Florida Drum Co., Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 604 (N.L.R.B. 1974)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Drum Company, Inc. and Retail , Wholesale &
Department Store Union , AFL-CIO. Cases 15-
CA-4865, 15-CA-4949, 15-CA-5062, 15-
CA-5073, and 15-CA-5088
September 26, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On May 30, 1974, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and brief in support of the Administrative
Law Judge's Decision, and the Respondent filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Florida Drum Company,
Inc., Pensacola, Florida, its officers , agents, succes-
sors , and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR , Administrative Law Judge: Upon
charges duly filed, the General Counsel of the National
Labor Relations Board, by the Regional Director for Re-
gion 15 (New Orleans, Louisiana), issued a complaint in
Case 15-CA-4865 on July 10, 1973, against Florida Drum
Company, Inc., herein called the Respondent or the Com-
pany, alleging that it had engaged in certain unfair labor
practices violative of Section 8(a)(1) and (3) of the Act. On
September 7, 1973, an order consolidating cases and com-
plaints in Case 15-CA-11949 was issued by the Regional
Director alleging further violations of the Act.' As hereinaf-
1 The charge in Case 15-CA-4865 was filed on May 24, 1973. The charge
and amended charge in Case 15-CA-4949 were filed on August 10 and 24,
ter indicated, the consolidated, complaint was further
amended during the first day of the hearing. The Respon-
dent filed answers denying allegations of unlawful conduct
alleged in the consolidated complaints, as amended. Subse-
quent to the hearing of the aforesaid cases, the Regional
Director on December 14, 1973, issued a complaint in Cases
15-CA-5062, 15-CA-5073, and 15-CA-5088 alleging that
Respondent had committed additional unfair labor practic-
es in violation of Section 8(a)(1), (3), and (4) of the Act? On
January 30, 1974, 1 granted the General Counsel' s motion
to reopen the hearing and consolidate the latter complaint
with the complaints upon which hearing had been previous-
ly held. The Respondent filed an answer denying the allega-
tions in the December 14, 1973, complaint.
Pursuant to notice, a hearing was held before Administra-
tive Law Judge John P. von Rohr in Pensacola , Florida, on
October 16, 17, and 18 and November 27, 28, and 29, 1973,
and February 20 and 21, 1974. Briefs were received from the
General Counsel and the Respondent on April 3, 1974, and
they have been carefully considered. Upon the entire record
in this case and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation with its princi-
pal office and place of business located in Pensacola, Flori-
da, where it is engaged in the manufacture, sale, and
distribution of steel drum containers. Its facility in Pensaco-
la, Florida, is the only plant involved in this proceeding.
During the 12 months preceding the hearing herein, Re-
spondent sold and shipped products valued in excess of
$50,000 directly to points and places located outside the
State of Florida. During the same period it purchased and
received goods and materials valued in excess of $50,000,
which were shipped to its plants in Florida from points and
places located outside the State of Florida.
The Respondent concedes, and I find that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale & Department Store Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case are whether Respondent violated
Section 8(a)(1) and/or (3) of the Act by allegedly engaging
in the following acts and conduct: (1) decreasing or elimi-
nating the amount of overtime work to a group of 20 named
employees; (2) reducing the regular hours of work of the
1973, respectively.
2 The charges in these cases were filed on November 5 and 13 and Decem-
ber 7 and 10, 1973.
213 NLRB No. 95
FLORIDA DRUM COMPANY 605
aforesaid 20 employees; (3) changing the work schedule and
work assignment of Willie E. Bruner; (4) changing the work
schedule and work assignment of James E. Thurman; (5)
that Respondent violated Section 8(a)(3) and (4) of the Act
by discriminating with respect to the tenure of employment
of employees Willey Easley and Eddie Robinson and with
respect to the hours of employment of Don West; and (6)
that Respondent engaged in other conduct alleged to be
independently violative of Section 8(a)(l) of the Act.
B. Background
While there is no racial issue in this case , as a relevant
factual matter it is important to preliminarily note that the
participants in the organizational activities involved in this
dispute were, with but one or two exceptions, comprised of
Black employees. Further, the testimony reflects that at or
about the inception of the organizing campaign, noted be-
low, Respondent's production and maintenance employees
were approximately evenly divided, with 50 percent black
and 50 percent white.
About December 1972, Reverend Willie Bruner, an or-
dained minister but also an employee of Respondent, met
at his church with 18 other employees. This group decided
they wished union representation, following which, in late
January 1973,3 contact was made with a representative of
the Charging Union. There followed an organizational cam-
paign, with 27 employees eventually signing union authori-
zation cards.
The Union subsequently filed a representation petition
on February 5 for a unit of production, maintenance, and
shipping employees, a representation hearing was held on
February 28 and March 1, the Regional Director's Decision
and Direction of Election issued on April 6, and an election
was conducted on May 4. Of approximately 51 eligible vot-
ers, 23 voted for the Union and 21 against, with 7 challenged
ballots. On May 11 Respondent filed objections to the elec-
tion. The objections were subsequently overruled, but on
July 10 a revised tally of ballots, based on resolutions of the
challenged ballots, reflected a tie vote. The Union, there-
fore, was not certified as the bargaining agent . For conven-
ient reference to the Respondent principals involved in the
testimony, they are as follows: Donald Long, Sr., president;
William Neville, vice president and general manager; Wil-
liam Juarez, plant superintendent; Thomas Barrineau, oper-
ations manager ; Louis Gagnet, Jr., assistant plant manager;
Clifford Moseley, press shop foreman ; and John Sterling,
press shop supervisor.
C. Respondent Union Animus
As reflected in numerous conversations between
Respondent's supervisors and employees, all of which are
the subject of the succeeding section herein, there is consid-
erable evidence of Respondent union animus in this case.
Preliminarily, however, there are several incidents which,
although not alleged to be violative of the Act, are particu-
larly demonstrative of the extreme lengths that Respondent
3 Unless otherwise indicated , all dates hereinafter refer to the year 1973.
would go in order to combat the organizational activities of
its employees. I cite them here as relevant background,
insofar as they tend to bear upon Respondent's motives, to
the alleged unfair labor practices hereinafter discussed.
The first incident occurred on the last Saturday before the
election. On this date, Respondent transported a group of
production employees by airplane from its sister plant in
Charlotte, North Carolina, to its plant in Pensacola. At the
Pensacola plant, Respondent's Charlotte employees spent
the day turning out the production that normally would
have been performed by the Pensacola employees on the
following Monday. With respect to the purpose of this un-
usual and costly procedure, President Long first related that
during the union campaign he had discussions with some of
the employees wherein he told them "that should a strike
situation develop . . . at Florida Drum, that we were going
to continue to operate with or without them." Accordingly,
he said, it was for the purpose of demonstrating to the
employees that Respondent in fact could operate the plant
without them, that he resorted to the procedure discussed
above. Moreover, as he testified, all this was deliberately
kept secret from the Pensacola employees until they report-
ed on Monday. Long said, "The primary reason [for keeping
the matter secret] is that we would like to have had the
impact occur, the fact that the plant had been run when the
employees arrived Monday morning." He also testified, "It
was perfectly obvious what we were trying to do . . . I
certainly give them [the employees] credit for a little more
intelligence to walk in Monday morning and see Monday's
production run. Most of these employees are extremely ca-
pable people, and they know what's going on in the plant."
Concluding this incident, the Pensacola employees received
their full pay on the Monday in question, but spent their
time performing cleanup and maintenance work and prepa-
ration for the next day's run.
Employee Darrell Williams was hired about a month be-
fore the election. Williams, a college student, testified with-
out contradiction concerning his employment interview
with Operations Manager Thomas Barrineau at the time of
his hire. Concerning the relevant aspect of this converation,
Barrineau told Williams that the Company was having a
problem with the Union coming into the plant, that the
plant was not designed for unionized labor, and that the
Company did not want a union in the plant. He then asked
Williams how he felt about unions and how he would feel
about working under the circumstances mentioned. Wil-
liams replied that he did not have any pros or cons. Barri-
neau rejoined, "If you come to Florida Drum, just keep in
mind what the Company wants and what they don't want."
The forthcoming election was also mentioned. Concerning
this subject Williams testified (without objection ) as fol-i
lows:
... but I left that afternoon believing that I was to vote
no when the election came around. I can't remember
everything that was said in that interview that I went
through . . . He did not come out at any time and
directly say to vote no, but I left there believing that
when I left there I was going to vote no.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the interview Barrineau also told Williams that if
any of the employees asked him how he felt about the
Union, or if he went to school, he was to tell them that it
was none of their business; and further, that he was not to
tell anyone about their discussion.
Donald West, another college student, also testified
about an employment interview he had with Barrineau at
the time of his hire in March 1973, which was about 2
months prior to the election. West gave the following cred-
ited undenied testimony concerning this conversation.
Chris Lochas and I went in there, and he told me that
the job work was from 5:30 to 9:30 at the time, and I
would be starting off at $2.30 an hour, and then he
asked me, said, do you know anything about the union
and I said no, sir, I don't really. And he said, you don't
know one way or the other about it, and I said no, sir,
I don't. And he said we are looking for people that's not
for the union, and I said, yes sir, and he said you can
have the job if you vote NO . . . he just told me that I
would start Monday, went in on a Thursday, I think it
was, and I told him I would have to go to my work that
day and tell them about the job and stuff, and he said
the job wasn't permanent, they didn't know how long
it would be, and that I wasn't supposed to talk to any-
body about the union, or nothing, just go to work at
night, and start at 5:30 Monday. (Emphasis supplied.)
