Guyan Machinery Co.

National Labor Relations Board - Board Decisions

Nov 8, 1965

155 N.L.R.B. 591 (N.L.R.B. 1965)

GUYAN MACHINERY COMPANY 591
heart of the Act," as that phrase is used in N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d
532, 536 (C.A. 4), they nevertheless are neither sporadic nor isolated. Hence I find
that it may reasonably be anticipated that such conduct is likely to recur. Accord-
ingly, I find that an order restraining the same or related conduct in the future is
warranted on the record before me.
Upon the basis of the foregoing findings of fact and of the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. United Stone & Allied Products Workers of America, AFL-CIO, is a labor
organization within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer within the meaning of Sections 2(2) and 8(a) and
is engaged in commerce as defined in Section 2(6) and (7) of the Act.
3. Respondent has engaged in unfair labor practices within the contemplation of
Section 8(a)(1) of the Act by: (a) threatening employees with discharge and other
economic reprisals if they joined or assisted the Union or selected it as their collective-
bargaining representative, (b) coercively interrogating employees concerning their
union activities, desires, and membership, and (c) creating an impression that union
activities of the employees had been and were under surveillance by Respondent.
4. Said unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any other unfair labor practices alleged in the
,complaint.
[Recommended Order omitted from publication.]
Guyan Machinery Company and Local Union No. 505, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Cases Nos. 9-CA-3291
and 9-I?C-6012. November 8,1965
DECISION AND ORDER
On July 19, 1965, Trial Examiner Eugene F. Frey issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint in
Case No. 9-CA-3291 and recommending that the complaint be dis-
missed in its entirety, as set forth in the attached Trial Examiner's
Decision. In Case No. 9-RC-6022,1 the Trial Examiner recommended
that the challenges to 80 ballots be overruled and that the challenges
to 17 ballots be sustained. Thereafter, the Charging Party filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof,
and the Respondent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
1 Pursuant to Section 102.33 of the Board 's Rules and Regulations , Series 8, as amended,
revised January 1, 1965, the Regional Director consolidated this case with Case No.
9-CA-3291.
155 NLRB No. 47.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
Case No. 9-CA-3291
1. In finding, as did the Trial Examiner, that in the circumstances of
this case the Respondent did not violate Section 8(a) (3) and (1) by
discharging the employees named in the complaint, we rely, in addi-
tion to the matters set forth in the Trial Examiner's Decision, on uncon-
troverted documents introduced as exhibits in the hearing which show
that long before the Union commenced organization of the Respond-
ent's employees, the Respondent had planned to discharge 10 to 12
employees and to give a wage increase after the move of its plant was
completed. Further, since the reasons given for the selection of
employees discharged were not unreasonable under all the circum-
stances, we, like the Trial Examiner, find that the General Counsel
failed to prove by a preponderance of the evidence that the employees
were discharged for their union activities.
2. In sustaining the Trial Examiner's ultimate findings, however,
we disavow the following statements of the Trial Examiner and any
implications that could be drawn therefrom in that they are unneces-
sary for the disposition of this case:
(a) In section III, B, of the Trial Examiner's Decision where, in
discrediting employee Rice's testimony, he implies that Rice deliber-
ately lied on the witness stand.
(b) In section III, B, of the Trial Examiner's Decision where he
discussed the circumstances under which an employer's knowledge of
union activity may be inferred from the small size of an employer's
plant.
(c) In section III, C, of the Trial Examiner's Decision where he
states that if the Respondent had discussed the reinstatement of the
discharged employees with the Union, "it might have exposed itself to
charges from antiunion employees of recognizing or assisting the
Union in violation of the law...."
Case No. 9-RC-6022
1. The Trial Examiner found that employee Freddie E. Maynard
was not an employee on the eligibility date and that, therefore, his vote
in the representation election should not be counted. We disagree.
GUYAN MACHINERY COMPANY 593
The record reveals that Maynard was hired as a temporary employee
on July 8, 1964, to assist in the move of the plant. When the strike
began at noon on August 12, he did not return to work. The Respond-
ent marked him on its records as terminated on that day because the
move was completed, but there is no evidence that Maynard was
advised that he was terminated. On August 14, Maynard telephoned
the Respondent and stated that he would work if the Respondent would
bring him through the picket line, which Respondent did. Respondent
tried to use Maynard as a welder and for work on the bay but decided
that he could do neither. The Respondent then tried him on the open
hearth and decided he "might be able to do that." 2 Maynard did not
come back the next day but joined the picket line.
Thus, although Maynard was a temporary employee on August 12,
he was not terminated by the Respondent until he failed to return to
work because of the strike called by the Union. Since the Employer
retained other temporary employees who were willing to work after the
strike and since it was willing to bring Maynard through the picket
line on August 14 for work despite the fact that its records stated he
was terminated on August 12, we conclude that the Respondent would
have continued to employ Maynard, like the other temporary employ-
ees, had he not joined in the strike .3 Also, contrary to the finding of the
Trial Examiner, the record does not reveal that Maynard quit on
August 14; rather it shows that he joined the picket line the following
morning as an economic striker. Therefore, we conclude that the chal-
lenge to his ballot should be overruled and that his vote should be
counted.
The Trial Examiner found also that the vote of Raymond Roberts
should not be counted since he signed a statement that "my employ-
ment has been terminated at my own request." We disagree. Roberts
came into the plant on September 16, 1964, to get his final pay at which
time he signed a document which stated : "I hereby request my full
and final pay, my employment has been terminated at my own request."
Roberts testified without contradiction that he was told he "would have
to sign this slip so that the company didn't owe me any more money
before I could get the check." 4 The Respondent testified that the pur-
pose of the form was "to find out who was going to look for work or to
leave the Guyan Machinery Company permanently." The record does
2 The Trial Examiner found that Maynard could not handle any of the jobs the Respond-
ent tried him out on that day. The record, however, reveals that the Respondent thought
he might be able to do the open hearth work.
3 See W. Wilton Wood, Inc., 127 NLRB 1675, 1678.
4 We accept the Trial Examiner's credibility finding in which he discredits Roberts testi-
mony that the slip he signed did not contain the words "my employment has been
terminated at my own request."
