidavit as a factor in evaluating Wyatt's credibility on this and other points and In
arriving at conclusions concerning various Incidents
21 See the testimony of Rackley , Hamilton, Fred Franklin , and Garza , above, on this
point
22 The Trial Examiner is of the opinion that Bohach for 4 days , about the first of
April 1960, was acting as foreman during Wyatt 's absence . Thereafter , and until June 20,
Bohacli was an assistant foreman and was In effect training to be foreman He became
foreman on June 20 when Wyatt became an Inspector. Prior to June 20 It Is found that
Bohach exercised supervisory power in assigning men to their tasks and in writing work
tickets and checking on their work All the employee witnesses who testified about the
types of work performed by Bohach during this period stated that he assigned work and
none of these witnesses or any witnesses stated that Bohach spent his time In sampling
personally . He did not hire and discharge on his own authority although he probably
could do so after clearance with Wyatt or Haston Bohach was closely associated with
the other employees In their work and in their union activity He was a full participant
In the latter apparently with the full acquiescence and approbation of the employees.
His union attitude and activity was indistingiutihable from that of the other employees
and there is no evidence that his union role was any more favorable to management
than that of other employees . As of May 16 the Trial Examiner finds no basis for con-
cluding that Bohach had informed Huston of the union activity although I believe he
exercised supervisory functions and was an assistant foreman and supervisor . The doc-
trine of imputed knowledge In the particular circumstances of this case has been previ-
ously discussed.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it 23 During the conversation with Bohach and Franklin, Wyatt asked what
it was that the men wanted and was told they wanted a raise in pay. Wyatt's state-
ment to the two men on that occasion that Haston knew about it, in my opinion, meant
and was understood to mean that Haston was aware that union activity was going
on. Haston's earlier inquiry to Wyatt had indicated that Haston had wind of such
activity although not the specifics thereof. Wyatt's mention of such a fact to
Franklin and Bohach was in effect a warning, and, in context, it appears to have
been a friendly warning consistent with Wyatt's relationship with the men on this
-entire subject of their union activity.
Fred Franklin, a permanent grain sampler and a participant in the union activi-
ties, testified that on the morning of May 16, outside the lab, Wyatt told himself and
Klavemann that Haston had found out about us trying to go union and he thought
there was going to be a little layoff. According to Franklin's testimony this was
the extent of the conversation. Hamilton testified that between 2 and 3 p.m. on that
day Fred Franklin came into the lab and said that "somebody is supposed to get
laid off."
The Trial Examiner is not persuaded as to the accuracy of Franklin's aforemen-
tioned testimony. It is my opinion that if, as Franklin testified, Wyatt had told
'him that morning that Haston "had found about us trying to go union and he
thought there was going to be a little layoff" Franklin would have passed on this
information to his fellow union activists promptly 24 Certainly the lunch period if
not earlier, would appear to have been the logical time for such mention. When
Franklin finally, between 2 and 3 p.m., did refer to what he had learned, he referred
only to a prospective layoff and left out what, in my opinion, was the most signifi-
cant point both to himself and to the other men, namely the alleged statement that
Haston had found out about the union activity and was going to lay off some of the
men. The Trial Examiner has previously found that Wyatt had announced that
morning in the lab that there would be a layoff for lack of work.25 It is the Trial
Examiner's opinion that, as found, Wyatt did speak to Franklin and Bohach that
afternoon and had the conversation previously described. In that conversation the
layoff was not referred to. It was a fact already announced and Wyatt's purpose in
speaking to Franklin and Bohach was as described.26 Wyatt did tell Franklin that
Haston knew about the union activity.
