G. H. Hicks and Sons, Inc.

National Labor Relations Board - Board DecisionsApr 11, 1963

141 N.L.R.B. 1272 (N.L.R.B. 1963)

1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT authorize, circulate, condone, or ratify the preparation and circulation of a petition denouncing the Union among, nor will we solicit signa- tures thereto from, our employees during their regular working hours. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 181, or any other labor organization, to bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities. All our employees are free to become and remain, or to refrain from becoming or remaining , members of any labor organization , except to the extent that such right may be affected by an agreement authorized by Section 8 (a) (3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. SHREVEPORT PACKING CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify George Robinson if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, T-6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411 , if they have any question concerning this notice or compliance with its provisions. G. H. Hicks and Sons, Incorporated and International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO. Case No. 9-CA-2682. April 11, 1963 DECISION AND ORDER On February 15, 1963, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices, as set forth in the attached Intermediate Report. He also found that Re- spondent had engaged in certain other unfair labor practices. How- ever, he recommended that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a brief in sup- port of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] 141 NLRB No. 112. G. H. HICKS AND SONS, INCORPORATED 1273 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding , with all parties represented , was heard before Trial Examiner Thomas A. Ricci in Louisville , Kentucky , on December 10 and 11, 1962 , on com- plaint issued by the General Counsel against G . H. Hicks and Sons, Incorporated, herein called the Respondent or the Company . The issues litigated were whether the Respondent had violated Section 8 ( a)(3) and ( 1) of the Act . Briefs were submitted after the close of the hearing by the General Counsel and by International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers & Helpers, AFL-CIO , the Charging Party, herein also called the Union. Upon the entire record, and from my observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY G. H. Hicks and Sons, Incorporated , is a Kentucky corporation engaged in the business of metal fabrication and operates a plant in Louisville , Kentucky . During the past year , a representative period, it sold and shipped its products , valued in excess of $50,000, in interstate commerce from its Louisville plant to points outside the State of Kentucky . During the same period the Respondent purchased and re- ceived goods and materials valued in excess of $50,000, which were transported to its Louisville plant directly from outside the State of Kentucky . I find that the Re- spondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein If. THE LABOR ORGANIZATION INVOLVED I also find, in accordance with a stipulation of the parties , that International Broth- erhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL- CIO, is a labor organization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue of the case As presented by the General Counsel at the hearing this case presents a single critical issue . Within an 8-day period at the end of June 1962, the Respondent laid off 4 of its approximately 25 employees and told them at the time it was for "lack of work." The discharges occurred during a union organizational campaign of which the Respondent was aware , and immediately following a union meeting attended by eight employees , among whom were all four of those laid off. The complaint alleges that the four men were discharged because of their union activities -more precisely, according to the evidence urged by the General Counsel , because they had been present at that meeting . The Respondent defends by asserting that its action was motivated strictly by economic considerations , and it denies any illegal union hostility. There is no direct evidence , either that the decision to reduce the complement at all was made to combat the Union generally , or that these four were selected for layoff because of their individual participation in union affairs . The structure of the case in support of the complaint is therefore composed of indirect components, each separately said to furnish some indication of illegal object , and all of them together urged as warranting a conclusive inference of unlawful purpose. The Respondent undertook , in turn, to establish affirmatively economic reason for its action, and this positive defense also took the form of various evidentiary facts advanced as collectively proving an entirely legal explanation . The case is therefore one of circumstantial evidence . However , I am not called upon to decide between two positive alternatives , that is, whether the four men were discharged for this or for that reason . Rather, in the application of the standard of proof required of the General Counsel under this statute, the sole question is whether or not the com- plaint allegation of illegal motivation is proved "by the preponderance of the evidence." I As I view the General Counsel 's case in its entirety , the real thrust is that all the evidence , including every minute detail , shows that the Respondent selected all four of the men named in the complaint to carry out its scheme of retribution . I do not ' Glen Raven Silk Mills, Inc., 101 NLRB 239, enfd as modified , 203 F. 2d 940 (C A 4). 