George Lochas, another college student, was interviewd by
Barrineau on the same day as West, although they were
interviewed separately. Lochas testified without contradic-
tion that during the interview Barrineau asked if he ever had
any dealings with the Union, and then went on to say, inter
alia, that they were having problems and that the Company
was "hoping that the fellows we hire now are going to keep
the Union out, that the Union trying to get in was predomi-
nently a black union," that it had caused "trouble" in other
places where it tried to get in, and that the Union "couldn't
change anything" because there wasn't much to change. He
added that "they were hoping that the people they were
hiring now would help vote the Union out."
D. Interference, Restraint, and Coercion
Six employees testified concerning conversations which
they had with Plant Superintendent William Juarez prior to
the election in which they were interrogated and/or threat-
ened concerning their union activities. Although Juarez
conceded that during this period he spoke to a number of
the employees, and that some of the conversations were
initiated by him, Juarez denied that he specifically used the
word "union" or that he was talking about the union activi-
ty which was then taking place. Rather, Juarez asserted that
he spoke to the employees in terms of "the big mess that was
going around," the "dissatisfaction among the employees,
the problems that were going around," the "tensions" in the
plant, and about the employees "going to outside sources to
represent them." Although one employee testified that Jua-
rez did broach him about "problems and dissatisfaction in
the plant," it was my distinct impression that Juarez was
being far less than forthright when he denied, as most of the
employees testified, that he spoke to them directly about the
Union and the union activity,4 or that it was not tacitly
understood between them that he was talking about the
Union. Juarez did not impress me as a credible witness and
I do not credit his unimpressive denials of portions of the
conversations (or in some instances entire conversations) as
testified to by the employees. Where the versions differ, I
credit the testimony of the employee witnesses, as set forth
below, over the versions given by him. In this connection,
not only have I considered that a distinct pattern of conduct
emerges with respect to Juarez' activities during the preelec-
tion period, but the employees who testified impressed me
as being generally truthful witnesses. I do not believe that
they fabricated their testimony concerning the conversa-
tions which they had with him. Accordingly, and based on
their credited testimony, I find the following to have oc-
curred with respect to Juarez.
1. About 2 weeks prior to the election, Juarez came up to
James Thurman to give him his paycheck. Thurman had
been an employee of Respondent for 19 years. At this time
Juarez told Thurman, "James you know you have been
working for the Company for a long time, you are an old
hand, you know if you fool around with the Union, you
know you are going to lose your insurance. At your age,
now, you won't be able to get no more insurance , to get any
good insurance." S
2. William Crenshaw, employed by Respondent for 20
years, was in the office cleaning his glasses about a month
before the election when Juarez began a conversation by
asking if he knew that he was supposed to have been fired
back in 1967. When Crenshaw asked what he meant , Juarez
replied that at that time President Long had told him to fire
him (Crenshaw) because he had gone down to testify
against the Company .6 Juarez went on to say that he was not
fired at that time because he was "too good a worker," but
at this point asked Crenshaw if he had signed a union card
during the present campaign. When Crenshaw replied,
One possible exception was Juarez' testimony to the effect that during a
conversation which he had with employee Willie McCarthy, the latter
brought up the fact that he and Juarez's father belonged to the Musicians
union. He said this subject was briefly discussed. He also testified that on
another occasion employee William Crenshaw made reference to a statement
by President Long that he would keep the plant operating even if a picket
line were established.
3 Additionally, Thurman testified that on a Friday before the election
Juarez told him that if he were Thurman he would not go to any more union
meetings ; and that if he did, he [Juarez] would learn about it. Testifying that
he did attend a union meeting on a Saturday, Thurman related that on the
following Monday Juarez came up and told him that he knew he [Thurman]
had gone to the union meeting on Saturday . On cross-examination,
Respondent 's counsel had Thurman's 11-page affidavit marked as Resp.
Exh. I. Counsel then asked Thurman if he told the Board agent that "no
supervisor said anything to me about going to union meeting." Thurman
responded that he did not recall. Counsel then asked Thurman if, after taking
the statement, he recalled the Board agent "reading to you what I have just
said ." Thurman again said that he did not recall, but testified that he did tell
the Board agent about the incident related above. Although counsel may
have quoted correctly from the statement, Thurman' s I1-page statement was
never offered or received in evidence . Neither was the aforesaid purported
statement quoted in its entire context, nor does it appear that the statement
was shown to the witness . Nevertheless , and although from my observation
Thurman appeared to be telling the truth, under the circumstances I shall not
find any violation with respect to this incident.
6 This involved Crenshaw's testifying at a representation hearing involving
Respondent in 1967.
FLORIDA DRUM COMPANY 607
"that's for me to know," Juarez rejoined that he "felt like"
he had signed a card. Juarez thereupon told Crenshaw that
he should not make the same "mistake," because he (Juarez)
had the power to fire him.
3. On a Friday about a week prior to the election, Juarez
told Charlie Johnson, Jr., a Respondent employee for 12
years, that he heard that Johnson was going to a union
meeting . He then told Johnson that he would not go if he
were Johnson, that Johnson should "just stay away from the
Union." He added that he would "find out" if Johnson went
to a union meeting . Johnson nevertheless attended a union
meeting over the weekend. The following Monday Juarez
came over to this employee and stated that he had heard
that he (Johnson) had attended on Saturday night.
4. Prior to the election, John Barnett , an employee for
over 20 years, went to the office to obtain a glove. While
there he encountered Juarez, who at this time took the occa-
sion to ask him what he thought about the Union. Barnett
replied that he had never been in a union and that there was
nothing to think about.
5. Willie McCarthy, Jr., employed by the Company for
over 14 years, was engaged in a conversation by Juarez
during working hours about 2 or 3 weeks before the election.
Juarez first asked who was responsible for getting him into
the maintenance department. McCarthy replied that he
(Juarez) did and that he appreciated it. After some discus-
sion as to how he liked his job, Juarez asked "what did the
guys think about the union?" McCarthy responded that the
employees had complaints about certain working condi-
tions and stated that everyone wanted a raise . Juarez replied
that he had talked to higher officials about the matter but
that he had not received an answer.
6. Joe Wiggins, Jr., employed by the Company for 16
years, encountered Juarez in the office some time in April.
Juarez began by asking Wiggins "what the problems were
out there" and "what the fellows were dissatisfied about."
Wiggins responded that the men wanted more money, job
security, and better insurance, whereupon Juarez stated that
if he had any problems he should come to him and that "he
would go the limit" for Wiggins. Later in the discussion
Juarez told Wiggins that "the union can't do a bit more than
the Company."
By reason of all the foregoing, I find that Respondent
violated Section 8(a)(1) of the Act by Juarez' conduct in
interrogating employees with respect to their union activi-
ties and sympathies, his threat to Thurman about Thurman
losing his insurance if he fooled around with the Union, his
implied threat to Crenshaw that he still could be fired for
engaging in union activity, and his statement to Johnson
that he had heard that Johnson had attended a union meet-
ing. By the latter statement, I find that Respondent further
violated Section 8(a)(1) by creating the impression that the
employee's union activities were being kept under surveil-
lance.
Clifford Diamond was employed in Respondent's press
shop for approximately 10 years. Diamond, who was one of
the one or two white union adherents, signed a union card
in January 1973 and thereafter attended several union meet-
ings . Diamond quit Respondent's employ in April 1973 be-
cause , as he asserted, he was being given too much overtime
and because he felt that his superiors were "riding" him.
Diamond, whose testimony I believe,' testified without con-
tradiction that on a Saturday morning in latter February,
Clifford Moseley, the press shop supervisor, came up to him
and asked what he thought about the Union. Responding
that he was "half and half for the Union," they then dis-
cussed the pros and cons of unions. At one point during the
discussion Moseley asked "how many guys were for the
Union," to which Diamond responded that he did not
know. Diamond testified further that during the last 2 or 3
days of his employment Moseley kept "riding" him and that
during one or more of the conversations which ensued dur-
ing this period Moseley again asked if he was for the Union.
I find that Respondent violated Section 8(a)(l) of the Act
by Moseley's interrogation of this employee concerning his
union sympathies and the union sympathies and activities
of other employees .8
Employee Wiggins testified that sometime in April he and
Louis Gagnet, Jr., the assistant plant manager , were wash-
ing their hands in the washroom when Gagnet remarked
that "the plant sure was in a mess ." Wiggins said that he
agreed, whereupon Gagnet asked how he felt about the
Union. Continuing, Wiggins said he responded that he did
not know, but asked Gagnet how he felt. Gagnet thereupon
proceeded to relate how a friend of his, once for a union,
had an experience which caused him to turn against unions.
Gagnet recalled having a conversation in the washroom
with Wiggins. Gagnet said that he began the conversation
by stating that he "would be glad when all this mess is over,"
but denied asking Wiggins how he felt about the Union? I
credit Wiggins' testimony that Gagnet did ask Wiggins how
he felt about the Union and find that by this interrogation
(see fn . 8, supra) Respondent violated Section 8(a)(1) of the
Act.
Employee Joe Wiggins also testified concerning a conver-
sation he had with Vice President William Neville during
the campaign when he encountered him in the paint areal
According to Wiggins, after a preliminary chat the follow-
ing took place: Neville asked, "What' s this going on about
the Union?" Wiggins answered that he did not know. Ne-
ville then related how he had hired him 16 years ago and
asked how many children he had. Wiggins said, "Five."