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not reveal, however, that any other employees were requested to sign
such a form. As Roberts was required to sign this form before the
Respondent would give him his final pay, we find that the Respondent
has not affirmatively shown by objective evidence that Roberts aban-
doned his interest in his struck job and that the presumption that an
economic striker remains in such status has not been rebutted .r> There-
fore the challenge to his ballot is overruled and his vote should be
counted.
2. The Respondent would include in the unit and count the votes of
nine employees in its resale department located in a separate building
at Stollings, West Virginia, about 12 miles from Phico. In the
Regional Director's Decision and Direction of Election in this case, he
found that the appropriate unit consisted of "all production and main-
tenance employees of the Employer at its Phico, West Virginia, plant
...." At the hearing on the representation petition, the Respondent
agreed to the appropriateness of such a unit by stating that although
it felt that the description of the unit was "extremely vague," if the
Union desires to have a unit of that type the Employer is agreeable to
it." 6 The Union never picketed the Stollings plant and claims that the
votes of the Stollings employees should not be counted.
In the decision on the challenged ballots, the Regional Director
found that there was no evidence in the representation record "relating
in any way to the Employer's Stollings operation" and that "the eligi-
bility to vote of the employees working at Stollings can best be resolved
on the basis of record testimony taken at a hearing."
The Trial Examiner found that the question of whether the Stollings
employees should be included in the unit was still open in spite of the
"Respondent's failure to take a positive position" on the extent of the
unit at the representation hearing, and its failure to appeal the
Regional Director's determination to the Board before the election.
He further found that the only appropriate unit included employees
in both plants although there were factors which tended to support the
appropriateness of the requested unit. We disagree on both counts.
Since the parties agreed on a unit limited to the employees at the
Respondent's Phico plant and the Regional Director found such a unit
to be appropriate, we hold that the Regional Director should have sus-
tained the Union's challenges to the votes of the Stollings employees
and should not have referred the question to the Trial Examiner for
hearing. Moreover , although a unit including the employees at both
6 Pacific Tile and Porcelain Company, 137 NLRB 1358. The Respondent did not present
any evidence indicating that Roberts had accepted permanent employment elsewhere or
that he had abandoned the strike.
Although the resale department was mentioned at the representation hearing, the
Respondent never contended , nor did the Petitioner (Union) request , that the Stollings
employees should be included in the unit.
GUYAN MACHINERY COMPANY 595
plants might be deemed appropriate, we hold that a unit limited to
Phico plant employees is also appropriate under all the circumstances
of this case. Our reasons for so holding include the geographic separa-
tion of the plants, the minimal interchange of employees between the
plants, the separate supervision, the fact that no union requests a more
inclusive unit, and the absence of any bargaining history on a broader
basis.z Therefore, the challenges to the ballots of the Stollings employ-
ees are sustained.
[The Board dismissed the complain, in Case No. 9-CA-3291 and
amended Schedule A by : (a) Deleting the names Freddie E. Maynard
and Raymond Roberts from the column entitled "Challenges sustained,
Do not count ballot" and placing them in the column entitled "Chal-
lenges overruled, Count ballots" ; and (b) deleting the names Lawrence
Amburgey, Raymond Elliott, Hayden Gibson, Orsell May, Leslie May-
nard, Wade Perrine, Johnnie Reggio, Howard Rosky, and Don Wat-
terson from the column entitled "Challenges overruled, Count ballots"
and placing them in the column entitled "Challenges sustained, Do not
count ballots."]
The Black and Decker Manufacturing Company, 147 NLRB 825; Gordon Mills, Inc.,
145 NLRB 771.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
The issues in this case are: (1) Whether Respondent, Guyan Machinery Company,
during an organizing campaign of the Union, Local Union No. 505, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, at its Phico, West Virginia, plant (a) coerced employees by interrogation,
surveillance, threats of reprisal, and grants of benefits, in violation of Section 8(a) (1)
of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq., herein called
the Act, and (b) discharged various employees and refused to reinstate them for union
activity, in violation of Section 8(a)(3) of said Act, and (2) whether or not the dis-
charged employees, other employees who went on strike following the conduct alleged
above, persons replacing said strikers, and other persons were eligible to vote in an
election conducted November 13, 1964, by the Board in Case No. 9-RC-6022. The
issues arise on a complaint issued October 14, 1964,1 with answer of Respondent
thereto admitting jurisdiction but denying the commission of any unfair labor prac-
tices, and an order issued January 6, 1965, by the Board's Regional Director for
Region 9, in Case No. 9-RC-6022, directing a hearing on challenges to ballots at said
election and consolidating said proceeding with the above complaint for hearing on
said issues.
Pursuant to notice, a hearing was held before Trial Examiner Eugene F. Frey at
Logan, West Virginia, on various dates between February 1 and 19, 1965, in which
all parties participated fully through counsel. At the close of the testimony, I
reserved decision on motions of Respondent to dismiss the complaint; the motions
are disposed of by the findings and conclusions in this Decision. At the close of the
case, General Counsel and the Union waived oral argument, but Respondent made
a short closing statement; Respondent and the Union have filed written briefs which
have been carefully considered in preparation of this Decision.
' The complaint issued after Board investigation of a charge filed by the Union on
August 20, 1964.
212-809-66-vol. 155-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From my observation of witnesses on the stand, and on the entire record in the
case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a West Virginia corporation with its principal office and main plant
at Phico, West Virginia, where it is in the business of manufacturing and repairing
mining machinery and related items. In the 12 months preceding the issuance of the
complaint, Respondent had a direct inflow of products in interstate commerce valued
in excess of $50,000. I find that Respondent is, and at all material times mentioned
herein has been, an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act
H. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES 2
A. The organization campaign and representation pioceedings
Sometime in July 1964, certain employees, notably Mary Jane Henry, began to
talk in and out of the plant about affiliation with a union. Some employees sug-
gested District 50, United Mine Workers, herein called the UMW, but others opposed
it.3 Henry suggested the Teamsters, and as a result she contacted the Union through
a union member in another plant late in July and the Union sent authorization cards
to her home on August 4. Thereafter she and her brother-in-law, William K. Henry,
distributed cards among employees and solicited them to sign both inside and outside
the plant, with the help of employees William Ramey, Dana Gillman, Joseph Rice,
Carl D. Murphy, and Dewey Crum. By August 12 a substantial number of employ-
ees had signed cards, which were given to the Union just before the strike.