2' The Trial Examiner is inclined to believe that the reference to the union activity was
probably as to the present status of such activity, including more specific information
than Wyatt had and was also probably directed to ascertain precisely what the men
wanted or hoped to gain through a union, since Wyatt's last information had been
gained in the latter part of April or early in May. In any event, the finding made above
is as stated. In his affidavit, Wyatt had said that the conversation was with Bohach
and Klavemann , one of the regular samplers. Neither of these individuals testified. The
Trial Examiner is of the opinion that the reason why Wyatt spoke to the two men after
Haston's inquiry to Wyatt about union activity was either because Haston was dis-
satisfied with Wyatt's response or because Wyatt, having perceived Hasten's interest in
the subject, upon reflection decided that his own status might be affected unless he se-
cured up-to-the-minute information on the union activity. By making it contemporary
inquiry of Bohach and Franklin, Wyatt was in a position to then report to Haston on
the basis of such inquiry. Thus he would be reporting not only the latest information
but could reveal the time and source of such information without reflection upon him-
self As previously explained, Wyatt would probably have been in a poorer position if
he had told Haston, when the latter first inquired on May 16, that he had known about
the union activity since the latter part of March but had not reported such information
to Haston Haston testified that when he first spoke to Wyatt in the afternoon about
union activity at the plant Wyatt said he knew of no such activity. Later, in the after-
noon, according to Haston, Wyatt came back and reported to Haston that he had ]earned
that the men were pretty far along with the Union
24 Discussion about forming a union was going on when Rackley was hired in April
Franklin was one of the participants in the union activity both prior to Rackley's hiring
and thereafter and he had discussed such matters wtih Wyatt He was as interested in
the subject as any of the other samplers
25 See the testimony of Wyatt and Wesley Franklin
20 Since Franklin did not testify that he told the other men on the afternoon of May 16
that there was going to be a layoff there is some doubt about Hamilton's testimony on
this score not only for this reason but because the layoff had been announced publicly
in the morning and not confidentially to Franklin. It is possible that after Wyatt had
the conversation with Franklin and Bobach in the afternoon, as described heretofore,
and after Wyatt stated that Haston knew about the union activity, Franklin passed that
CORPUS CHRISTI GRAIN EXCHANGE, INC. 159
Regarding the actual terminations we have Rackley's testimony that about 4:30
p.m. on May 16, Wyatt gave checks to Rackley, Hamilton, and Wesley Franklin.
Wyatt said, "You boys come back when the season is heavier." This was a rather
cryptic announcement but no one asked any questions of Wyatt. It is the Trial
Examiner's opinion that both of the foregoing factors are explainable by and are
consistent with the fact that that morning Wyatt had announced that there would
be a layoff that day for lack of work. The men knew that they were the junior
employees among the samplers and, as Wesley Franklin testified, ". . the guys
that hadn't been there as long are usually the ones that get laid off and we figured
it was us." As Wyatt had come into the lab with the checks and before he had
said anything, Rackley asked if one of the checks was his. Rackley then testified
that, after they left the lab with their checks and were outside, Wyatt said to him
and Hamilton, "It looks like the chief found out what you all were doing." Hamil-
ton testified that "Wyatt came and he handed me my check and he gave Roy
[Rackley] one and he said, `Well, I guess you know that the chief has found out
what you all were trying to do: " Wyatt denied that he said anything of the above
nature. Mitchell who was present corroborated this denial and said that he went
outside as they all were leaving and said to Rackley that he guessed he would be
going to New Orleans now and Rackley said he was. Mitchell said he heard no,
remarks of the above nature from Wyatt. Wesley Franklin testified that Wyatt
handed him his check and said, "I guess you know what this is for . . . good
luck."
After careful consideration the Trial Examiner is not convinced that Wyatt,
when he gave out the checks, stated publicly, as Hamilton testified, that he guessed
they knew that the chief had found out about their union activity. Neither Wesley
Franklin, Mitchell, nor Rackley, all of whom were present, heard such a public
statement by Wyatt. As between Rackley's version and Hamilton's the former has
more plausibilities in that the remark about the chief was allegedly made later,
outside the lab. However, I find it difficult although not impossible to understand
why Wyatt, who had admittedly, according to Rackley, told them as he gave out
the checks that they should come back when the season is heavier, should then seek
to place management and himself in a noose by clearly implying that the layoff had
nothing to do with lack of work and was due to the union activity. The two state-
ments were inconsistent and it served no purpose to tell the same persons incon-
sistent stories. If the layoff was for union activity and if the men were so informed,
why tell the men to come back when work was available. There was no reason to
refer to lack of work and then refer to a reason wholly inconsistent therewith.
This was not the case where the employer places "lack of work" on a written ter-
mination slip in order to have a record to show in defense of its action. Wyatt was
making no more of a record by his oral statement telling the men in effect that they
were laid off for lack of work and should return in the busy season than he was
by telling them that Haston had found out about the union activities, thereby im-
plying the reason for the layoffs. There was no neutral third party present for
whose benefit Wyatt might wish to make a statement for the record. The Trial
Examiner finds that Wyatt did not make the statement attributed to him 27
information on and a connection was drawn between the layoff and Wyatt's admonition
that Haston knew about the union activity. The layoff decision, however, and Wyatt's
statement have been carefully described, heretofore, both in time sequence and in con-
text and the findings of the Trial Examiner thereon have been stated
271f the testimony of Rackley and Hamilton had been that Wyatt, after paying them
off and telling them to return when the season was busier, had told them privately that
Haston was aware of the union activity in the plant, a more difficult problem of resolu-
tion might have existed. Rackley's testimony came close to the foregoing but the com-
bined twist of his testimony and that of Hamilton was, in effect, that Wyatt said,
"Haston found out about your union activity and that is why you are being laid off."