Neville then asked what the fellows were dissatisfied about.
r Mrs. Diamond, also called as a witness , testified, inter alia, concerning
conversations she had with Respondent supervisors concerning an attempt
by her husband to return to work for the Company after he quit. While I do
not deem it necessarily relevant to set forth this testimony, I do note that
Respondent in its brief rather sharply attacks the credibility of Mr. and Mrs.
Diamond. I reject Respondent 's contention to this effect . From my observa-
tion of these individuals, it was my distinct impression that they were forth-
ri&ht and truthful witnesses.
In finding that Respondent's interrogation of Diamond and other em-
ployees to be violative of Sec. S(a)(l) of the Act, I have considered that these
incidents were not isolated, and further, that they occurred in the context of
Respondent's demonstrated union animus and in conjunction with the unfair
labor practices herein found.
9 Gagnet testified also that Wiggins told him that although everybody
seemed to be under the impression that mostly blacks had started the Union,
the Union actually was started by a white person in the plant . He further
testified that during the conversation he advised Wiggins to see a lawyer or
a third party that could give "true answers" about unions.
10 Wiggins thought this conversation took place in April. Neville placed it
as having occurred about 2-1/2 weeks after the petition had been filed in
February.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wiggins mentioned an item or two. Neville asked why he
did not tell him about the problems, to which Wiggins re-
sponded that he did not think it would do any good. The
discussion then turned to additional employee complaints,
Wiggins stating that the men wanted more money. Neville
responded with the statement that it would be against the
law to give the men a raise "now" because of the Union
coming in. He went on to relate some problems a relative
had with a union, and then stated, "I would give this serious
thought if I was you, before I do something wrong, because
I do not want to see all of my investment . . . go down the
drain and neither do you." Neville then asked Wiggins how
his brother, Bruno Wiggins, felt about the Union. Wiggins
said he did not know. The conversation concluded with
Neville stating, "You fellows [ought] to think about it seri-
ously before you do something you'll regret the rest of your
life." Neville conceded a substantial part of the conversa-
tion as thus testified to by Wiggins, but stated that he just
asked "what were some of the problems that brought the
Union petition in." He also said that he did not recall ask-
ing Wiggins about his brother Bruno. I credit the testimony
of Wiggins as above set forth and find that Respondent
violated Section 8(a)(1) of the Act by Neville's interroga-
tion of this employee concerning the union activity that
was taking place, as well as questioning him about the
union sympathies of his brother.
Employee McCarthy, Crenshaw, and Thurman testified
concerning a meeting where Long and Neville addressed a
group of employees prior to the election. During the meet-
ing the company officials compared various company bene-
fits with those contained in collective-bargaining
agreements of other companies. McCarthy testified, "Mr.
Neville had some papers concerning other plants that were,
had trouble with the Unions, and that closed down because
of union affairs. I don't know which one or what." Cren-
shaw at one point testified that during the meeting Neville
stated that he would close the plant, but on cross- examina-
tion conceded that Neville might have said he would close
the plant if there were a strike. To the extent that the com-
plaint alleges Respondent to have unlawfully threatened
employees on this occasion, I recommend that the allega-
tion be dismissed.
Clarence Diamond testified that in about latter February
his supervisor, Clarence Moseley, told him that he was
wanted in Long's office. He went to the office and was there
engaged in a conversation by President Long and Opera-
tions Manager Thomas Barrineau whom, he said, was also
present. According to Diamond, Long at this time told him
that he was "the money man," that he hoped that he (Dia-
mond) would make the right decision, and that if the plant
went union he would close the gates. Diamond said he
responded that he would make the right decision. Diamond
testified further that at one point Barrineau spoke up to say
that if the Company went umon, they would probably ship
out the machines to the Charlotte plant. Turning to Long's
testimony, Long said he recalled having a conversation with
Diamond, but that this took place when he happened to
enter Neville's office, at which time Diamond was there
talking with Neville. Barrineau, he said, was not present.
According to Long, he took the occasion to refer to talks he
had made to the employees 11 and then to ask Diamond,
since he was one of the older employees, if he had any
particular problems. He said there ensued a brief discussion
about various company benefits, but that Diamond was not
responsive and that he thereupon left the office. Long de-
rued stating that he was the money man and that he hoped
Diamond would make the right decision. He also denied
making any threat to close the plant if it went union. Vice
President Neville testified that about 2 weeks before Good
Friday he was discussing a work-related problem with Dia-
mond in the press department, whereupon Diamond sud-
denly stated, "Well, you know Mr. Neville, I won't have
anything to do with this union." Neville said he told Dia-
mond that he would not discuss "anything like this" on the
floor, but that he then invited him into his office. Neville
testified that once in his office Diamond repeated the state-
ment, whereupon he asked "what he was going to do about
it" and if he would help the Company "fight it." Diamond,
he said, replied that he would have nothing to do with it, at
which point Long entered the office. Neville (who denied
that Long threatened to close the plant) testified that Long
then spoke to Diamond as follows:
Well, Mr. Long asked him how he felt and said, well
you know Bruner,12 we don't want a union out here and
Diamond said that's right. And Mr. Long said, well,
you know, we are going to have campaigns and
speeches so we don't have a union, and Ernest kept
saying that's right... .
Concerning all the foregoing, and whether or not Long
and Neville had reference to the same occasion testified to
by Diamond, I credit the testimony of Diamond as set forth
above. As I have previously indicated, Diamond impressed
me as an honest witness. Moreover, I regard it as of no little
significance that Barrineau, whom Diamond testified was
present on this occasion and joined in the conversation, was
not produced as a witness to deny the testimony as it re-
ferred to him. Noteworthy also is the fact that although
Long and Neville both testified concerning the same inci-
dent, there is a distinct variance in their respective testimo-
ny concerning what Long had to say to Diamond during the
conversation. In sum, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by Long's statement to Diamond that
he would close the gates if the Union came in, and by
Barrineau's statement to this employee that they would
probably ship the machinery to the Charlotte plant if the
Company went union..
E. The Discrimination Against Willie E. Bruner and
James E. Thurman by Assigning Them to the
Night Shift and to More Onerous Work
Preliminarily , it will be recalled that Reverend Willie
Bruner was initially responsible for the union campaign
among Respondent's employees and the record leaves no
doubt that he was the leading union adherent. He also ap-
peared as the principal union witness at the representation
11 It is undisputed that Long gave several, preelection talks to the employ-
ees in which he voiced opposition to the Union
12 The reference in Neville's testimony heie obviously related to Diamond,
not Bruner.
FLORIDA DRUM COMPANY
hearing which was held on February 28 and March 1. How-
ever, while company knowledge of Bruner's status as the
union leader was readily conceded by President Long (as it
also was in Respondent's brief), as further background to
Bruner's case it is particularly relevant to note here that
Bruner was singled out for attack by Respondent's presi-
dent during a speech which Long made to the employees
about a week or two before the election. Thus, as related by
a number of employee witnesses and as largely conceded by
Long, during this speech Long alluded to the fact that em-
ployee Clarence Diamond had quit the Company and that
subsequently his daughter had been severely injured in a
motorcycle accident. Pointing to Bruner, Long at this point
proceeded to accuse him of having pressured Diamond into
quitting and then stated that "in his sight Reverend Willie
Bruner being a preacher, to him was a plain hypocrite." 13
He further stated, according to the undenied and credited
testimony of employee Bradley that "the leader we got out
there was supposed to be a preacher, referring to Reverend
Bruner . . . was leading us in the wrong, leading the men
in the wrong direction." Long did not deny the latter state-
ment 14 and conceded calling Bruner a hypocrite during the
speech. Citing as a reason for so speaking, Long asserted
that Diamond quit because he was "under pressure by the
Union" and that somehow Bruner was responsible for this.
However, not only did Long fail to give any basis for this
asserted belief, but Diamond, as previously noted, gave
other reasons for quitting and further specifically testified
that the Union gave him "no trouble whatsoever." Perhaps
more revealing of Long's censure of Bruner during his
speech was his following testimony on direct examination.
Q. Why did you select Mr. Bruner as the object of
your statements?
A. Reverend Bruner was the leader of the group
apparently. This was quite open, and at the previous
hearing, Reverend Bruner was there as the chief leader
of the union.
Although I regard all of the foregoing as relevant back-
ground to the alleged discrimination against Bruner, I do
not find the name calling by Long (i.e., calling Bruner a
hypocrite) to violate Section 8 (a)(1) of the Act. 5
Turning to James Thurman , the record reveals that not
only was this employee active in the 1973 campaign, but he
also was active in a previous organizational campaign which
took place in about 1967. As previously related , about 2
weeks prior to the 1973 election Juarez warned Thurman
that he might lose his insurance if he fooled around with the
Union . Moreover, that Respondent still regarded Thurman
13 The quoted testimony is that of Fred Bradley, which was substantially
the same as that of other witnesses.
U Indeed, employee Joe Wiggins testified without contradiction that about
a week or so earlier he was present in a group of six employees when Long
at this time told them, inter ahc, that "Reverend Bruner was leading us in
the wrong direction." '
15 The Board has frequently held that name calling and derogatory re-
marks, which are not of a threatening nature, are not per se violative of the
Act
609
as one of the union protaganists in 1973 is reflected in a
remark made to him by President Long, also about 2 weeks
prior to the 1973 election. Thus, according to the undenied
and credited testimony of Thurman, during a discussion
which Long and Neville at this time had with a group of 10
or 12 employees, Long at one point turned to him and stated
that he "should know better" because he and the other
employees had "tried this thing once before and it wouldn't
work."