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understand the General Counsel to have advanced any serious contention that the evidence may suffice to prove illegal motivation in one, or several of the discharges, but not in all But even if I mistake the General Counsel's theory of the case, I can only weigh the evidence in this light, for the very reason that the testimony said to show illegal purpose is not pinpointed to individual employees but is instead aimed, indirectly, to them all as a group. B. Union activity and the layoffs On April 23, 1962, Jesse Sims, staff representative of the Union, called on G. H. Hicks, president of the Company, in his office and asked for "bargaining rights " Hicks refused and Sims said he would start organizing the employees directly. Hicks then voiced his opinion that the Union could not offer more to the employees than the Company gave them and that he would so tell his employees. Sims did visit the employees at their homes and obtained signatures to an unspecified number of authorization cards. During the same period Hicks called the employees in groups of three and four into his office and told them that Sims intended to call upon them. In these con- versations he made clear that in his opinion they did not need a union, that it could do them little good, and that he was opposed to it. One day he asked employee Senn whether Sims had been to see him; on another occasion, also while talking to Senn about the general advisability of having a union, he said he would "fight against it " He also told one group of employees that "it was perfectly satisfactory, and he was willing for us to meet with him [Sims], and there were no objections whatever to meet with the union agent " To another group Hicks said "he wouldn't do anything to prevent it from getting in." On June 21, at about 5 p.m., Sims called an employee meeting in a nearby cafe, eight employees were present: Gaus, Orman, Keller, Waddell, Neuner, Senn, Decker, and Carlisle. Some of these had signed up with the Union earlier; some signed at that time. There was the usual discussion that takes place at organizational meetings. At the very same time that this meeting was being held, Hicks was returning from a 3-day business trip during which he visited a number of customers; he reached home at about 9 p in. The next morning Woosley, foreman in charge of the entire shop, laid off Gaus and Keller, and told them the reason was "for lack of work." A week later he laid off Carlisle and Waddell, and told them the same thing. All of the foregoing facts are established by clear, uncontradicted and perfectly credible testimony. There is also evidence of other conversations that occurred on June 22, and which are of vital importance to the case as a whole. Hicks testified that he received no orders at all during his 3-day trip, that his long visit throughout the area convinced him that the business was in serious decline, and that therefore, while driving home in the evening of June 21, he decided to reduce the force by two men the next day and two more a week later if the volume of work did not pick up. There is not, and I suppose there cannot be, any contradiction of this testimony. Hicks also said that shortly before 8 o'clock starting time the next morning he spoke to Foreman Woosley, instructed him to lay of Gaus and Keller that day and two more men on June 29. The foreman corroborated this testimony and both men said there was no mention of the Union between them. Woosley went on to testify that he spoke to both Gaus and Keller a matter of minutes after 8 a.m. and told them they were laid off; Keller left then and there, Gaus completed the day. Gaus and Keller were called as witnesses, agreed with the foreman's testimony as to the then stated reason for the layoffs, and said only that they were told "that morning," and "on June 22." As the hearing progressed it developed clearly that the timing of the lay- offs was a very significant matter in the General Counsel's case. In the circumstances, I have no reason to reject Woosley's uncontradicted testimony and find, as he testi- fied, that the men were told of the discharges at just about 8 a.m. Later that morning Hicks had a conversation with employee Orman at work Or- man told Hicks there had been a meeting with Sims the day before, and he listed the names of all eight employees who had attended. Orman said this conversation took place "an hour or two" after he had punched in, that he could not remember the time "at all," but that he was sure it was before lunch. Hicks said it occurred at about 10 or 11 o'clock. The two witnesses contradicted each other flatly as to who first opened the subject of the union meeting. Orman testified that Hicks started by saying he "understood" there had been a meeting and asked who had been pres- ent. In disagreement, Hicks said that Orman simply volunteered the information, and he denied having asked any questions at all. For reasons stated below, I credit Hicks There can be no question, however, regardless of who started this conversa- tion, that it occurred after Woosley had laid off Gaus and Keller, and I so find. G. H. HICKS AND SONS, INCORPORATED 1275 After the two men had been told of their release-the same day according to em- ployee Waddell, a few days later according to the foreman-there occurred another conversation between Waddell and Woosley. According to Waddell, as Woosley was giving him routine work instructions in a tank that was being constructed, he asked the foreman was it true the other two men had been laid off, and Woosley said "yes." Waddell then asked whether this had come about because of their presence at the union meeting, and Woosley replied- "I can't say." At this point, still accord- ing to Waddell, "Well, right there I told him . I didn't ask him anything right there I said, `Well, if that is the case, I think it is pretty damn chicken