As the Trial Examiner views the record, it is possible that Wyatt after telling the men
to come hack in the busy season might have privately told them that IIaston was aware
of what was going on about having a union in the plant Such a confidence would have
been prompted by the fact that Wyatt had been a confidant of the men regarding the
organizing and was aware of Rackley's interest and leadership in the union effort and he
simply was letting Rackley know that Haston was now aware of the movement This
was the same type of statement that Wyatt had made to Fred Franklin, earlier on the
same afternoon, to wit. Haston knows about the union activity Neither statement, in
context and in view of the findings made about the time when the decision to lay off
was made and the reasons therefor, carries the tilt of phraseology and the implication of
the testimony given by Hamilton, and to a lesser extent by Rackley's testimony, as to
what Wyatt said, "It looks like the chief found out what you all were doing "
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been found , Wyatt on May 16 in discussing the union activity had asked
Bohach and Fred Franklin what it was they wanted. 1 hey told him that they wanted
a raise in pay. Later, on the same day, Wyatt admittedly reported to Haston that
the men were well immersed in the idea of having a union. Although Wyatt did
not so testify, nor did Haston, it seems highly unlikely that when Wyatt reported
about the men's interest in a union he did not also mention that he had found out
that they wanted more money. In the Trial Examiner's opinion Wyatt did so
report.
On Wednesday or Thursday, May 18 or 19, Bohach, Otwell, Garza, and Fred
Franklin, all samplers , went to Haston's office. The evidence is not clear as to
how this meeting was initiated. It is the Trial Examiner' s opinion that the sam-
plers were concerned about the fact that Haston was now aware of the union
activity, as Wyatt had told Bohach and Fred Franklin on May 16, and that Haston
was not favorably disposed toward such activity, as Wyatt had told Garza and
others on May 17. Although layoffs were not uncommon , it is also a fair inference
that any layoff has some effect on employees. The meeting probably resulted be-
cause the men thought it would be a good idea to talk to Haston at that stage and
there is indication in the record that they first discussed such an idea with Wyatt
or one of the grain inspectors. Wyatt testified that he was aware that the four men
were going to see Haston.
In any event the four men, above described, met with Haston in his office. The
substance of the conversation that ensued was that the men said that they were
interested in a pay raise and improvement in some of their working conditions.
Haston agreed to grant a 20-cent per hour pay increase and to improve some of the
working conditions and it was mutually agreed or understood that the men would
forget about the Union as a result .28 While the testimony persuades me that the
men did tell Haston that they wanted a raise, I find that Haston gave them to
understand that in return for the wage increase they were to forget about the
Union. The fact that the men readily agreed to this, as I believe they did, does
not alter the finding that the wage increase was given as a quid pro quo for such
an understanding. As Franklin testified, ". . he [Haston] said both sides of us
would stand up to our agreement. .. ." 29 Conditioning the wage increase on the
understanding that the union activity was to be abandoned was violative of Section
8(a)(1) of the Act.
Wesley Franklin testified he was at Respondent' s premises on May 30 to pay a
$2 debt he owed. He happened to see Wyatt and Bohach and Wyatt said they
needed somebody to go back to work. Franklin said he would have to talk to
Hamilton and Hartley. The latter was president of the union local at the adiacent
public elevator. Franklin then went and spoke to Hartley and returned. Wyatt
told him to see Haston . The latter said he did not need anyone. After Franklin
left Haston's office, one of the samplers came after him and said Haston needed
somebody so Franklin went to work.
On the morning of June 2 Bohach asked Franklin if he had talked to a labor
relations man that came down and Franklin said he had done so the night before.
28 Haston testified that between the layoffs on March 16 and the meeting in his office he
had caused a copy of the contract between the Houston Merchants Exchange and the ILA
to be placed in the lab where it could be read. Hasten said he did this so the men could
see a union contract The contract which is in evidence shows, safer a1ia. higher wage
rates for grain samplers than Respondent was paying before it gr.inted the 20-cent raise
The raise that Resnondent granted brought its rates into line with the contract rates,
perhaps even a fraction higher In the Trial Examiner's opinion the purpose of Haston's
aforedescribed use of the contract was to show the men the rates in a union plant, rates
that Haston was prepared to and did match without the presence of a union Haston
might well have been prepared to give other provisions similar to those obtained by the
Union There is no evidence that his employees asked for such things although they did
ask for a wage increase Haston is the only witness who testified about the presence of
the contract in the lab Whether the employees had actually seen it is not known.