On Saturday, August 8, 1964, Respondent terminated 11 employees under circum-
stances which will be discussed below One of them, Gillman, at once notified the
Union whose business agent, H. P. Dillon, Jr , met with four of the terminated
employees 4 and others on August 9 at a parking lot on the outskirts of Logan, where
they arranged for a mass meeting of employees on Tuesday, August 11, and also
designated Rice and Gillman to accompany Dillon to the plant early Tuesday to see
President Bernard Shell, Jr. Early on the 11th the three plus a union attorney visited
the plant and asked to speak to Shell, Dillon identified himself by name and as an
agent of the Union. They were advised that Shell was not available, but Dillon was
asked to leave his telephone number.5 Dillon then sent Respondent a telegram,
claiming that the Union represented a majority of its employees, that it had been
unable to reach Shell to discuss "our representation" or the recent discharge of
employees who were members of the Union, iequested Shell to contact Dillon by tele-
gram by 1 p.m that day if he wanted to discuss these matters, and stated that the
Union "hesitates to take economic measures until all other possibilities have been
exhausted." Tne message was telephoned to the plant when the group gave it to the
telegraph office operator, but Shell did not get the written copy until about 2 p.m.
that day. Respondent did not reply to it. That afternoon the Union held a meeting
for employees in a park about 5 miles outside Logan, at which Dillon talked to
employees on both shifts as they were available The workeis talked mainly about
the discharges, and Dillon told them he would try to contact Respondent about that
before noon on August 12 to try to get the discharged workers reinstated, and that if
nothing resulted he felt there was no recourse but to strike. He also said that if the
workers struck, the Union would have to petition the Board for an election within 30
days after the strike started. The employees present agreed to this procedure.
About 11.30 a.m on the 12th, Dillon and the union attorney visited the plant, iden-
tified themselves as agents of the Union, and asked for Shell. After talking to some-
one on the telephone, the receptionist told them that Shell had nothing to discuss with
2 Except as otherwise noted for purpose of resolving credibility, the findings made below
are based on credible, mutually corroborative, or uncontradicted testimony of witnesses
of both sides, both oral and documentary.
3 District 50 had tried unsuccessfully to organize Respondent's old Logan plant In 1958.
4 Mary J Henry, Gillman, Rice, and Murphy
E Shell was actually in the plant, but Assistant Manager Willis L Burdette Jr , sent this
message out to Dillon, and about the same time advised Shell of the visit of the :romp.
GUYAN MACHINERY COMPANY 597
them. The two left the plant and waited in their car on the main highway
near the
plant, where they reported their failure to see Shell to some union adherents, includ-
ing one Newman Skaggs, as they came out of the plant at lunchtime. On a signal
from Skaggs after talking with Dillon, most of the day-shift employees left the plant
and set up a picket line. When the night shift reported about 4:30 p.m., many of them
joined the picket line, so that at that time about 80 or more people were picketing,
including both present workers and those who had been released on the 8th. At the
time of the hearing the strike was still in progress.°
On August 20, 1964, the Union filed a petition with the Board in Case No. 9-RC-
6022 seeking certification as bargaining agent of employees at the Phico plant, with,
certain exclusions. After a hearing on the scope of the unit, the Regional Director
issued his decision on October 16, 1964, finding appropriate the unit agreed on by the
parties in the main, resolving disputes as to unit placement of specific employees, and
directing an election among employees in said unit. At the election of November 13,
1964, the 11 employees discharged on August 8, and two others (William K. Henry
and Margaret Ingram) were allowed to vote subject to challenge by Board agents
because of the pendency of the charges in Case No. 9-CA-3291 that they were ille-
gally discharged. In addition, 84 other ballots were challenged because (1) 28 of
the voters were strikers and not listed by Respondent on the eligibility list of Octo-
ber 15, 1964, (2) 44 were replacements for said strikers whom the Union claimed to,
be ineligible replacements for unfair labor practice strikers, (3) 9 were employed at
the Stollings, West Virginia, operation of Respondent which the Union alleged was
a separate operation whose employees should not be included in the appropriate unit,
and (4) 3 workers (Jeffrey, Wilson, and Grose) were alleged to be in categories prop-
erly excluded from the unit. The disposition of these 97 challenges is one of the
issues before me under the Regional Director's order of January 6, 1965, consolidat-
ing the cases, because the challenged ballots are enough to affect the results of the
election.
B. The August 8 discharges
On Saturday, August 8, 1964, Respondent, without prior warning, notice, or expla-
nation, terminated 11 employees as follows: Mary Jane Henry, Ellen Ann Bradley
(Tabor), and Carl D. Murphy from the electrical department; Eva Thompson, Eliza-
beth T. Johnson, and Arleda Gore from the resistor department; Dewey Crum, Joseph
Rice, and Elmer R. Callaway from the hydraulic department; Dana Gillman from the
machine department; and Ray Lambert from the supply department. These people
were notified of their release shortly before noon, the end of their shift, by their
respective foremen, with the short statement, "Your services are not longer required";
most of them received their final paychecks and checks for their payments into an
employee savings fund at noon or shortly thereafter, although the normal payday
for that week fell on August 10.
The abiupt mass termination of nine employees who had signed up with the Union
within the prior 4 days, as noted hereafter 7 without prior warning and with refusal
at the time to give them any reasons for their terminations, and the absence of non-
union employees from the termination list, are circumstances which the Board has
often considered as cogent support for a prima facie case of discriminatory dis-
charges However, employer union animus and knowledge of the union activity or
adherence of the dischargees is also an essential element. On this point, the record
shows that President Shell preferred not to have a union in his plant, and particularly
preferred not to deal with the Teamsters or its affiliates. However, an employer's dis-
like of a union, however strong, is not illegal; it must be shown that this dislike had a
direct and proximate connection with the discharges at issue Wellington Mill Divi-
sion, West Point Manufacturing Co. v. N.L.R.B., 330 F. 2d 579, 586, 587, (C.A. 4).