Due to job-sustained injuries, both Bruner and Thurman
had been placed on lighter work and had performed in this
capacity for a long period of time prior to the job changes
here at issue, Thus, in March 1972, Bruner suffered the loss
of portions of two fingers while engaged in a combination
winder-grinder operation. This caused him to be off from
March through June 1972, following which he returned for
an operation at this time remained away from work until
December 1972. Due to his injury, Bruner presented the
Company with a note from his doctor stating that he should
be put on lighter work. The Company complied and first
putting him on cleanup work, following which he was as-
signed to other light jobs; namely, that of changing plugs,
and later, operating the phosphatizing machine. As to Thur-
man, this employee worked on a variety of different jobs for
Respondent in the 19 years of his employment including the
operation of various machinery and working as a truckdn-
ver. About the spring of 1972, Thurman injured his back
while at work loading a truck. Dr. James Willis, a chiroprac-
tor to whom Thurman went for treatment, thereupon gave
Thurman a note, which Thurman presented to the Compa-
ny, stating that he was not to engage in any heavy-type
loading work. He was thereupon assigned to the work of
tightening and spraying plugs.
On or about May 21, 1973, Respondent instituted a sec-
ond shift, also known as the late shift, the hours of which
were 1 p.m. to 9:30 p.m.16 It is undisputed that Bruner and
Thurman were transferred from the first to the second shift
and at this time were assigned to the work of drum load-
ing." The complaint alleges that by this conduct Respon-
dent violated Section 8(a)(1) and (3) of the Act. While the
cases of the two employees are similar, they are not identi-
cal. I turn first to the case of Bruner.
• Just prior to his transfer to the night shift, Bruner was still
engaged in the operation of the phosphatizing machine,
which involved the working and phosphatizing of steel
sheets. This operation, as Juarez conceded (R. 589), did not
involve heavy physical type work. The work of loading
drums on trucks, however, (and this assignment at times
also included the stocking of drums in the warehouse) in-
volved the physical lifting of steel drums weighing 30 or 40
pounds or more. Not only did the job of drum loading ,
involve far heavier physical work than did the phosphatiz-
ing operation, but the record leaves no doubt that this job
was the most physically demanding work in the plant. Brun-
er was adversely affected by his change in jobs and shifts
in two ways. First, not only is drum loading considerably
16 The hours of the first shift were from 7 a m to 3.30 p in.
17 Although the record at times reflects that the transfer of these employees
to the second shift occurred on May 2 or 4, it is undisputed that the second
shift was inaugurated on May 21 and that Bruner and Thurman were trans-
ferred to the second shift on or about this date
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more strenuous work than that to which he was previously
assigned, but as he credibly testified, the drum loading work
also causes him physical pain due to the sensitivity of his
job-incurred injured fingers. Secondly, as pastor of a con-
gregation numbering 325 persons , Bruner testified that on
evenings he engaged in various church activities. While he
was able to perform his clerical work when employed on the
day shift, this opportunity was taken away from him upon
being transferred to the second shift. Indeed, Bruner credi-
bly testified that he protested this fact to Juarez when he
was first advised of the change, but to no avail. Concerning
the reason for changing Bruner's shift and job duties on
May 21, Juarez declared that this was because Bruner was
an experienced drum loader and that they needed "better
men on the night shift for drum loading, because of the
minimal amount of supervision we had on the night shift."
Upon the entire record, I reject this asserted reason as being
incredible. Thus, with respect to the job of drum loading,
under cross-examination Assistant Plant Manager Gagnet
conceded that this job could be learned in a day, stating
also, with respect to the complexity of it, that "there's not
much to it." Moreover, Gagnet further testified that the job
of drum loading frequently is given to new employees as
their first job assignment when they are hired. With further
reference to the reason given by Juarez, it is also significant
that Thurman, whose case I discuss next, was also transfer-
red to the night shift, as a drum loader on May 21. In short,
I find it impossible to believe that under normal circum-
stances Respondent would take two of its most experienced
and most senior employees and assign them to the simple
but more arduous work of drum loading, while at the same
time drastically changing the work hours to which they had
been so long accustomed.18 Lending further emphasis to
Bruner's case is the fact that this action was taken notwith-
standing that this employee was still handicapped by two
job-sustained mutilated fingers and also notwithstanding
that he protested that the change in hours would interfere
with his church activities, which his regular hours had so
long permitted. On the basis of the foregoing and on the
entire record, I think it clear, and I find, that Respondent's
action in changing Bruner's job and his hours of work on
May 21 was motivated by its demonstrated hostility to the
union activity and to the leading role therein played by this
employee in particular. I find that by engaging in such
retaliatory conduct Respondent violated Section 8(a)(1) and
(3) of the Act.
Thurman's case is substantially the same as that of
Bruner's, except that Thurman was transferred to the job of
drum loading in about March or April 1973, which was well
into the period of the union campaign which had begun
about the first of the year. Again, the record is clear that the
drum loading work was much more arduous than the work
of tightening the spraying plugs which was Thurman's work
just prior to the aforenoted change in assignments. Juarez
testified that Thurman was transferred to this job because
a 60-day probationary employer who had been hired as a
drum loader was terminated. Juarez added that Thurman
had previously performed drum loading work, and that he
"didn't have another experienced drum loader." While it
seems strange that Juarez would so suddenly need an expe-
rienced drum loader when the employee who just quit the
job had been hired but 60 days earlier, there is still further
reason to question Respondent's motives in its reassignment
of Thurman. Thus, Vice President Neville testified thatin
about January or February he became interested in ascer-
taining if Thurman could be released from the lighter duties
to which he had been assigned. Accordingly, he said, upon
obtaining the name of Thurman's chiropractor from Juarez,
he telephoned him and asked if Thurman could return to his
duties. The doctor, he testified, informed him "that as far
as he was concerned he was released." Dr. James Willis, the
chiropractor who treated Thurman for his back injury, was
called by the General Counsel as a rebuttal witness. Dr.
Willis testified that he had "absolutely no recollection of
any phone calls in regard to Mr. Thurman" and further that
he positively would have recalled any such phone calls had
he received one.19 Not only was Dr. Willis a neutral witness,
but from my observation he appeared to be a highly reliable
one. I credit his testimony and find that he was not, contrary
to the testimony of Neville, contacted by Neville or anyone
else from the Company with respect to Thurman. Accord-
ingly, I do not credit the reasons given by Respondent wit-
nesses for transferring Thurman to the drum loading job in
February or March. Rather, recalling that Thurman was a
known leader in the 1967 campaign and that Respondent,
as discussed above, advised him that he "should know bet-
ter" than to continue in such activities during the 1973
campaign, and also in the light of Respondent's union ani-
mus, I am persuaded and find that Respondent's conduct
in assigning Thurman to the more arduous work of drum
loading at this time was motivated by antiunion consider-
ations. I also find, and for essentially the same reasons I
have stated with respect to Bruner, that Thurman's transfer
to the second shift on May 21 was likewise discriminatorily
motivated. In both instances, I find that Respondent acted
in violation of Section 8(a)(1) and (3) of the Act.
F. Respondent's Discriminatory Decrease or Elimination of
Overtime Work to the Union Adherents
The complaint alleges that on or about May 20, 1973, and
continuing to date, Respondent discriminatorily decreased
and/or eliminated the amount of overtime work available
to the following employees: John Lee Barnett, Fred T.
Bradley, Willie E. Bruner , William H. Crenshaw, Walter J.
Davis, Willie E. Easley, Charles Johnson, Willie Kyzer, Wil-
lie McCarthy, Jr., John Arthur McCastle, Nathaniel Mc-
Corvey, Ira Miller, Eddie Lee Robinson, James Robinson,
Edward Lee Smart , Claude Smith, Clement W. Smith,
James E. Thurman, Brunner Wiggins, and Joe Wiggins, Jr.
As have been previously noted, the employees involved in
the 1973 union campaign at Respondent's plant were almost
exclusively black employees. Of the above-named employ-
ees, only one is white. The record further reflects that not
only were all of these employees active union adherents, as
18 Although both employees were transferred to the second shift on May 19 Thus , Dr. Willis testified , "Any call I would have recalled it because I
21, Thurman, as will be noted , had been reassigned to drum loading several remember the gentlemen quite well , and I don't have calls very frequently
months earlier . from employers and it certainly would have stuck in my mind... .
FLORIDA DRUM COMPANY
evidenced by their signing union cards, attending union
meetings , and generally supporting the Union, but also that
as a group they constituted Respondent's older employees
with the most plant seniority. In addition, the evidence also
establishes that Respondent was well aware that the union
campaign was essentially being conducted among , and sup-
ported by, the black employees. Thus, it will be recalled that
George Lochas, while being interviewed for a job during the
preelection period, was told by Operation Manager Barri-
neau , inter alia, that the union organizing at Respondent's
plant was predominently a black union; and in a preelection
speech President Long told the employees that Reverend
Bruner (a black) was leading the employees in the wrong
direction. On another occasion Long told a group of em-
ployees that he hoped the Company would win and he
believed that they would because a majority of the whites
would vote against the Union, although he believed that
some of the blacks would also 20 On either this or another
occasion prior to the election, Long also told a group of
employees that 51 employees would be voting and that "he
had 21 black and 5 or 6 of those were going to vote against
the Union and the Company would win by a majority." 21
If anything more need be said with respect to Respondent's
knowledge that it was the black employees who were res-
ponsible for the union campaign, it is also noteworthy that
it was this class of employees who were largely the targets
of Respondent's 8(a)(1) activity and further, that members
of this group appeared as witnesses at the representation
hearing.