29 Garza's testimony was conflicting At one point lie testified that ITaston said he
would give a 20-cent raise and equipment that was needed if the men would give him
their word that they would forget about the Union Later, Garza testified that Haston
said the wage increase would not prevent the men from continuing with the Union if they
wished In viewing the testimony of all the witnesses regarding the meeting, including
that of Wyatt, Haston, Franklin, and Garza, I am persuaded that Haston did give those
present to understand clearly that the benefits he agreed to grant were in return for the
employees' abandonment of the Union
CORPUS CHRISTI GRAIN EXCHANGE, INC. 161
That same morning Bohach asked the same question of Garza 30 Later, that same
day, June 2 , Wyatt handed Franklin his check together with a note stating that he
sampled a car incorrectly. Franklin was thereupon terminated.
When Wyatt gave Franklin his check on June 2 he asked Wyatt to show him the
boxcar and the ticket that he was supposed to have scooped 31 Wyatt said there was
no point in doing that since Franklin already had his check. Franklin also received
no satisfaction from Bohach and Mitchell , the grain inspector.
Franklin denies that he scooped a car. He states that he, Garza. and Otwell had
been doing the sampling and Bohach wrote out the tickets.32 Wyatt testified that on
the morning of June 2 there were four boxcars concerning which appeals had been
filed by the shipper. The latter appealed because he was not satisfied with the grade
given to the grain as a result of the initial sampling and grading. Wyatt took the
numbers of the appealed cars and went to where the cars were standing. He noticed
that one of the cars had been scooped. This conclusion was based on his experience
which observed that there were a few footprints in the grain at the door of the car
but at each end of the car there were no footprints and the grain was smooth and
had dust thereon, all indicating to Wyatt that the sampler had not gone to the ends
of the car to take samples as prescribed 33 Wyatt stated that the initial sample had
been taken in the morning and he himself had gone down on the appeals right after
lunch. He said that Bohach and Mitchell were with him when he saw the afore-
described scooped car. Mitchell corroborates Wyatt's testimony that he, Mitchell,
also saw the car in question and that it was Mitchell's opinion that it had been scooped.
Bohach did not testify.
After Wyatt had made the foregoing inspection he took down the number of the
car, returned to the office, informed Haston, and they took the sampling ticket out of
the file and learned at that point that the sampler of the particular car had been
Wesley Franklin. Wyatt got Mitchell and Bohach who verified to Haston that they
had also seen the car and that its condition showed it had been scooped. There-
after Franklin was discharged for scooping, which was the usual penalty for such
offense.34
Through Wyatt, the General Counsel elicited evidence that the grain in the cars
was yellow milo which was described as small round seeds that are hard and about
the same size or slightly larger than a BB shot. The seeds were dry. It also appears
that the boxcars with the yellow milo had come some distance before they reached
Respondent's premises. When the cars were originally sampled by Respondent's
samplers that morning they were near the elevator. In the afternoon when the
scooping was discovered the cars had been moved 250 to 300 yards from the elevator.
Some bumping of the cars was entailed when they were moved
The implication which the Trial Examiner believes the General Counsel would
have him draw from the foregoing physical facts is that the vestiges of footprints
in the cars would have been erased or substantially erased by the bumping of the
cars when they were moved about 300 yards between the morning sampling and the
afternoon checkup. In view of the nature of this particular grain the foregoing
possibility does not appear implausible. But it also would appear that in the course
of the original journey to Respondent's premises the grain might have become so well
settled in the boxcars that the subsequent short movement between morning and
afternoon on June 2 would have had little effect on footprints or other marks that
had been made on the contents of the car that morning The Trial Examiner is far
from being an expert on such a subject and in the face of the testimony of Wyatt and
Mitchell, two expert ahd experienced men who testified as to the condition of the
car when they inspected it, I am unable to say that the facts testified to were not
11 The record indicates that the field examiner from the Regional Office had interviewed
witnesses the night before
3' As previously explained the sampler is supposed to use a probe to extract sample,
from five distinct locations in a car Scooping means that the sampler simply takes a
few handfuls of grain from the car near the door and places them in the sample bag
The record shows that Respondent regarded scooping as a major defense since it meant
that a representative sampling of the whole cai was not accomplished
33 The tickets are placed in the sack that the sampler takes into the boxcar The
ticket has thereon the initials of the sampler assigned to the car and identifies the car
and so forth Either Wyatt or Bohach customarily wrote out the tickets
33 The other three cars, according to Wyatt, did have footmarks at the ends of the cars
34 Subsequently, the original sample grade of the car on which the appeal had been
filed was sustained This fact was not necessarily inconsistent with the fact that the
original sample had been scooped
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credible. While there is not conclusive proof that Franklin was the man who sampled
the particular boxcar, the evidence, aforedescribed, would warrant the conclusion that
he had done so. It is so found.35
The circumstances relating to Franklin give rise to suspicion. He was rehired on
May 30, prior to the time he had filed a charge with the Board regarding his May 16
layoff. On the morning of June 2 he was interrogated by Bohach as to whether he
had gone to see the Board field examiner the night before and he answered in the
affirmative. He was discharged later that day on a charge of scooping a boxcar.