Such connection, in turn, normally must be based upon persuasive proof that the
employer knew, or had good reason to believe or suspect, that the dischargees were
engaged in union or other concerted activities.
e In December 1964, long after the complaint was filed herein, the Union again requested
a conference with Respondent to discuss a contract and the strike, but Respondent refused.
7 Mary Jane Henry, Tabor, Murphy, Lambert, Johnson, Crum, Rice, Gillman, and Calla-
way. Arleda Gore and Eva Thompson signed cards at their homes the night of the 8th,
hours after their discharge
8 General Counsel also relies upon testimony of union adherents indicating that from
August 4 onward foremen were constantly walking around their departments and observ-
ing operations, President Shell was noticed walking through the departments during the
week of August 3 "but not smiling much," and on August the 8th he toured the plant
making notes in a notebook
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The testimony of President Shell and other officers and supervisors who testified for
Respondent is that they had no knowledge of the Union's campaign or the employees'
activity on its behalf before Respondent's receipt of Dillon's telegram on the late
morning of August 11. Their credibility on this receives strong support from testi-
mony of Mary Jane Henry and other dischargees which indicates that, when they
received and signed union cards and began to distribute them on August 4, they took
pains to do so as secretly and quietly as possible, to avoid possible reprisal from
Respondents Thus, Henry and Tabor signed cards at Henry's home on the 4th, and
Henry thereafter solicited workers mostly outside the plant; inside the plant she
solicited only on lunch hour; and she collected all signed cards at her home. Tabor
solicited only one worker at the plant but the location or circumstances are not shown.
Murphy signed a card on the 4th in another town, and solicited other workers at their
homes, never at the plant. Lambert signed his card at the home of William K. Henry,
and solicited only one worker at the plant. Johnson signed her card for W. K.
Henry August 6 or 7, but the place does not appear. Rice signed his card August 5 at
another plant, and then solicited and signed up six or seven other workers, including
Callaway, at their homes; he talked to a few in the plant, but the locals or circum-
stances do not appear; he signed up Crum in Callaway's car in the plant parking lot
on August 6 or 7, but there is no substantial proof that any supervisor or official of
Respondent observed this. Callaway solicited three or four workers at the plant on
his own time, but the locale or circumstances do not appear. Gillman signed his card
at an unknown location and time in the plant on August 4, at the solicitation of Wil-
liam K. Henry; he then solicited others in the plant, including Mooney on August 5
and 7, and finally signed up Mooney at lunch time on the 7th. It also appears that all
these employees took pains to solicit on their own time when doing it in the plant.lo
The salient aspect of these activities is that they occurred for the most part outside
the plant, and where inside there is no substantial proof from which I can find or infer
that Respondent's officials or supervisors were in position to, or actually did, observe
the activity.11 The only testimony indicating that Respondent may have displayed an
active interest in or spied on the union solicitations concerns three incidents:
(1) Union adherents Pridemore and Gillman testified to the effect that: While
Gillman was actually signing up Mooney at a point behind some lathes and other
equipment about 80 feet from the plant offices, Pridemore was eating lunch with
Night Machine Shop Foreman Keith Garretson in the clerk's office, during which time
Garretson walked into the adjoining foreman's office, and on returning asked Pride-
more, "Did you see that?" and when Pridemore asked, what, Garretson said, "Did
you see Dana given Jim Mooney a card?" to which Pridemore said he did not. Gar-
retson then remarked that some of the "boys" were trying to get a union in the plant,
and Pridemore replied "more power to them." Shortly after, Pridemore went out
and warned Gillman that Garretson had seen him with Mooney. Garretson categori-
cally denied this talk with Pridemore, and testified that he had no knowledge of the
union activity until he reported for work at 4 p.m. on August 12. He admits that on
the previous Tuesday, while eating lunch with Pridemore in the office, as they often
did, he saw Gillman pass the office, and probably commented that he felt Gillman
would eat his lunch near a machine or in the work area, as he always had done in the
old plant, rather than use the separate dining area provided in the new plant. I do
not think this discredits nis denial of the alleged surveillance, in part because the rec-
ord shows that on Friday Gillman was making efforts to keep his union activity
9 Henry got this warning from another employee, Irma Lawson, but her remarks cannot
be charged to Respondent , for there is no proof that she made them as agent of the
employer, or on the basis of remarks or actions of the employer
10 The limitations on their solicitation, and its covert nature, apparently arose from
instructions given by Dillon to one of the Henrys the night of August 4, when he told them
to contact workers at home at night, on the way to and from work, and in the plant only
on lunch hour and rest periods.
11 The circumspect and limited nature of the solicitation is further demonstrated by the
facts that (1) the 9 union adherents who testified at length about their union activities in
the plant could only state that they talked to 10 people specifically about cards, and there
is no proof showing how or where they procured the rest of the 70 or more cards the
Union says it received, and (2) James E Mooney and Frank Pridemore, both union sym-
pathizers, admitted that their first knowledge of the Union and its campaign came when
they signed cards the night of August T. From these and other circumstances noted above,
I can only infer that the majority of the cards weie procured outside the plant It is
also significant that Union Agent Dillon did not take any open part in the campaign,
staying out of sight and advising the employees only by telephone or at points far from
the plant, until August 11.
GUYAN MACHINERY COMPANY 599
secret, both by signing up Pridemore privately in the shower room after work, and
by deliberately taking Mooney behind some machinery 80 feet from the office to have
sign a card, and both the distance and placement of a variety of machinery and
equipment between their location and the office tended to obstruct the view of any-
one in the office and made it unlikely that Garretson, if he had tried to watch, could
have observed Gillman closely enough to discern what he was doing, much less
whether he had a union card in his hand. I also note that neither Mooney nor Pride-
more were subjected to any reprisal after signing cards, although Pridemore, accord-
ing to his story, plainly indicated his union sympathies to Garretson that evening. In
all the circumstances I must conclude that Pridemore's story does not constitute sub-
stantial evidence that Respondent engaged in illegal surveillance or gave that impres-
sion or learned thereby of the union activity. I hereby grant Respondent's motion to
dismiss paragraph 5(d) of the complaint based on this incident.