shit.' " Waddell concluded his version of the conversation with saying that Woosley shrugged his shoulders and walked away. Woosley testified that Waddell opened with: "Am I next?" and that he replied: "What do you mean, next9" Waddell then went on: "Well I was up at that union meet- ing. Am I going to be laid off?" Woosley's only answer, as he recalled, was: "No, Jimmy, the reason the guys were laid off was lack of work." On the question of their credibility, the total testimony of both these witnesses leaves much to be desired. In his efforts to explain how the four men named in the complaint came to be chosen in the reduction in force, Woosley tried to create the impression that there were departments in the shop, and that such delineations ex- plained what was a clear departure from any seniority method of selection. His vacillation, evasion, confusion, and obvious exaggeration on that subject did not serve to make him a persuasive witness. Waddell impressed me even less. He was generally argumentative, elusive, and truculent. His own version of the conversa- tion shows he deliberately set out to provoke the foreman, his uncalled for intem- perate language did not add to his reliability. Moreover, he told an incredible story on another subject. He was laid off at this plant in June of 1961, and rehired the following March at the rate of $1.60 per hour. According to him, he was offered work with another company sometime in May at $2.36 per hour, spoke to Hicks about it, and then, because Hicks told him that after the retirement of another man at a future date Waddell might be promoted to head grinder at $2.20 per hour, he, Wad- dell, decided to remain with the Respondent and his rate was increased 10 cents. Asked how long he expected it would take for him to progress to the position of head grinder, Waddell said: "Five or six years or maybe ten years." On balance, and in the light of the total testimony and demeanor of both men.. I credit Woosley on this conversation with Waddell. Keller was recalled and returned to work on October 22. Waddell was also re- stored to work at a later date. Gaus and Carlisle have not worked for the Respond- ent since the June events. There is further evidence, for the most part on the subject of the Respondent's assertion of economic necessity for reducing the work force in June. Some of this is objective data from its business records; other portions consist of conclusionary statements by company representatives and various expressions of opinion. All of this will be better understood as part of the discussion that follows. C. Analysis and conclusion As set out above, Hicks' testimony is that he concluded during his business trip that work had declined and therefore decided, before reaching home, to reduce the force. Hicks said he knew nothing of the union meeting when he decided to lay off employees, that their union activitives were in no sense a factor in his mind, and that the four men were selected for reasons entirely unrelated to any union sympathies. Apart from these men, no other employee was laid off during the period March through October 28; as to discharges before or after that time, there is no indication. Hicks was opposed to the Union; he went out of his way to see that the employees knew this; he even said to one of them, at least, that he would fight it. On the very day after the union meeting-the day when Hicks concededly learned who had at- tended-the first two discharges took place. The extraordinary coincidence-if co- incidence it was-appearing in the almost simultaneous occurrence of the meeting and the discharges, is matched by the very high mathematical improbability that all of the 4 men selected for layoff on a nondiscriminatory basis would chance to be among the only 8, out of a total complement of about 25, who had been present at the union meeting. This is essentially the case in support of the overall inference of illegal motivation called for by the complaint. It finds further support, according to the General Counsel, in certain weaknesses in the evidence advanced by the Re- spondent to prove lawful reasons for the discharges. There is nothing in the record showing how many employees signed authorization cards in favor of the Union, or how many of them were sympathetic towards it. As any number of them could also have joined the Union by June 22, attendance at the 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 21 meeting must be the particular activity which distinguishes the group of eight from among the rest , and which is to be considered in evaluating the case as a whole. In concluding that these four men were released because of their presence at that meeting, a factual assertion necessarily implicit in the General Counsel 's theory is that Hicks knew of their attendance at the time he decided to discharge them. Whether this exact knowledge is to be imputed to him on the basis of the total circumstances, or whether it must rest upon direct testimony , there must be a subsidiary finding that he possessed it, else the complaint stands on very weak grounds. Holding in abeyance, for the moment , the question whether Hicks asked Orman to disclose who had been at the meeting , or whether Orman just volunteered , it is clear that from Orman at least Hicks could not have obtained this vital information until after Gaus and Keller had been laid off on June 22. The men were told they would have to go at 8 o'clock; Hicks did not speak with Orman until later in the morning. By the time Hicks released Carlisle and Waddell on the 29th , he did know they had met with Sims. But this knowledge cannot itself retroactively charge Hicks with like knowledge as to Gaus and Keller at 8 o'clock a week earlier. Moreover , there is no direct evidence as to why Hicks picked Carlisle and