The scooping affair could have been a pretext or a situation engineered by Respond-
ent but on all the evidence the Trial Examiner is not persuaded that the burden of
proof has been sustained. Dismissal of the allegation of discrimination on June 2
is recommended.36
Following the layoffs on May 16, Respondent's force consisted of six samplers
and Foreman Wyatt.37 This complement continued unchanged from the week end-
ing May 19 to the week ending June 16, with the exception of the fact that Wesley
Franklin was rehired on May 30 and terminated June 2. On the payroll for the
week ending June 23, Wyatt's name no longer appears since he had been made an
inspector. Bohach is listed for the first time therein as foreman, plus F. Franklin,
Otwell, Klavemann, Garza, and Lightsey. Also appearing are the names Sweet,
Bartel, M. Kennemer, Rankin, and West. For the week ending June 30, the above
names again appear, plus A. Kennemer and B. Reeves. The 1958 record shows
that Bartel and Rankin were students and were on the payroll for the week ending
June 30, 1958. Since that period was about the commencement of the harvest
season it is not unlikely that they worked during ensuing weeks. M. Kennemer
worked the weeks ending April 2, 9, and 16 and July 2, 1959. Bartel worked the
weeks ending June 11, 18, and 25 and July 2, 1959. Rankin worked the weeks end-
ing June 18 and 25 and July 2, 1959.38 Other than as indicated the names of the
men who appear on the June 23 and 30, 1960 payrolls, do not previously appear
in the record.
Haston testified that he had hired the additional samplers on June 20 because word
had been received that the harvest was early and grain would start coming in on
June 20. He stated that the men he hired had been coming back for several sum-
mers and were senior in point of service to Rackley and Hamilton. In rebuttal
Rackley testified that Sweet had come to work for the first time in 1959 and Rackley
said he had instructed Sweet how to sample a boxcar. The Trial Examiner credits
this testimony of Rackley. With doubt thus cast upon Haston's above testimony and
with such payroll excerpts as were in the record indicating that not all the men
es Garza testified that be was sampling cars with Franklin that morning. He stated
that he observed Franklin scoop one of the cars.
36 According to Wesley Franklin, about a week or a week and a half after his June 2
termination he was talking to one of the inspectors at Respondent's plant when Easton
came in Franklin testified that Easton asked him why he had not filled out the written
statement (apparently the charges of unfair labor practice and the supporting statement)
with the labor relations man when Hamilton and Rackley did so. The record shows that
the two last-named individuals had filed charges regarding their respective May 16 lay-
offs on May 23, 1960. Franklin replied to Easton's question by allegedly saying that it
was due to an accident that he had had. Easton then asked what good did they think
they would accomplish from all that. Franklin said he did not know. The conversation
ended, according to Franklin, with Easton saying, "Well, if you will stick around a little
later, why, in about a week or so , well, I might be able to put you back on." Easton
testified that the conversation occurred about a week or 10 days after Franklin's June 2
termination. On the date, therefore, both Franklin and Easton agree. Haston testified
that when he saw Franklin he said, "Aren't you one of the boys that filed one of those
charges?" And Franklin said , yes, he was. This was all that was said, according to
Easton. Since Franklin filed his charge on June 6, 1960, and both witnesses agree that
the conversation occurred a week or 10 days after Franklin's June 2 termination, Easton's
testimony is the more credible. Franklin had filed his charge by that time and Respond-
ent would of course know such fact by reason of the service of the charge upon it. The
import of Franklin's version was that before he had filed a charge but after his June 2
termination, Easton was disposed to rehire him for that reason notwithstanding his prior
offense of scooping The Trial Examiner does not credit this testimony of Franklin.
87 Bohach, F. Franklin , Otwell, Klavemann , Garza , and Lightsey . Bohac 's status as a
sampler has been previously discussed.
88 See the remark above concerning the harvest season . The excerpts from the payroll
that are in evidence cover only the period of April, May , and June, in 1955, 1959,
and 1960.
CORPUS CHRISTI GRAIN EXCHANGE, INC. 163
hired in June 1960, had worked previously for Respondent, I am unable to conclude
that all the newly hired men had greater length of service than Rackley and Hamil-
ton. In my opinion the payroll records were within Respondent's control and its
failure to support the controverted statement of Haston by adducing its records
warrants the conclusion that seniority was not shown to be greater in all the newly
hired men than it was among the samplers who had been laid off in May and who
were not rehired.
Rackley testified credibly that Haston told him in 1959 that he would keep a record
of the boys who had done good work and he would call them back each season.