(2) Rice, a hydraulic department employee whose discharge is in issue, and who
signed a union card away from the plant without proven knowledge of Respondent
and solicited and signed up other workers under circumstances indicating he was try-
ing to hide this activity fiom Respondent, testified that: Early on August 8, the day of
his discharge, Hydraulic Foreman Jack C. Queen asked him privately and quietly
what he knew about the Union "going around here" or "coming in here." Rice
replied he had heard a lot of loose talk about it but paid no attention to it. Queen
asked if he had signed a union card, and Rice said, no. Queen asked if he was going
to sign, and he replied, "I probably will." Rice was terminated at noon as found
above. Queen denied this conversation categorically and testified that in this period,
while he observed his employees constantly in the course of their work, as part of his
duties, he did not try to find out what they discussed, assuming it was their work, and
never heard them talking about the Union, and did not know about its campaign
until the strike began. I credit his testimony as against that of Rice because of (a)
the union solicitors' deliberate and effective attempts to carry on their in-plant union
activity in such manner as to conceal it from management, (b) clear proof that all
supervisors including Queen were especially busy during July and early August in
getting their recently moved departments settled down and back into production
(which militated against the likelihood of their desire or ability to take special efforts
to watch for and inquire about union activities), and (c) Rice's placement of this
interrogation by Queen on the very morning of his termination, of which he had no
advance warning, which strongly suggests the fabrication of the whole incident, both
in timing and wording, with the palpable design to create significant evidence of ille-
gal employer interest in the concerted activity as well as knowledge of Rice's own
union activity and sympathies, immediately before the discharge, and thus set up a
classic instance of discriminatory discharge to overcome the potent proof adduced
by Respondent to show the economic basis of the layoff and choice of Rice and others
for termination.
(3) Crum, discharged the same day as Rice and whose union adherence and activ-
ity was similarly cloaked from employer knowledge, testified that: "On August 7, the
day after be signed his card outside the plant, Assistant Hydraulic Foreman Jack
Brewster asked him while at work if he had heard about a union organizing in the
plant. Crum replied he had heard a little about it Brewster asked if he knew where
the talk had started, and Crum said he did not know. Brewster asked if he thought
it might have started among the night-shift machinists, and Crum said it could have.
Brewster categorically denied this conversation, and testified that he knew nothing
of the union campaign before the strike started. Crum further testified that later the
same day, while Brewster was nearby, another worker, one Moraski, called Crum a
"union man ," but Crum admits he was not sure whether Brewster heard this, although
he says generally that group leader James Taylor was near enough for that purpose.12
In this instance, I credit Crum's testimony of the talk with Brewster because, as there
was no inquiry into Cruin's union activities or adherence (which occurred outside the
plant and were minimal within it), and Brewster was an assistant under Queen work-
ing on night shift, the same considerations which prevailed in my resolution of the
Rice-Queen incident do not obtain here, and in addition the mention of the night
machinists by Brewster appears credibly to refer to recent open concerted discussions
of those workers with management which will be considered shortly. I do not credit
Crum's statement of Moraski's remark about him, because (a) of Brewster' s denial
of knowledge of the union activity, (b) it is not clear from Crum's vague testimony
that either Brewster or Taylor were definitely in a position to hear the remark, and
(c) there is no proof that either supervisor did anything about it, and on the whole
"The Regional Director found in his Decision and Direction of Election that Taylor
was a supervisor within the meaning of the Act.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this testimony appears to be a palpable effort to supply the essential element of knowl-
edge of Crum's union adherence, as support for the claim of discriminatory layoff.
Considered by itself, it would seem that Brewster's interrogation of Crum was of the
type normally calculated to coerce employees.
However, in making the above findings, I have also considered carefully cogent
proof indicating that Respondent had for years been aware of the past union activity
and sympathies of many of its employees, their continual talk about unionization, and
even recent concerted activities of some, but had done nothing about it. The record
shows that: In 1958, the UMW tried to organize the plant but without success, and a
strike of employees occurred but was finally abandoned late in 1958. Respondent
thereafter took no reprisals against strikers and others prominent in the UMW effort,
but to the contrary assured all workers that their union activities would not be held
against them. In addition, the workers received a general wage raise January 1, 1959,
in accordance with Respondent's practice of matching a general wage raise just
given to workers in the mining industry, and the workers' benefits were improved in
other ways. Supervisors were specifically instructed to avoid any discrimination or
appearance of it between strikers and nonstrikers. Workers who had been UMW
officers or just active in the strike were kept at work, and the UMW president and at
least one other union adherent were promoted later to supervisor.13 Thereafter,
supervisors were aware that many other employees, as hired, had worked in unionized
plants. From 1958 onward there was sporadic talk openly among employees about
organizing or joining unions, and the advantages thereof, but Respondent did nothing
about it which would indicate a significant union animus. In April or May 1964, talk
of forming an inside union was revived, particularly among workers on the machine
shop night shift. Sometime in May Machine Shop Foreman Glenn R. White talked to
these men in a group to find out why they were dissatisfied. There was open discus-
sion of the advantages and disadvantages of a union contract. When Gillman
explained why he favored a contract, White commented that "you sound like a dyed-
in-the-wool union man," and then added that many of Gillman's ideas sounded good
to him, that some changes were needed in the plant (they were still in the old plant),
and he hoped the men would get them. He also commented that most employees
there had never worked elsewhere, so they did not know how good they had it with
Respondent. He also opined that if a union came into the plant "there would be a lot
of changes in the company." On a Friday in mid-June, Respondent circulated a ques-
tionnaire among all employees, asking for their suggestions.14 As some machinists
had filled out such forms in the past without result, the machinist group this time
merely returned them to Plant Manager Burdette with a request for a personal meet-
ing. President Shell then had a meeting with this group and other employees who
desired to express grievances, at which he asked each man individually about his com-
plaints. While most of them aired individual grievances, Gillman was most out-
spoken in requesting raises and other benefits for all. Shell told the men they should
take these requests to Personnel Manager Otis E. Jenkins, but Gillman replied that
they had already talked to him, but without result. While there is no proof that
Respondent took any specific action to meet these complaints, neither is there any
proof that the conferees talked about a union or a contract, or that Shell made any
antiunion remarks or tried to bargain with them so as to dissuade them from organiz-
ing or joining a union. The nature and frequency of employee discussion about
unions over the years including the concerted action early in 1964, all without
employer retaliation, shows that Respondent was aware of and took no more notice
of such discussions than it did of employees' casual talks on other topics, and in light
of this tolerant attitude I consider that the isolated interrogation of Crum by Brew-
ster was not a deliberate inquiry into employee concerted activities from hidden anti-
union motives, but merely a casual personal inquiry by a supervisor arising from his
personal interest in employees' welfare, and hence in all the circumstances not calcu-
lated to be coercive. I therefore find that Brewster's interrogation was not violative
of the Act, and is not substantial indication of improper employer interest or inquiry
into the workers' conceited activities. I hereby grant Respondent's motion to dismiss
paragraph 5(a) of the complaint dealing with this incident.