Waddell , as explained above, a finding that he did so because of their attendance at the June 21 meeting can only be reached in the form of an inference arising from the total facts . In order to find, then, that Gans and Keller were also released because of union activities , it becomes neces- sary to use the inference made respecting Carlisle and Waddell to supply the essential ingredient of knowledge in the first discharges . This would become a form of inverse reasoning , as it were ; the inference of illegal motive as to Carlisle and Waddell be- comes a fact which in turn constitutes support for the further inference both that Hicks knew that Gaus and Keller had attended the meeting and that he laid them off for that reason. And it may well be that such reasoning , which rests inference upon inference , would be perfectly defensible in other circumstances In terms of the burden of proof resting upon the General Counsel to come forth with "the preponder- ance of the evidence ," this short of proof is not very persuasive in this instance. Moreover, I credit Hicks' version of his conversation with Orman on June 22. Clearly there was little sense of restraint in the general conversations that went on in the plant between employees and supervisors . The men spoke their minds freely, and so, apparently , did Hicks . Waddell opened up with the foreman and volunteered the fact he had been at the union meeting. In his direct testimony Orman offered the comment "there wasn 't anything wrong with telling who was at the meeting." At one point during cross -examination he vacillated on whether it was he who gave the information without being asked. A. Well, I don't remember anything . .. I don't remember exactly what all was said. Q. Now, you are sure that you didn 't tell him that there had been a union meeting first? A. I might have . . . I might have told him . . . I don't remember whether I told him a . . . outside the stockroom or not. I might have. In the end Orman again insisted that it was Hicks who had inquired first. On this question I think it also fair to consider the fact that Hicks more than once told the employees he had no objection to their meeting with the union representative. On the other hand , I also have in mind that in explaining the discharge of Keller, Hicks, like Foreman Woosley, said many things that sounded very much like afterthoughts. In sum , considering all the testimony and the demeanor of both men on the witness stand, I find that Hicks did not interrogate Orman respecting the union meeting. In the overall picture of the case, there are other elements which the General Counsel correctly contends are pertinent to the main issue , and each of which to a degree, however slight, point a finger of suspicion at the Respondent . Hicks was op- posed to the Union and he did say to one employee he would "fight" it. He asked employee Senn did he think the Union would win , and Barnes whether the union representative had been to see him, questions which in certain circumstances have been viewed by the Board as coercive forms of interrogation . And finally , there is the fact that the discharges came during the organizational campaign with no ad- vance notice , and immediately after the union meeting. As in all cases of circumstantial evidence , there are other facts softening the prima facie impact of all this. While to one man Hicks said he would fight , to others he said he was not concerned with whether or not they met with the Union . By the word "fight" could he have meant hard bargaining if the Union became bargaining agent? Employee Senn testified Hicks told him he had "been talking about getting up" a profit-sharing plan for the employees ; but this was in response to Senn , who himself had broached the subject . Keller said he overheard Hicks tell employee Roberson that G. H. HICKS AND SONS, INCORPORATED 1277 if there were a union and a layoff became necessary, the junior men must be released first, and Hicks could no longer keep them in preference. Keller also conceded he could not repeat Hicks' sentence "word for word," he just happened to be passing by while Hicks and Roberson were talking, and he heard no other part of their conversa- tion. Carlisle walked past Woosley one day and saw him reading some kind of a book-Carlisle did not know what. Without stopping, Carlisle asked what the fore- man was reading, and Woosley said "I'm reading up so I can work your ass off when you become union steward " Carlisle said it was all friendly, and he grinned at the foreman. I think the strongest prop of the General Counsel's case is pegged to the fact that all four of the discharged men had been at the union meeting, and only they were let go. Had it been shown that the Respondent knew who was and who was not pro- union, this numerical factor would have great significance. But so far as this recoid shows, Hicks picked Gaus and Keller out of a clear sky. If judgment is to be passed on the basis of the record proof, I must deem Hicks as having consciously selected two men who had been at the union meeting and the two who, so far as he knew, had not. But when only half of the persons selected for layoff are known union sym- pathizers, and the rest not, there is little that can be inferred from any linear equation.2 On the question of factors other than union activities as explaining the layoff, the record as a whole neither strengthens nor weakens whatever inference, or sus- picion, of illegal motive can be found. Hicks' testimony that in his opinion business was in decline, or any of the many statements he offered detailing his mental opera- tions, are of course purely self-serving declarations quite like the answer to the complaint. He did say, however, that because orders for future work were not being received, his anticipation