Without expressly denying having made such a statement, Haston testified that
generally he told the students whose records had been good that they were welcome
to come back the following year.39
Since Haston at the hearing attributed the hiring of additional samplers other
than Rackley and Hamilton, in June 1960, to allegedly greater prior service, it is
evident that seniority is asserted as a determining factor. While Respondent had
no contractual or other obligation to follow seniority in hiring or in layoffs, it is
evident from the record that normally it followed such a rule and asserted that it
did so. Perhaps the rule was not applied with absolute precision as to instances in-
volving a few days or a week in the case of seasonal employees but even here it was
followed as the basic norm.
There is substantial ground for saying that in 1959 Respondent planned to call
back in 1960 the seasonal employees who had performed satisfactorily in the pre-
vious season, and the inference to be drawn from Haston's testimony that the men
hired in the latter part of June 1960 had worked for him during several previous
seasons supports such a conclusion. Haston, who had the information, did not
testify that Respondent in 1960 had not called or communication with the men it
hired in June 1960. The import of Haston's testimony is that these men were called
back by Respondent because of their prior service. But prescinding from the ques-
tion whether Respondent called men back in June or whether the men had applied
and then were taken back, we have in the case of Rackley and Hamilton a somewhat
different situation . This is not an issue of whether men who had worked in the
1959 season had or had not been called back by Respondent at the inception of the
1960 season. These men had been already hired in 1960,,a few months prior to the
harvest. They were laid off on May 16 for lack of work. While Respondent might
not have known that a student who had worked in the harvest season of 1959 was
available or interested in working in 1960, it was evident that the three men in
question were available for work and wanted to work in 1960. Their severance
had been involuntary. Hamilton, who had been laid off on April 28, 1960, for lack
of work, had been recalled by Respondent, by Respondent writing to him, on May
10 when Respondent had reason to believe that more work was available. The Trial
Examiner is of the opinion that normally and reasonably Respondent would have
recalled the laid-off samplers for the harvest season which commenced about 35
days after their layoff.40 This it did not do and its action is sought to be explained
on the ground of seniority.
The Trial Examiner finds Respondent 's aforementioned position unconvincing. It
is my opinion that the evidence warrants the conclusion that Rackley , et al., having
been hired in 1960 prior to the season and having been laid off for lack of work not
long prior to the season , would normally have been recalled prior to students who
had worked during the summer season in prior years regardless of overall seniority 41
89 Haston was asked specifically if Rackley's testimony that what he had said in 1959
was correct. He answered, "I don't recall the complete conversation there" and then
went on to testify as described above. In a letter that Haston wrote to the Board after
the charges had been filed he stated, inter alia, regarding Rackley, "due to lack of re-
ceipts until harvest we laid him off with the thought of calling him back for the harvest "
40 As appears from Haston's testimony the harvest season in 1960 commenced about
10 days earlier than usual. Respondent became aware of the impending early start of
the busy season from one of its principal customers It is apparent that the laid-off men
had no way of knowing of this impending early beginning of the season
41 There is no assertion that Rackley and Hamilton were not good samplers or satis-
factory employees. All the evidence indicates the contrary. Actual payroll records that
are in evidence are in the handwriting of the payroll clerk. In this handwriting, inter
elia, there, appears on Rackley's record the notation "(good)"; on Hamilton's record the
words are "( real good sampler) (good)"; Franklin's record as of May 16 bears the nota-
tion "(good)." Haston testified that he had not authorized such notations. However, it
is the Trial Examiner's opinion that in Respondent's relatively small operation, with one
614913-62-vol. 132-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But even on an overall seniority basis this record does not support Respondent's
claim. Considering the men hired in the latter part of June 1960 and resolving any
reasonable doubts in Respondent's favor , we can concede arguendo that Bartel, M.
Kennemer, and Rankin had worked previously for Respondent. There is no evidence
in the record that this was true of A. Kennemer and Reeves. As to Sweet, it has
been found that he did not have greater seniority than Rackley or Hamilton, having
been taught how to perform sampling work by Rackley in 1959.
In the Trial Examiner's opinion there is substantial evidence in the record that
after the layoffs on May 16, 1960, Haston learned of the union activity among his
samplers. Both Haston and Wyatt so testified. When it was apparent to him that
Haston had wind of the union activity Wyatt advised various samplers of this fact,
as described hereinabove. The most reasonable interpretation of this latter action
on the part of Wyatt was that Haston's knowledge of the union activity was a sig-
nificant fact in Wyatt's mind and he considered it significant enough to relay the
information to his subordinates 42 The record is clear that , while the men had
informed Wyatt of their union activity as early as March and thereafter, they ap-
parently were careful not to convey the same information to Haston. As previously
found, neither Wyatt or Bohach imparted to Haston their own information regarding
the union activity prior to the afternoon of May 16 when Haston himself had be-
come aware of such activity from another source. The import of the foregoing
failure to inform Haston regarding the Union on the part of both the men and the
supervisors was that it was assumed or known that Haston would not be favorably
disposed. Both the employees and Supervisors Wyatt and Bohach were well dis-
posed to the unionization of the plant. If any of them had believed that Haston was
similarly disposed or would be indifferent regarding the matter, it is fair to conclude
that Haston would have been informed either by the employees or by his supervisors,
particularly since the latter presumably had the normal duty of so reporting. The
distinct, and, I believe, designed effort to withhold the union information from
Haston is indicative of what was believed to be Haston's attitude on the subject.