Besides the UMW president and secretary (not identified), the strikers had included
Murphy, UMW Treasurer Dewey Crum, and Charles M. Ferguson ; the latter was later
promoted to assistant hydraulic foreman under Foreman Queen, a position he still held
at the hearing.
"Respondent had at times circulated similar questionnaires in the past since 1939 to
get ideas from the workers. The 1964 questionnaire requested that the worker filling it
out do not sign it.
GUYAN MACHINERY COMPANY 60 1
I find no credible proof of employer surveillance , or knowledge of union activity
before August 12, in the following additional incidents
(1) Testimony of Mary Jane Henry, the main union organizer , that for several
weeks before the layoff she had seen Foreman Brewster watching employees, while
eating their lunch, covertly from behind wire screens covering some racks, and at
times he had been sitting behind a tree near employees when they ate lunch on the
river bank near the plant. Brewster categorically denied such activity, and in the
absence of more specific testimony regarding employees' lunch habits, what employ-
ees were in the groups, or anything indicating Brewster's presence in the places cited
was unusual, or that he was in position to hear what employees talked about, Henry's
testimony is insubstantial and not credited.
(2) Testimony of Mary Jane Henry that several days before August 8, she saw
Foremen Odis Adams and Chambers talking, and overheard one say, "Just as soon
as that outfit gets in here, we are ruined." Both supervisors categorically denied
the remark by either, and since Henry admitted she did not know what the speaker
referred to, I discredit her whole testimony on it as insubstantial.
(3) Testimony of Carl D. Murphy that on August 7 he heard employee Dick
Thompson tell Supply Foremen Jeffrey that the "boys" were trying to get a union in
the plant. Both Thompson and Jeffrey deny the incident categorically, and since
there was no specific mention of the Teamsters, and no apparent reply from Jeffrey, I
credit their denials and , in any event, must find the single remark insufficient to sup-
port a finding of employer knowledge, belief, or suspicion of activity by the Union.
(4) William K. Henry testified that on August 7 he heard Foremen Adams and
Garretson talking, that Adams asked Garretson if he knew the men were signing
union cards, and Garretson replied he did not know. Garretson deified the incident
categorically , and Adams categorically denied any knowledge of the activity of the
Union before the strike. These denials, plus the clearly covert nature of the union
solicitation , makes it unlikely that either foreman knew of it, and I therefore credit
the denials, and discredit Henry.
In sum, I am convinced and find from all pertinent evidence on this subject that
through the years from 1958 up to June 1964, Respondent was well aware of employ-
ees' union talk and sympathies but did nothing illegal about them, even when they
again crystallized in May and June 1964 into concerted presentation of grievances;
and when some employees began an organizing campaign for the Union in August in a
deliberately quiet and undercover manner, Respondent did not receive any actual
or even indirect knowledge of the new activity until August 11.
General Counsel recognizes this weakness in his case when he argues that company
knowledge should be inferred from the small size of the plant (about 110 employ-
ees).15 While the small size is one circumstance from which employer knowledge
of union activity can be inferred,it this inference is permissible only if the union activ-
ity in a plant is extensive and open, with no attempt at concealment.17 Where, as
here, that activity is minimal, limited, or deliberately concealed, the inference is not
16 He must rely on this inference particularly in the cases of Arleda Gore and Eva
Thompson who testified they did not sign union cards until the evening of August 8,
hours after their terminations , at their respective homes . There is no proof that Gore had
previously engaged in any union activity at the plant , in fact she admitted she did not
know about the Union until she signed the card While Thompson had talked previously
to .Mary Jane Henry about the Union, and also to Charles Clark, a group leader and
supervisor , about unionization , there is no proof as to where or how often she talked to
Clark, or what she said, so that I cannot infer that she said anything to disclose she
favored the Union, or might join it later, which might be chargeable to Respondent's
knowledge ; to the contrary, it is more inferable that she was at least neutral about it, if
not antiunion , until she actually signed up after her termination.
10 The Great Atlantic and Pacific Tea Co., Inc., 149 NLRB 94 ( 6 workers ) ; Williams-
port Newcrete Products Co., Inc., 145 NLRB 1739, 1744 (16 workers) ; Estate of Nathan
Gladstone d/b/a Fassets Bakery, 147 NLRB 515 ( about 40 employees ) ; Square Binding
and Ruling Co., Inc., 146 NLRB 206 (50 employees) ; Admiral Linen Service, 138 NLRB
361, 365 (88 employees) ; Tru-Line Metal Products Company, et at., 138 NLRB 964, 966
(13 employees per shift ). But these and other cases also appear to indicate that the basis
for the inference decreases as the size of the work force increases , and division of a plant
into departments becomes more pronounced. See Laboratory Equipment Corporation,
et al., 146 NLRB 1247, 1252 ( 200 employees ) ; Douglas and Lomason Company , 151 NLRB
616 (TXD) ( 279 employees).