was that there would be less need in the future for the number of employees he then had. What company records were received in evidence lend some support to this assertion. The backlog of orders was measured to reflect the number of man-hours of work still to be performed as of the first of each month, with June 22 measured in place of July 1. For a 9-month period these were the following numbers of man-hours of work to be performed at the start of each month; January 1, 1962-4,504; February 1-4,042; March 1-2,471; April 1-3,266; May 1-4,517; June 1-4,345; June 22-3,344; August 1-1,684; Sep- tember 1-1,792. The only other figures on the volume of work in the shop reveal the total billings for work delivered to customers during each of 4 months; these totals include materials and indirect costs as well as direct labor and are therefoie subject to unknown factors because of the variable prices of different raw ma- terials used. Billings for May were $52,000, for June $30,000, for July $103,000 and, for August $24,000. Obviously much work was performed in July, the very month after the staff was reduced, as clearly, however, it dropped radically during August Could this have been because by the end of June incoming orders had dwindled badly, as Hicks said, and the July deliveries have represented primarily performance on older orders? During the 4-week period following June 22, there was a substantial increase in the amount of overtime work performed, particularly by welders like Keller. During the next month, overtime work disappeared al- most entirely. One of the men released, Gaus, was the last to be hired Keller had been with the Respondent a long time, but he admitted having a very poor record of absences and tardiness; he was warned a number of times, but he did not improve. And Keller was picked for layoff without the Respondent knowing that he was any more union-minded than the rest. And finally, although four men were released, only one, Hall, was hired in July, and none other until Keller and Waddell were recalled. Were I to decide whether the Respondent has proved that in fact the four men were released purely because of economic need, I would rule it has not done so on this total record. Indeed the evidence may even serve less to prove the affirma- tive defense than to support the positive inference of illegal motivation asked for by the General Counsel. I think this is a very close case, and I am aware that the circumstances make the Respondent's action suspect. But suspicion is not proof. After carefully weighing the record in its entirety including what has been detailed above and the many other nuance phrases appearing throughout the testimony, I conclude that the basic allegations of the complaint have not been sustained, and I shall therefore recommend dismissal of the complaint insofar as it alleges viola- tions of Section 8(a) (3) of the Act. 2 Great Eastern Color Lithographic Corp , 133 NLRB 911, enfd. as modified, 309 F 2d 352 (C.A. 2). 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One or two of the statements made by Hicks, or possibly Woosley, border close upon the line beyond which employer officials illegally restrain and coerce em- ployees in violation of Section 8(a)(1). Among these are Hicks' inquiry on whether Sims had visited an employee 's home, and on whether an employee thought the Union would achieve a majority. Even in jest, the foreman 's statement that he was preparing to harass any possible union steward in his employment is ordinarily improper. Considering this case as a whole, however , and as no other unfair labor practices have been proved against the Respondent , I do not think any useful purpose would be served by issuance of a formal cease and desist order directed against such isolated, and , at best, very minor infractions of the proscription set out in the Act . Accordingly, I shall recommend dismissal of the complaint in its entirety. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions , I recommend that the complaint herein be dismissed in its entirety. United States Air Conditioning Corporation and International Union , United Automobile , Aerospace and Agricultural Imple- ment Workers of America , UAW (AFL-CIO). Case No. 8-CA- 1789. April 11, 1963 SUPPLEMENTAL DECISION AND ORDER On July 19, 1960, the Board issued a Decision and Order in the above-entitled case,' finding that the Respondent had discriminated against 22 named employees in violation of Section 8(a) (3) and (1) of the National Labor Relations Act, as amended, and directing, inter alia, that the Respondent offer immediate and full reinstatement to 21 of these employees and make them whole, and also make whole the estate of a deceased employee, for any loss of pay suffered by reason of the Respondent's discrimination. On November 30, 1961, the United States Court of Appeals for the Sixth Circuit entered its decree enforcing in full the Board's Order including the reinstatement and backpay provisions.' On August 10, 1962, the Board's Regional Director for the Eighth Region issued and served upon the parties a backpay specification and notice of hearing, and issued amendments to this specification on August 31 and September 21,1962; the Respondent filed answers there- to. Pursuant to notice, a hearing was held before Trial Examiner C. W. Whittemore for the purpose of determining the amounts of back- pay due. On December 26, 1962, the Trial Examiner issued the at- tached Supplemental Intermediate Report, finding that the Regional Director's specifications fully met the requirements of the Board's Rules and Regulations, and that the Respondent' s answers thereto did not meet the allegations in the specifications; accordingly, the 1128 NLRB 117. 2 The court entered a consent decree which is unpublished. 141 NLRB No. 113.