Wyatt's warning on May 16 that Haston now knew about the union activity is
consistent with the foregoing. The belief on the part of the employees could have
been wrong and Wyatt could have been wrong in his estimate. However, the latter
is not likely since Wyatt was close to Haston as the next highest ranking supervisor.
Moreover, there is definite evidence that the prelayoff estimates of Haston's attitude
toward the Union were accurate. Wyatt, on about March 17, as has been found
previously, stated that Haston did not like what the men were doing about trying
to organize a union. The reaction of the balance of the employees in the light of
the facts as they had learned them was to readily agree with Haston on March 18
or 19 to forget about the Union in return for the wage increase and other benefits.
The agreement that the Union would be dropped in return for the wage increase is
attributable to the fact that the men had previously learned definitely what they
had at all times believed, namely, that Haston did not like the idea of his plant being
organized.
Conclusions
It has been found that the May 16 layoffs were made for economic reasons and
that the decision was reached prior to the time that Haston became aware of the
union activities . It is recommended that the complaint allegations regarding the
illegality of the May 16 layoffs be dismissed. It is also recommended that the com-
plaint allegations regarding the termination of Franklin on June 2, 1960, be dis-
missed. The Trial Examiner recommends dismissal of the allegations that Franklin,
since June 2, 1960, was not reinstated or reemployed because of his union activity or
because he filed charges or gave testimony under the Act.
The Trial Examiner finds that Rackley was not reinstated or reemployed on or
about June 20, 1960, when the busy season commenced, because Respondent had
payroll clerk, working directly under Haston's supervision, we do not have a huge
corporation with hundreds of faceless clerks for whose notations the head of the corpora-
tion might not be held responsible It is very difficult to conclude that Respondent's
clerk under all the circumstances would have undertaken to make such entries without
authority, express or implied, to do so Nor do I believe it reasonable to believe that such
a clerk of his own volition without at least some indication from the operating super-
visors would have undertaken to make such notations Regarding Franklin, in addition
to the notation "(good)" as of his layoff on May 16, a notation borne out by the fact
that he was rehired May 30, there is also the notation, as of June 2, "did not sample car
of grain carefully-scooped sample of grain "
42 Of what consequence was it to tell employees that Haston knew about the activity
if Haston was indifferent on the subject
CORPUS CHRISTI GRAIN EXCHANGE , INC. 165
become aware of his union activity on May 16 ; this conduct was violative of Section
8(a)(1) and ( 3) of the Act; as of May 16 and thereafter when Haston became
aware of such activity and Wyatt informed Haston thereon the Trial Examiner be-
lieves that it would be unrealistic not to infer that Wyatt 's knowledge of Rackley's
leading role in such activity became known to Haston and that the knowledge of
Wyatt and Bohach were imputable to Haston ; by May 16 the entire matter was out
in the open and by May 18 or 19 the Union was abandoned in the plant; whatever
factors might have prompted prior reticence on Wyatt 's part no longer existed. It is
also found that Rackley and Hamilton were not reinstated or reemployed on or
about June 20, 1960 , because they had filed charges under the Act on May 23, 1960,
a fact known to Respondent ; the charges and their processing were apparently what
prompted Bohach to interrogate Wesley Franklin and Garza on June 2, 1960, as to
whether they had gone to see the Board agent investigating the charges , such interro-
gation , in my opinion , constituted illegal interference with the rights guaranteed to
,employees under Section 7 of the Act; the inhibiting effect of such interrogation and
,the apprehension engendered is illustrated by the fact that Garza had first told
Bohach that he had not gone to see the Board agent but later admitted the fact when
Franklin told Bohach that Garza had also been present; 43 the illegal interrogation is
violative of Section 8(a) (1) of the Act and is an indication of Respondent 's reaction
to the charges and their processing ; 44 Haston 's attitude toward having a union in the
plant after he became aware of the union activity was supplemented by the filing of
the charges that made it clear that Rackley and Hamilton had been engaged in the
union activity and were still intent on the union cause ; 45 Respondent s failure to
recall Rackley and Hamilton , two experienced and capable samplers, at a time when
it needed employees , under all the circumstances previously described is confirmatory
of the fact , otherwise without tenable explanation , that they were discriminated
against is violative of Section 8(a)(1), (3 ), and (4 ) of the Act.