17 Crane Company , 145 NRB 587 , 588; Malone Knitting Company, 152 NLRB 643.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenable.ls This reduces General Counsel's possible contention only to the weak
inference of knowledge from the admitted fact that Respondent was aware of the
concerted activity of the night machinists, and possibly other workers 19 who had
conferred with Shell in June about grievances. This can support an inference that
Respondent believed or suspected that the machinists at least, with Gillman as their
spokesman, favored some sort of union organization, though not necessarily the
Teamsters or the Union. This brings me to consideration of Respondent's defense to
see whether the proof thereof rebuts these inferences.
Respondent contends that the layoff of 11 employees on August 8 was a normal
part of its efficiency and modernization program started about 1962 and completed
with the move to the new plant in June, July, and August, 1964; as to Margaret Ingram
and William K. Henry, it contends that they were not discharged but quit work to join
the strike of the 12th The record clearly shows and I find 20 that: Sometime in 1962
Respondent concluded that its 50-year old plant in Logan had become antiquated and
so inefficient that a drastic change was necessary. Plant efficiency surveys had indi-
cated substantial overall waste due to lack of working space, poor layout of depart-
ments, and machines therein, in relation to each other and the supply departments
(which were scattered within and outside the old building); this caused great waste
of manhours in moving material and equipment by hand in and out of departments
for use and repair; the survey also showed inadequate heating, lighting, and sanitary
conditions, and inadequate and inefficient facilities for receiving and shipping mate-
rials and products In 1962 Respondent began to plan a new building and plant
layout, based in large part on suggestions from its department foremen. The Phico
site was chosen the same year, and planning and design of plant layout continued
through that year and 1963. In May 1963 all employees were told about the new
plant and its purpose through the company newspaper. Actual construction began
early in 1964, and was completed in May, when advance crews of workers began to
install electrical power lures and other accessories for the machines. The five produc-
tion departments were moved in succession, starting June 1, with the move of the
machine department being completed August 8. In the April 1964 issue of the com-
pany newspaper, employee's questions about the new plant were answered with a
sketch showing the location of the departments, offices, and other facilities.
In the early part of 1964, business had slacked off due largely to a drop in calls from
mining concerns for machinery and machine repair, and in the months of May and
June all departments had cut back from an 8-hour to a 7-hour day, with a few fore-
men keeping their forces at work making components for inventory, and all assign-
ing workers to cleaning, painting, and lubricating machines in preparation for the
move, rather than laying them off. While this was in accord with usual company
policy, there were still numerous complaints from workers about the reduced hours,
with some threatening to look elsewhere for work. As the new plant had been
planned in part to consolidate some departments and operations, thus eliminating
some jobs, Assistant Plant Manager Burdette in mid-May suggested to President Shell
that the work force should be reduced before the move, partly because of the reduced
workload and workday, arguing that a reduction then would give each department
some experience in working with fewer people. Shell rejected the suggestion on the
ground that temporary workers must be hired to assist in the move, and Respondent
could well use for that work some workers who might otherwise be laid off, and that
a layoff of 10 or 12 permanent workers could easily be handled at the same time that
temporary employees were terminated after the move. In April and May, as the
plant neared completion, Shell had individual discussions with department foremen
about the effect of the move on their departments. indicating that the setup of the new
plant would be more efficient, require fewer workers, and thus eliminate one or more
jobs in their departments, and he told them to be thinking about and choose the
See N.L.R.B. v. Ace Comb Co., et al., 342 F. 2d,841, 848 (C.A. 8) ; Soerene Motor
Company, 106 NLRB 652, 654, 657; Electric Motors and Specialties, Inc., 149 NLRB 1432
(TXD) (discharge of Parker) ; Douglas & Lomason Company, supra.
19 I credit the admission of Dewey Crum that before the meeting, other departments
were notified by management that they could send representatives to talk to Shell at the
same time he saw the machinists. However, the record does not clearly show what
workers from other departments, if any, actually attended that meeting.
2D My findings as to the plant move and reasons therefor are based on credible testimony
of Respondent's witnesses, as corroborated in large part by admissions of most witnesses
of General Counsel.
GUYAN MACHINERY COMPANY 603
employees who were least desirable, in the sense that they were least productive for
the pay they received, and whose termination would least affect the work of their
departments. In the week of August 3, with four departments fully moved in and
the machine department move almost finished, Shell toured the whole plant daily
to observe the setup and operations, and made notes on it, and on August 7 he made a
last round for the same purpose, during which he decided how many were to be laid
off in each department. He told each foreman in turn how many to let go (leaving the
choice to the foreman) as follows: hydraulics department, three workers; electrical
department, three workers; resistance department, three workers; machine depart-
ment , two workers (Foreman White had selected three to go if necessary); and sup-
ply department, one worker. At this time, Resistance Department Foreman Harry
Slater told Shell he had chosen Eva Thompson to go because of her production, and
Electrical Department Foreman Chambers named Tabor, Mary Jane Henry, and
Murphy. In these discussions, Shell discovered that some foremen were not enthusi-
astic about the reduction, so after making a last check around the plant early on the
8th, he convened the foremen in his office about 11 a.m., asked if they had made their
selections, and when they said they had, he told them to make the layoff at noon, and
give the names of those they had selected to Office Manager W. H. Jones, so that Jones
could prepare final pay and savings checks by noon. He also told them that, in advis-
ing each employee of termination, the foreman should keep the statement brief and
make no explanation, to say no more than "Your services are no longer required," in
order to avoid any discussions or arguments about the termination. When the fore-
men told Shell they had made their choice, they mentioned the names of those they
had chosen, and gave brief reasons for their choices. When Machine Shop Foreman
White said he had chosen three, Shell told him he only had to release one, and White
mentioned Gillman. Shell made no comments on the names or reasons, except to tell
some that he was not interested in the names.