Turning to the merits of the allegation under discussion,
the record is undisputably clear, as indeed Respondent
readily concedes, that (1) prior to the election the discrimi-
natees, as well as some of the other older employees, had
always received substantial amounts of overtime work; and
that (2) subsequent to on or about May 21, 1973, these
employees , except for rare or isolated occasions , no longer
were assigned any overtime. With these facts in mind, it is
at this point important to note an additional undisputed
factual situation, and particularly the General Counsel's
stated position with respect thereto. The situation to which
I refer is simply that on May 21, 1973, the Respondent for
the first time added a second shift at its plant, that this
required the hiring of a substantial number of new employ-
ees, and that as a direct result thereof, a substantial amount
of overtime work previously assigned to the older employees
was now performed by the second shift and hence was no
longer available to them as overtime. When this became
clear to me during the hearing, I pointed out to the parties,
and in particular to the General Counsel, that the complaint
did not allege the second shift to have been discriminatorily
instituted. This became the topic of discussion at several
points during the hearing. At one point, earlier in the hear-
ing and in response to my questioning, the General Counsel
stated that he did not intend to amend the complaint to this
effect, but that the institution of the second shift did consti-
tute some evidence in support of the allegation that the
overtime was eliminated as to the discriminatees.22 After the
20 Undenied testimony of employee Walter Davis.
21 Unrefuted testimony of employee Edward Smart.
22 R. 146-150.
611
first 3 days of hearing, the hearing was adjourned for 5
weeks in order to grant the Respondent opportunity to meet
a substantial new allegation to the complaint which the
General Counsel added at the first day of the hearing. At
the conclusion of the third day, I specifically cautioned the
General Counsel to review his case and to take the occasion
of the recess period to comply with the Board's Rules and
Regulations with respect to any possible further amend-
ments to the complaint . Shortly after resumption of the
fourth day, I had the following colloquy with the General
Counsel's representative:23
JUDGE VON ROHR:... do I still understand that the
General Counsel does not contend that the institution
of a second shift approximately a week or so after the
election was discriminatorily motivated?
MR. SHEAHAN: I wish I could say we had a different
position but if that were our position we would be here
weeks , to show each and every one of the employees
were discriminatorily hired . That's the only way we
could approach it and we don ' t have that information.
JUDGE VON ROHR: It seems to me in your case you
should have some theory as to the remedy you are
seeking in this case, because it seems clear , at least one
of the reasons these employees received less overtime
was because of the institution of a second shift. Now,
as a practical matter, it would seem to me that unless
you contend the Respondent should restore the status
quo at the time of the election, which would include the
elimination of the second shift, how are these people
going to get overtime at this point to the same extent
they did prior to the election.
MR. SHEAHAN: I wish there was some way we could
plug this in our formula , and it just doesn 't work unless
as we say we allege the second shift was discriminatorily
put on. That's not the position of the Region. I am sorry
I can 't change it. I talked to everybody at the Region
about it. (Emphasis supplied.)
With this clear understanding that the General Counsel
did not allege or contend that the elimination or reduction
of overtime, or at least a substantial part thereof, was due
to the institution of a discriminatorily motivated second
shift, I was indeed, surprised to note that in his brief the
General Counsel reversed himself entirely and now con-
tends that which he disavowed at the hearing, namely, that
the elimination of overtime , at least in substantial part, was
caused by a discriminatorily motivated institution of a sec-
23 R. 531, 533.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and shift.24 I reject this contention for the reasons that this
issue was not encompassed by the complaint, that any such
contention was disavowed by the General Counsel during
the hearing, and that the matter was not litigated at the
hearing-" As the court stated in N.L.R.B. v. Tennsco Corpo-
ration: 26
It is well established, specifically by the statute, by the
case law, and by the principle of fundamental fairness
that one cannot be found guilty of an offense not en-
compassed by the complaint or of which he had no fair
notice.
The court further stated:
The Board says that Tennsco could and should have
gleaned from the testimony as it went into the record
that Sullivan and Greer were the specific targets of the
mass allegation in respect to the 66 alleged discrimina-
tees . But it seems to us if that were so the General
Counsel should have said so when he was questioned
by the Examiner and by counsel for Tennsco. It seems
to us that the statement by the General Counsel at the
end of the hearing negatived any necessity for Tennsco
to fathom the purport of the testimony. This was not
an investigation or a rulemaking. This was an adjudica-
tory proceeding, where a company was charged with a
violation of law and the statute required a formal com-
plaint, a hearing , and a decision with findings on an
open record. The defendant repeatedly asked for clari-
fication of the issue it faced; the hearing officer was
perplexed about it; and the responses of the prosecutor
tended to indicate that the offense he had in mind was
not the one ultimately found but was another different
one. We think Tennsco, under the circumstances re-
vealed by this record, was entitled to a clear statement
of the Government's theory of the case, and the of-
fense, if any, ultimately found must have been within
the fair bounds of that statement.
In sum, and for reasons stated above, I find that to the
extent that overtime previously alloted to the discriminatees
was reduced or eliminated as a result of the inauguration of
the second shift, Respondent did not violate the Act.27
24 This is the plain meaning of the following assertion in his brief:
"the installation of the second shift at this time and the new policy
regarding the allocation of overtime was motivated at least in part .. .
to reward the recently hired employees . . . and as a form of punishment
to the older black employees for seeking union representation."
25 Although Respondent did offer some testimony as to its reason for
adding the second shift, on this record I cannot conclude that , but for the
General Counsel 's representation that this matter was not at issue , Respon-
dent would not have litigated the matter in considerable more detail . Indeed,
in its brief Respondent indicated its reliance upon the General Counsel's
representation by specifically stating "The General Counsel repeatedly stat-
ed that it did not contend that the inauguration of the second shift was other
than economically motivated."
26 339 F.2d 396 (C.A. 6, 1964); see also Shreveport Garment Manufacturers,
133 NLRB 117.
27 To put it another way , it may be reasoned as follows: Since the inaugura-
tion of the second shift was not alleged or contended to be unlawful , it must
There remains for consideration, however, a further as-
pect of the allegation in question. Thus, it is undisputed that
while the addition of the second shift eliminated much of
the overtime available for distribution, the fact is that even
after the inauguration of the second shift there still re-
mained a substantial amount of overtime work to be per-
formed. It is also undisputed that, except in rare instances
and in de minimus amounts, all such overtime was assigned
to the newly hired employees (who were hired before and
after the election). In this respect, the record leaves no doubt
but that Respondent adopted an entirely new policy just
after the election. Indeed, Plant Superintendent Juarez ac-
knowledged this change and testified that at about the time
of the inauguration of the second shift, he received instruc-
tions from Vice President Neville to assign all available
overtime to the lowest paid; i.e., newly hired employees.28
In this regard, it has been previously noted that the discrimi-
natees consistently received substantial amounts of over-
time prior to the election. I do not deem it necessary to
analyze and detail Respondent's records which are in evi-
dence and cover the years 1972 and 1973. For the purpose
of this discussion it is sufficient to note that the amount of
overtime received by the discriminatees (and other older
employees) during the approximate 1-1/2 years prior to the
election, on occasion reached as high as over 20 hours per
week and quite consistently ranged from 7 to 15 hours per
week. Significantly, however, Respondent's records reveal
that during this same period, the newly hired employees also
received substantially the same amounts of overtime as did
their senior counterparts.
In defending its admitted change of policy shortly after
the election (i.e., the policy of assigning relatively all over-
time to the newly hired employees, whereas prior thereto the
overtime had been distributed equally between the older
and newer employees), Respondent asserts that this was
done as a cost-saving device. This at least in part begs the
issue, since I think it can be fairly assumed than an employ-
er is always interested in cutting cost. Yet, prior to the
organizing campaign, Respondent, and the cost notwith-
standing, was willing to give the older employees their share
of the available overtime. Upon the entire record, and par-
ticularly in view of Respondent's demonstrated animosity
toward the unionization of its employees, I am persuaded
and find that Respondent's elimination of overtime after the
election to the discriminatees named above, to the extent
heretofore indicated, was at least in substantial part timed
and intended to penalize them for engaging in union activi-
ties . This conclusion, I should add, is butressed by a further
incident not yet discussed. Thus, on about July 16, 1973,
employees James Robinson and Willie Kyzer were ap-
proaching the timeclock to punch out at the end of their
shift (3:30 p.m.) when they happened to overhear part of a
conversation between Press Shop Supervisor Clifford Mose-
ley and Darrell Williams, one of the newer employees who
be concluded that this act was lawfully motivated . Accordingly , any changes
in overtime resulting from this lawful act must likewise be regarded as lawful.
28 Curiously, this testimony of Juarez was to all effects contradicted by
Neville , who testified that it had always been company policy at least for the
last 5 years, to assign overtime to the lower -paid employees. As indicated in
this discussion , and as Respondent's records disclose , this clearly was not the
case.