It is further found that Wyatt's interrogation of Fred Franklin and Bohach on
May 16 regarding the union activity was not illegal in view of Wyatt's then known
attitude toward the union activity . Dismissal of this allegation is recommended; dis-
missal of the allegations that on May 16 Wyatt told employees that there would be
a layoff to discourage union activities and the allegation that on the same date Wyatt
told certain employees that they were laid off because Respondent had learned of
their union activities and was laying them off for that reason is recommended; it is
also recommended that the allegation that Hines told employees on May 18 to deal
directly with management and that they would thereby achieve better benefits with-
out a union be dismissed.
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 of Respondent described in section I, above, have a close , intimate,
and substantialy 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
thereof.
V. THE REMEDY
Having found that Respondent discriminatorily and illegally failed and refused to
recall or rehire Rackley and Hamilton on or about June 20 , 1960, or thereafter, it
will be recommended that Respondent offer said employees reinstatement to their
former or substantially equivalent jobs, displacing if necessary any employees on its
payroll who are junior in length of employment and who were hired on or about
43 Illustrative demonstration of the effect of illegal conduct is of course not a necessary
Ingredient to finding whether or not conduct is normally calculated to interfere with
guaranteed rights under the Act
4413y June 2 when Bohach interrogated Franklin and Garza , Haston ' s opposition to
the union activity was known and Bohach as well as the others had promised Haston
that they would abandon the Union. In view of Bohach's supervisory status and the fact
that his own former participation in the Union was now supplanted by Haston's policy
of opposing the union activity , it cannot be inferred that the interrogation was simply a
conversation between one employee and another.
49 The charges stated , inter alga, that the Charging Parties were terminated because of
their activities in behalf of the ILA. It is also to be noted that by May 18 or 19, 1960,
all the samplers except Rackley , Hamilton , and Wesley Franklin had forsworn the Union
and had promised Haston to abandon union activity Rackley and Hamilton not only
had not forsworn the Union but had engaged In further union activity by the filing of
the charges alleging that they had been discriminated against for union activity
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 20, 1960, or thereafter. In the event employment is not then available for
Rackley and Hamilton, it is recommended that they be placed on a preferential list
with priority for hiring in accordance with nondiscriminatory standards heretofore
used by Respondent and thereafter offer them employment as such employment be-
comes available and before other persons are hired for such work.
Backpay is recommended to make whole the above employees against whom Re-
spondent has discriminated for any losses they may have suffered by reasons of the
discrimination. The period of the computation is to be from the date of discrimi-
nation to the date of the offer of reinstatement or reinstatement, whichever is earlier,
or placement on a preferential list, as the case may be.
In view of the fluctuating nature of Respondent's business and the effect thereof
upon the employment complement this factor is to be taken into consideration in the
backpay computation. Also, because there is evidence that Rackley, at least, was
attending school, such factor or related appropriate factors bearing on the discrimi-
natees' normal absence, if any, from the labor market, is to be taken into consider-
ation in computing backpay.
In summary, it is recommended, that Respondent make whole Rackley and Hamil-
ton for any losses they may have suffered because of the discrimination against them,
by payment to each a sum of money equal to the amount he normally would have
earned as wages from the date of the discrimination to the date of the offer of rein-
statement, or placement on a preferential list, as the case may be, less their respective
net earnings during said period The backpay is to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. By failing and refusing to rehire and reemploy Roy J. Rackley and John L.
Hamilton on or about June 20, 1960, as found in section III, hereinabove, Respondent,
has discriminated in regard to their hire, tenure, and conditions of employment,
thereby discouraging membership in a labor organization or in concerted activity,
and the exercise of rights guaranteed by the Act, and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of
the Act.
2. By interrogating employees concerning their union or protected activity on
June 2, 1960, Respondent has interfered with the rights of its employees within the
meaning of Section 8(a) (1) of the Act.
3. By conditioning the grant of a wage increase and other benefits to its employees
on May 18 or 19, 1960, upon their agreement to abandon their union activity, Re-
spondent has interefered with the rights of its employees within the meaning of
Section 8 (a)( I) of the Act.
4. Respondent has not engaged in unfair labor practices in those respects de-
scribed in section III, above, wherein a recommendation of dismissal of the par-
ticular complaint allegations has been made.
[Recommendations omitted from publication.]
Arts & Crafts Distributors , Inc. and Warehouse Employees
Union Local 730, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Case
No. 5-CA-1726. July 14, 1961
DECISION AND ORDER
On November 16, 1960, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that Respondent had not
engaged in certain other unfair labor practices as alleged in the com-
132 NLRB No. 14.