FLORIDA DRUM COMPANY 613
had been hired on March 16, 1973. Williams, who along
with other newer employees had been working considerable
overtime, was complaining to Moseley about the fact that
once again he had to stay on and work overtime. Observing
that Robinson and Kyzer were about to punch out, Wil-
liams asked Moseley why they (Robinson and Kyzer) were
getting off while he was required to remain and work over-
time . Moseley's response to this query simply was "those
guys signed union cards." 29
Finally, Respondent contends that the elimination of
overtime to the discriminatees after the election cannot be
found to be discriminatory because some nonunion senior
employees also were in the group who were denied overtime
in the post-election period . However, the evidence is indis-
putably clear that the group of discriminatees to whom
overtime was denied far outnumbered the few individuals
who were accorded the same treatment . Thus, taking de-
partment by department, Respondent's records show that
the ratio of discriminatees as against nondiscriminatees in
this group was as follows , with the number of discriminatees
appearing first : welding department : 3-1; seaming depart-
ment: 4-1; paint department: 4-0; loading department:
3-1; lacquer department: 3-0; maintenance department:
1-1.30 Moreover , Respondent's argument does not even
hold true in the shearing department, which after the elec-
tion employed one discriminatee (Claude Smith) and one
senior nondiscriminatee (Jimmie Mendias). Indeed,
Respondent's records show that whereas Smith received a
total of only 2-3/4 hours of overtime in a 5-month period
after May 21, during the same period Mendias received a
total of approximately 150 hours of overtime . In any event,
the fact that some other employees were accorded the same
treatment as the discriminatees does not mitigate against a
finding of discrimination. N.L.R.B. v. W. C. Nabors, d/b/a
W. C. Nabors Company, 196 F.2d 272,275-276 (C.A.5), cert.
denied 344 U.S. 865; N.L.R.B, v. Ambox, Inc., 357 F.2d 138,
142-143 (C.A. 5, 1966) 31
I find that, during the period and to the extent indicated,
Respondent discriminated with respect to the assignment of
overtime to the employees heretofore named in violation of
Section 8(a)(l) and (3) of the Act.
29 The above incident is set forth in accordance with the substantially
corroborative and undenied testimony of Robinson , Kyzer, and Williams.
Although Williams identified another black employee (Walter Davis) as
being present at this time , Robinson and Kyzer testified that it was they to
whom Moseley referred . Whatever Williams' mistake in this regard, I am
satisfied and find that the incident occurred in substantially the manner as
related above.
30 With respect to the remaining departments, the following special cir-
cumstances are noted : The receiving department usually employed only one
person at a time and none of them were in the group of discriminatees. These
individuals continued to work overtime before and after the election. With
respect to thepress department, only two senior employees were involved, i.e.,
Walter Davis , a discriminatee, and Carl Smith , a nondiscriminatee . However,
no overtime was granted either of these employees . Further, Smith was
terminated on July 2, 1973, leaving only Davis as a senior employee in this
department . The newer employees in the press department , however, contin-
ued to receive substantial amounts of overtime after the election.
31 " ... it rests upon the tortfeaser to disentangle the consequences for
which it was chargeable from those from which it was immune ." N.L.R.B.
v. Remington Rant Inc., 94 F.2d 862 (C.A. 2); N. L. R. B. v. Transport Company
of Texas, 438 F.2d 258, 262 (C.A. 5, 1971).
G. The Discriminatory Assignment of
Regular or Straight Time
In addition to the matter of assignment of overtime, the
complaint, as amended at the outset of the hearing , further
alleges that Respondent discriminated against the employ-
ees named in the preceding section by , beginning on or
about the latter part of July or the early part of August 1973,
decreasing the number of hours of regular or straight time
work available to them.
Respondent 's records reveal that prior to about the sec-
ond week df July 1973 , all of Respondent's employees, with
rare exceptions (which may be explained by the fact that
they were out sick, or reasons of a similar nature), regularly
worked a 40-hour week. Thereafter, particularly during the
remainder of August and in September , October, and in
some instances in November 1973,32 a number of the em-
ployees , on as many occasions as from 1 to 3 weeks per
month (depending upon the department ) worked less than
the regular 40-hour workweek. This reduction in regular
hours usually left them with a 32- or 38-hour week , in some
instances less.
Concering the reason for the occasions of the reduction
in regular hours , Respondent adduced correspondence and
testimony to the effect that this resulted from cancellation
of certain orders and because of various other economic
circumstances . This evidence was not refuted and I see no
basis for rejecting it 33 However , there again remains the
question of whether Respondent discriminated against the
union adherents in the assignment of such regular work
hours as were available . Although Respondent contends
that all employees were "equally without work" during the
days of reduced production hours , its records demonstrate
that to a significant extent , and in some departments in
particular, this was not always so . Thus , the records reflect
that two discriminatees , Ira Miller and John McCastle, were
employed in the welding department during the period in
question . During this time , there were 7 weeks when Miller
did not work the regular 40-hour week, and 6 weeks when
McCastle did not. In most instances, these workweeks were
reduced to 32 hours. However , during this same period two
new employees (hired in about the first week of August)
were regularly assigned to work full 40 -hour weeks; 34 and
Antonio Juarez , the only other senior employee, worked a
full 40-hour week on all but two occasions . 75 Respondent
offered no explanation whatsoever for this disparity in work
assignment as between the Union and nonunion employees.
Further , with respect to the assignment of regular hours the
records clearly show, and I find , that during this period
similar patterns of disproportionate work assignment be-
tween the discriminatees and nonunion employees existed
in the paint department, the loading and finishing depart-
32 The records in evidence do not go beyond November 1973.
33 I think it also clear that , absent the inauguration of the second shift, the
remaining employees would have continued to work a full -time week. How-
ever , and for the reasons previously noted , this is a factor which cannot be
considered in determining the issue under discussion.
34 With the minor exception that on one occasion one of the new employ.
ees worked a 38-3/4 week . In another week he worked 39-1/4 hours.
35 Significantly , on the two occasions when Juarez did not work 40 hours,
his workweek was reduced to only 37-1/2 hours , not to 32 hours, as were
those of the two discriminatees in most instances during this period.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, the shearer department and in the press department.36
Again Respondent gave no explanation for such disparity
in treatment. Upon the entire record, and for the same
reasons I have previously given in finding that Respondent
discriminated against the employees heretofore named with
respect to the assignment of overtime, I find that Respon-
dent discriminated against the named employees who re-
spectively worked in the following departments: welding,
paint, loading and finishing, shearing, and press.37 Respon-
dent thereby violated Section 8(a)(l) and (3) of the Act.
H. The Alleged Discrimination Against Employees in Vio-
lation of Section 8(a)(3) and (4) of the Act
1. Willie E. Easley
Willie Easley was employed by Respondent for almost 22
years, until he left the Company on November 20, 1973.
However, prior to leaving he was suspended on October 30
for a period of approximately 6 days. The complaint alleges
that this suspension was violative of Section 8(a)(1), (3), and
(4) of the Act.
The incident that purportedly gave rise to Easley's sus-
pension occurred about 10 a.m. on October 19. Easley, a
group leader and seamer operator, and also designated by
Respondent as a promoter of safety on thejob, at this time
was operating the seamer with Todd Wilkinson, a relatively
new employee who was hired in latter May 1973. As to this
particular operation, however, Wilkinson had been working
with Easley for only about 10 days. In any event, Easley
related the incident in question as follows:
I was operating a machine with a young man named
Todd Wilkinson, and I noticed that he was operating
the machine in a careless way. He was putting his hand
between the drum and the seamer, and I told him, I
mean I told and showed him the danger in it, so he
began to smile then, and I asked him what was he
smiling at so he said it was a privatejoke . . . and I told
him it would not be a joke if the machine came in and
cut his hand off, and I left.
Concerning the above incident, Wilkinson testified that
while working with Easley on the occasion in question a
thought crossed his mind which caused him to smile. Easley
asked what he was smiling about and he replied "nothing."
However, he said he continued to smile and Easley persisted
in knowing why. This time , he testified, he told Easley that
36 Since this is clearly revealed in Respondent 's records which are in evi-
dence (Resp Exh . 3), 1 do not deem it necessary to detail all this data in this
Decision In connection with the remedial order which I shall recommend
concerning the allegation under discussion , this disparity in assignment of
regular work hours as between the discriminatees and the nonunion employ-
ees can be readily obtained from these records at the compliance state of this
proceeding
37 There were no new or nonunion employees employed in the lacquer
department , all three employees who worked there being comprised of al-
leged discriminatees (J Wiggins, E Robinson, C Smith.) Accordingly, since
there is no showing of any disparity in the assignment of regular hours in this
department, I find no violation as to these employees notwithstanding that
in some instances they did not work a full 40-hour week during this period
it did not concern him. Easley rejoined that "when you
smile in public it disturbs others around you." Wilkinson
replied that there was nothing to worry about. According to
Wilkinson, Easley thereupon stated, "If you think I'mjok-
ing, I'll close the seamer up on you," at which point he put
his hand on a knob of the machine which, depending on
how it was turned, could either close the seamer or stop the
machine . In essence , Wilkinson testified that he construed
this as a threat to have his hands chopped off and that he
quickly pulled them out of the seamer.
Wilkinson did not report the above matter to any supervi-
sor, and he and Easley continued to work together in the
operation of the seamer for the next 4 or 5 days without
further incident. However, on October 24, 5 days after the
incident, Easley was summoned to Juarez' office. With a
secretary present, Juarez first questioned Wilkinson con-
cerning an incident involving employee Robinson, which is
discussed in the next section. According to Wilkinson, Jua-
rez finally mentioned that he had heard "about what had
happened with me and Willie on the seamer ." With the
secretary taking notes, Wilkinson proceeded to relate his
version. Upon finishing, Juarez asked if he wanted to "press
charges." When Wilkinson stated that he did not think it
would be worth while, Juarez replied, according to Wilkin-
son, "Well we'll call the sheriff's department and find out
what they say." 38
At this point President Long filled in Respondent' s case.
He testified that Juarez brought him statements he had
taken with respect to the Easley and Robinson incidents.
Continuing, Long testified that he read them over whereup-
on, on the following morning, he called the sheriff and
advised him that he had reason to believe that he had a
problem of a criminal nature in the plant, and that the
sheriff should "please take whatever action he felt was nec-
essary in this investigation ." A detective thereupon came to
the plant. He interviewed several employees, but not Easley
or Robinson. According to Long, the detective finally told
him that there was a serious problem at the plant and that
some of the people believed they had been threatened. Long
testified that when it came to the question as to who would
swear out warrants, it was agreed that this would be done
by the sheriff's department.
The police came to the plant on October 30. Easley testi-
fied that he was advised of their presence by Juarez and
Neville, who at the same time informed him that he was
being suspended. The police then showed him a warrant
and took him to the police station and booked him. He was
released after posting a $500 bond.
On November 2 Long telephoned Easley at home and
asked him to come to the plant to give his side of the story .39
This he did. Thereafter, on November 5 and largely at the
behest of the Escambia County Coalition,40 Easley was
again summoned to the plant. At this point, after a confron-
tation with Wilkinson, he was reinstated.41 Easley continued
38 Juarez did not testify at all with respect to this aspect of the case (i e
the discriminatees discussed in section H of this Decision)
39 Neville testified that he did this at the request of a friend of Easley's
40 Described as a civic group whose purpose is to foster better interracial
relations
41 Long testified that he felt he would be ah .e to influence the State Attor-
ney, and that at this time he called him to advise that no useful purpose would
be served in prosecuting Easley because he had mediated the case between
FLORIDA DRUM COMPANY 615
to work for Respondent until November 20, at which point,
after 22 years , he voluntarily left the Company.
Turning to my conclusions , from my observation of the
witnesses I credit the testimony of Easley over Wilkinson
concerning the October 19 incident . Easley was a quiet and
forthright witness and gave every appearance of telling the
truth . I was not similarly impressed with Wilkinson. More-
over , and while not relying on this in making this determina-
tion , I do note that Easley had long and faithfully served the
Respondent, he was acknowledged to be a "good employ-
ee," and he had never been in trouble before. 2
Absent an intent to discriminate against this employee, I
find it incredible to believe that under normal circum-
stances Respondent would have inaugurated police action
against him and suspended him without at least first hearing
his side of the story . As indicated above , I have found
Easley not to have engaged in any conduct which would
warrant his suspension , much less what must have been for
him a humiliating experience in being taken from the plant
to the police station in the custody of the police . In short,
I find that the incident given by Respondent for its course
of action against Easley was pretextual and unfounded in
fact . In the atmosphere of antipathy towards the Union,
illustrated by the conduct previously discussed , I think it
clear and find that Respondent 's suspension of Easley was
based upon antiunion considerations , including the fact
that he had given testimony under the Act43 I find that by
such conduct Respondent violated Section 8(a)(1), (3), and
(4) of the Act.
2. Eddie Robinson
Eddie Robinson, who worked in the lacquer department,
was employed by Respondent in September 1967. Robinson
was one of the union adherents and initially testified in this
proceeding on October 17, 1973. Suspended by Respondent
on or about November 2, 1973, this suspension was changed
to a termination on or about November 21, 1973.
The incident which is given by Respondent as the reason
for Robinson's suspension and termination occurred on Fri-
day, October 19, 1973, and-involved an alleged altercation
between Robinson and Paul Starkie, the latter employed in
the paint department as a chime sprayer since about the
latter part of July or early August 1973. Respondent called
three employees as witnesses to the incident. Starkie, the
principal involved, related that during the evening of Octo-
ber 19 a breakdown occurred on a part of the paint spraying
machinery which he was operating. It was about near the
Easley and Wilkinson. The State Attorney agreed and the charges were
subsequently nolle grossed.
42 Indeed, in commenting upon his finally consulting with Easley about the
incident, Long testified as follows:
Bill Easley had worked for 22 years, I had to give him, he was a good
employee , I had to give him the benefit of the doubt that he was telling
me what had happened in good faith, by the same token I felt that Todd
Wilkinson and Dean were acting in good faith and feeling that they were
threatened. .
43 Easley testified earlier in this proceeding on October 17, 1973. He was
one of the more active union adherents, having solicited nine employees to
sign union cards and having attended approximately 10 union meetings, all
of which was reflected in his October 17 testimony.
end of the shift, he testified, that Robinson, who did not
work in his department and who normally would have no
occasion to be there, walked up and asked if his machine
was ready for 55 gallon drums. According to Starkie, he
replied that it was not and that the maintenance department
was working on a broken part, whereupon Robinson stated,
"Well why don't you just quit farting around and get off
your ass and fix it yourself?" Starkie rejoined, "Why don't
you go back to the lacquer department where you belong?"
At this point, according to Starkie, Robinson pulled out a
pocket knife, opened the blade and holding it inches from
his face said, "Why don't you shut up." With several other
employees approaching Robinson put the knife back in his
pocket and walked away from the area.
Robert Dean was one of the employees who was ap-
proaching Starkie and Robinson when the incident oc-
curred. Corroborating Starkie's testimony, Dean testified
that at this point he observed Robinson pull a knife on
Starkie. He said he asked Starkie what had happened,
whereupon Starkie related the entire incident, as stated
above. Todd Wilkinson, who was with Dean as they ap-
proached Starkie and Robinson, testified that although he
did not see a knife, he did observe that Robinson, when
Robinson saw them coming, "did something with his hand
and put it back in his pocket, then turned and walked
away." However, as part of the res gestae, Wilkinson testi-
fied that at this point Starkie related what had just hap-
pened, including the fact that Robinson had pulled a knife
on him.
Word of the above incident reached management , where-
upon Juarez, upon instructions from Long, called in Starkie,
Dean, and Wilkinson and took statements from them con-
cerning the matter. This time Respondent also gave Rob-
inson an opportunity to give his version. Interviewed by
Juarez on the following Monday, October 22, in the pres-
ence of Neville and Gagnet, Juarez asked if he had pulled
a knife on Starkie. Robinson denied having done so but
stated that he had pulled a knife on Bruner as they were
engaged in horseplay at the end of the shift.
Respondent subsequently called the police to investigate
the matter. They came to the plant and interviewed various
of the employees following which they took him to the
station and booked him for assault. On the same day he was
suspended. Long testified that because of the seriousness of
the matter, he finally decided that Robinson should be ter-
minated. A registered letter to this effect was sent to him on
November 21, 1973, although it was returned " undeliv-
ered."
Concerning all the foregoing, Robinson denied ever hav-
ing threatened Starkie with a knife or that the Starkie inci-
dent ever occurred. However, Robinson did testify, as did
several other witnesses called by the General Counsel, that
at quitting time on October 19, he was engaging in horseplay
with Bruner near the timeclock in the presence of a group
of employees who were about to punch out and that at this
time he jokingly pulled a knife on Bruner . While I have no
doubt but that this incident did occur, particularly as re-
flected by the corroborative testimony of the other employ-
44 While the latter testimony came in without objection, I deem it admissi-
ble as part of the res gestae.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ee witnesses , this does not negate the possibility that the
earlier incident between Robinson and Starkie also oc-
curred . Upon the entire record , and from my observation of
the witnesses , I am not prepared to say that the substantially
corroborative testimony of Starkie , Dean, and Wilkinson
concerning this incident was fabricated . Further , in this
instance Respondent did investigate both sides of the inci-
dent and did give Robinson the opportunity to have his say.
It hardly can be said that Respondent was not justified for
taking the action in kind over a matter as serious as that
involved here.
I find and conclude that the General Counsel has not
established by a preponderance of the evidence that
Respondent 's suspension and termination of Robinson was
in violation of Section 8(a)(1), (3), and (4) of the Act. Ac-
cordingly , it is recommended that this allegation be dis-
missed.
3. Don West
Don West began working for Respondent in March 1973.
As a college student he started as a part-time employee in
the press department with a 20-hour workweek. Several
months later, upon completion of the school year, he was
put on a regular 40-hour workweek and usually was also
required to work on Saturdays. He was hospitalized in Sep-
tember 1963, and returned to work about the second week
of October. West testified that the occasion of his return to
work at this time coincided with his fall college schedule and
that he therefore found it necessary to speak to Plant Man-
ager Juarez and John Sterling, the press shop supervisor and
his immediate foreman,45 about a change in his work sched-
ule. According to the undenied testimony of West he at this
time reached an agreement with Juarez and Sterling that his
regular hours would be from 3 p.m. to 7:30 and also that if
his scholastic work permitted and if they needed him, he
would be permitted to continue working after 7:30 and on
Saturdays. He testified without contradiction that his ar-
rangement was followed for the next several weeks.
West testified in the instant hearing on October 18. This
testimony, as previously set forth in this Decision,46 was
extremely adverse to Respondent 's interests in this proceed-
ing. West related, again without contradiction that approxi-
mately 2 or 3 weeks after testifying Foreman Sterling came
up to him while he was working and told him that as of then
his hours would be from 3 to 7 p.m., and that he would not
be given any further overtime or Saturday work. Upon ask-
ing for the reason for this change, Sterling replied that it was
upon instructions from Juarez. West testified that several
times thereafter he asked Sterling to give him Saturday
work, but that Sterling declined. When he again pressed
Sterling as to the reason, Sterling finally said he would have
to talk to someone higher up. West testified that he, finally
went to see Neville and that he took his brother with him
"because from what was going on in this Court, I wanted
to have a witness." West testified that when he asked to have
the same work schedule as before, Neville became angry
45 Respondent 's answer in Case 15-CA-5062, el aL, admits that Sterling
was a supervisor within the meaning of the Act since May 21, 1973.
46 Section C, "Respondent Union Animus."
and in essence told him that the Company could not work
out schedules to suit his needs and that there were other
part-time employees who did not work extra hours.
Although Neville was queried on direct and cross-exami-
nation with respect to West's change in work hours during
the period in question, there was nothing in his testimony
to refute the material points of West's testimony on the
subject. However, at one point he gave the following re-
sponse to a question as to why West no longer was permit-
ted to work overtime: "The reason he did not work overtime
is that we have had a 20 percent reduction in the amount
of production that we have to produce due to the national
steel shortage and we do not have need for this overtime
that we formerly had." Beyond this he did not elaborate,
although elsewhere in his testimony he did concede that in
the months after October 1973, the press department still
had occasion to work overtime as well as on some Satur-
days.
To summarize the salient points above, the uncontrovert-
ed testimony of West establishes, and I find, that in early
October Respondent acceded to West's request that his reg-
ular hours be reduced, but at the same time agreed that he
could continue to work overtime and on Saturdays when his
and the Company's schedule so permitted. This agreement
was given effect until about 2 or 3 weeks after he gave
testimony against Respondent in this proceeding. He was
then notified, without explanation except that it was from
orders of the plant manager, that from thence forward he
no longer would be permitted to work after his regular
quitting time or on Saturdays. Beyond this West testified, as
Neville conceded, that thereafter other employees contin-
ued to work overtime and on Saturdays. Indeed, West testi-
fied without contradiction that after he had been notified of
the plant manager's order, Foreman Sterling told him many
times that "we were short and running behind, he would like
to have me stay but he couldn't because Mr. Juarez would not
let him." (Emphasis supplied.)
Upon all of the foregoing, and particularly in view of
Respondent's sudden and unexplained refusal to permit
West to continue working overtime and on Saturdays short-
ly after giving adverse testimony, I find and conclude that
the General Counsel has established a prima facie case in
support of the complaint's allegation as to West. As in the
cases of other discriminatees herein, I am persuaded and
find that Respondent's action was taken as a retaliatory
measure against West, except that this was for his having
given testimony under the Act rather than for having en-
gaged in union activity. By such conduct, I find that Re-
spondent violated Section 8(a)(4) of the Act 47
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate , and substantial relationship to trade, traffic, and
47 Respondent argues that its records reflect that West in fact worked
"extra hours" on various occasions after October 1973. However,
Respondent's records are not clear in this regard. If indeed there were any
such instances , clearly these would be too isolated to effect the basis for my
findings and conclusions as stated above.
FLORIDA DRUM COMPANY 617
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
suspended Willie E. Easley, I shall recommend that Re-
spondent be ordered to make him whole for any loss of
earnings he may have suffered during the period of his
suspension. Backpay shall be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon at 6 percent com-
puted in the manner and amount prescribed in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
It having been found that Respondent discriminatorily
reduced the amount of overtime work of employee Don
West, I shall recommend that Respondent make him whole
for any loss of earnings he may have suffered as a result of
such discrimination.
It having been found that Respondent discriminatorily
transferred Willie E. Bruner and James E. Thurman to the
second shift, and assigned them to more onerous work, I
shall recommend that Respondent be ordered to reinstate
them to their former or substantially equivalent Jobs on the
first shift.
It having been found that Respondent, beginning on or
about May 20, 1973, decreased the amount of overtime
work available to the employees named below, and that
since on or about the early part of August 1973 decreased
the number of hours regular or straight time to the said
employees, I shall recommend that Respondent be ordered
to make them whole for any loss of earnings they may have
suffered as a result of said discrimination. These employees
are:
John Lee Barnett Nathaniel McCorvey
Fred T. Bradley Ira Miller
Willie E. Bruner Eddie Lee Robinson
William H. Crenshaw James Robinson
Walter J. Davis Edward Lee Smart
Willie E. Easley Claude Smith
Charles Johnson Clement W. Smith
Willie Kyzer James E. Thurman
Willie McCarthy, Jr. Brunner Wiggins
John Arthur McCastle Joe Wiggins, Jr.
In view of the nature and extent of the unfair labor prac-
tices herein found, it will be recommended that Respondent
be ordered to cease and desist from in any manner infring-
ing upon the rights guaranteed employees in Section 7 of the
Act.
the amount of overtime and regular time of the employees
named in the section of this Decision entitled "The Reme-
dy," and by discriminatonly transferring Willie E. Bruner
and James E. Thurman to the second shift and assigning
them to more onerous work, thereby discouraging member-
ship in the Union, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(3) and (I) of the Act.
3. By suspending Willie Easley and by reducing the
amount of overtime work available to Don West because
the said employees gave testimony under the Act, Respon-
dent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(4) of the Act.
4. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the Act
by its termination of Eddie Robinson.
Upon the basis of the foregoing findings of fact, and
conclusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby make the
following:
ORDER48
Respondent, Florida Drum Company, Inc., Pensacola,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge, or that it will
close the plant, or that they will lose employee benefits
because of their union activities or sympathies.
(b) Creating the impression among the employees that it
is engaging in surveillance of their union activities.
(c) Coercively interrogating employees concerning their
union membership, activities, or sympathies, or the union
membership, activities, or sympathies of other employees.
(d) Suspending employees, changing the work schedules
of employees, assigning employees to more onerous work,
reducing the amount of overtime or regular time available
to employees or otherwise discriminating against any em-
ployee in regard to hire or tenure of employment or any
term or condition of employment for engaging in any union
activity protected by Section 7 of the Act, or for giving
testimony under the Act.
(e) In any other manner interfering, with , restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, as amended.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is
a labor organization, all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Willie Easley, by discriminatorily reducing
48 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order , and all objections thereto shall be deemed
waived for all purposes
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Assign Willie E. Bruner and James E. Thurman to the
day shift, and reinstate them to their former or substantially
equivalent positions which they held on that shift.
(b) Make the following employees whole for any loss of
pay they may have suffered as a result of the discrimination
against them in the manner provided in the section of this
Decision entitled "The Remedy":
John Lee Barnett Ira Miller
Fred T. Bradley Eddie Lee Robinson
Willie E. Bruner James Robinson
William H. Crenshaw Edward Lee Smith
Walter J. Davis Claude Smith
Willie E. Easley Clement W. Smith
Charles Johnson James E. Thurman
Willie Kyzer Brunner Wiggins
Willie McCarthy, Jr. Joe Wiggins, Jr.
John Arthur McCastle Don West
Nathaniel McCorvey
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amounts of backpay due under
the terms of this recommended Order.
(d) Post at its plant in Pensacola, Florida, copies of the
attached notice marked "Appendix." 49 Copies of the no-
tice, on forms provided by the Regional Director for Region
15, after being duly signed by Respondent's authorized rep-
resentative, shall be posted by it for a period of 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of the receipt of this
Decision what steps the Respondent has taken to comply
herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found herein.
49 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
which convey the impression that we are keeping the
union activities of our employees under surveillance.
WE WILL NOT coercively interrogate our employees
concerning their union activities or sympathies, or
about the union activities and sympathies of other em-
ployees.
WE WILL NOT suspend or otherwise discriminate
against our employees in regard to hire or tenure of
employment, or any term or condition of employment,`
because they have engaged in union activities or be-
cause they have given testimony under the Act.
WE WILL NOT reduce the amount of overtime or regu-
lar time work available to our employees because of
their union activities or sympathies.
WE WILL NOT change the work schedules of our em-
ployees or assign them to more onerous work because
they have engaged in union activities.
WE WILL make the following employees whole for any
loss of pay they may have suffered by reason of the
discrimination against them:
John Lee Barnett Ira Miller
Fred T. Bradley Eddie Lee Robinson
Willie E. Bruner James Robinson
William H. Crenshaw Edward Lee Smart
Walter J. Davis Claude Smith
Willie E. Easley Clement W. Smith
Charles Johnson James E. Thurman
Willie Kyzer Brunner Wiggins
Willie McCarthy, Jr. Joe Wiggins, Jr.
John Arthur McCastle Don West
Nathaniel McCorvey
WE WILL reassign Willie E. Bruner and James E.
Thurman to the day shift and to the former or substan-
tially equivalent jobs which they held on that shift.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce our employees in the exercise of their
rights to self-organization to form, join, or assist Retail,
Wholesale & Department Store Union, AFL-CIO, or
any other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with discharge,
with loss of company benefits , or that we will close our
plant because they have engaged in union activities.
WE WILL NOT engage in conduct or make statements
Dated By
FLORIDA DRUM COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Plaza Towers, Suite 2700, 1001
Howard Avenue, New Orleans, Louisiana 70113, Tele-
phone 504-527-6361.