The foremen returned to their departments and followed Shell's orders in notifying
workers of their layoff, as found above When asked by some workers why they were
terminated they refused to give reasons or discuss it. However, when Gillman pressed
Foreman White for the reason, White would only add that he personally regretted his
termination. When Murphy asked Electrical Foreman Earl Chambers if the dis-
charge was because of his work, Chambers merely said, no. When Arleda Gore got
her notice from Resistor Foreman Harry Slater, he said he was "sorry to do this, but
you are no longer working for the company," and when she asked, why, he said he
could not explain it right then. Shortly after Thompson was discharged, she asked
Assistant Manager Willis L. Burdette for the reason, and he said he would check on
it and let her know, and later she received a letter from Respondent stating her ter-
mination was "due to overhead and expense." Lambert learned of his termination
when he asked Supply Foreman James R. Jeffrey just before noon if he could work
the evening shift the following Monday, because he had an appointment at the nearby
Kaiser Aluminum plant on Monday. Jeffrey replied that he could not report as
requested, because his services were no longer required. Lambert replied that was
O.K., repeating that he had an appointment at the Kaiser plant Monday. Jeffrey told
him that he could work as long as he wanted Saturday, but Lambert declined. As
Lambert prepared to check out his personal effects, Jeffrey asked whether, since Lam-
bert was applying for work at Kaiser, he would object if Jeffrey listed him in plant
records as resigning, rather than being discharged, and Lambert said that was all right.
At the outset, this sequence of events contains some cogent facts which throw light
on certain circumstances relied on by General Counsel. He asks the Board to infer
unusual and improper interest in employee activity, or surveillance thereof, from the
constant touring and observation of the departments by foremen and similar observa-
tion of the whole plant by Shell in the week of August 3. The record clearly shows
that all departments were fully moved, except the machine shop with some of its heavy
equipment, in that week, and management personnel from the top down were very
busy in getting machinery hooked up and into production, which obviously required
constant presence of foremen in their departments for observation and supervision.
President Shell, as general manager of the plant responsible for overall production,
was also naturally present daily to see that all departments were making progress
toward production, and in addition he was obviously making his final check of layout
and actual operation in the new plant to crystallize his decision on the number of
workers to be laid off as part of the economy plan. This clearly explains the fore-
mens' and Shell's presence and activities in the plant that week and, lacking any sub-
stantial proof that these officials were watching particular union adherents in that
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, I conclude that their presence and close supervision and observation of the
plant during its shakedown into production was not unusual but to be expected, and
not indicative of any improper or discriminatory motive 21
In addition, the record shows that it had never been company policy to give employ-
ees advance notice of termination or layoff for any reason. As Chambers testified
credibly, this was customary in the business world for the obvious reason that if
workers received any inkling of specific or general terminations to come, the employer
would be faced with a natural slowdown in production, or even quitting, by those who
knew or suspected they might be released, and thus might lose the services of good
workers not marked for termination. Furthermore, the wisdom of Shell's admoni-
tion to foremen to avoid any discussion or argument in notifying workers of release
is shown by the attempts of several workers to draw their foremen into a discussion
and argument about the reasons for their layoff. In light of these facts, I conclude that
the abrupt termination of 11 workers, even though all union adherents, without prior
warning loses any otherwise discriminatory significance.
While the choice of none but union adherents for layoff is normally a significant
factor in itself, it is well settled that neither union membership, sympathy, or activity,
even if known to an employer, will insulate an employee against termination for cause
or insure his retention for employment (Shakespeare Company, Shakespeare Products
Company, 152 NLRB 609); however, the employer must adduce proof showing the
existence of valid grounds for termination, and that the termination was motivated
solely by such grounds, sufficient to rebut any testimony for the contrary. This leads
to Respondent's reasons for selecting the 11 union adherents for layoff.
At the outset, the effect of operations in the new plant overall should be noted,
since Respondent claims this had a definite bearing on the terminations. The record
shows that, shortly after production began at Phico in July and early August, the
efficiency of the new plant and its layout became apparent. Aside from the fact that
it had 50 percent more space than the old one, which afforded both more present
capacity as well as room for expansion to handle any possible increase in business
volume, it had better lighting, heating, and sanitary facilities, and there were evident
savings in man-hours from layout of all departments on one floor, in closer proximity
to each other, with easier and quicker mechanical handling of materials and equip-
ment received for repair, and products and machinery shipped out from one cen-
tralized receiving-shipping-supply area. There was faster supply of materials to
departments and movement of units for regular repair between departments without
undue delay of production and servicing, and more space and proper layout of
machines and aisles for quicker handling of materials and dismantling and reassembly
of units being repaired.
1. Electrical department terminations
When Electrical Foreman Chambers was alerted about the coming reduction in
force of three in his department, he made up his mind sometime in July that Mary
Jane Henry and Ellen Ann (Bradley) Tabor could be released; he had doubts only
about the release of Carl D. Murphy. After Henry was hired in February 1962, she
worked for about a year in the resistor department, and in June 1963 transferred to
electrical department where she and Tabor worked, with one Fred Elkins, a learner,
up to discharge on winding of small armature coils for electric motors. She and
Tabor were considered coilmakers' helpers, as they handwound and assembled the
small coils after the work was set up for them by William Ramey, a graded employee
of more experience who, with one Jack Butcher, mainly handled the winding and
assembly of field coils, which were heavier units using thicker wire and were harder
to handle; both men, of course, could handle the lighter armature work and at times
did so. As the bulk of the department work involved the heavier coils and motors,
which women could not handle, the work which Henry and Tabor could do was
limited 22 Chambers chose Henry for layoff because her work in past months had
been poor, and he could not keep the women generally busy because most of the work
involved heavier components and equipment, which could only be done by men. For
the lighter work, he still had Ramey and Butcher, experienced men, and was training
21 These circumstances further impel me to credit testimony of all foremen and assistant
foremen who testified to the effect that they had no knowledge of the union activity until
the strike started and that prior to that they had been busy getting departments into
production and had no time to watch employees other than in their regular work, or to
overhear what they may have talked about off the work floor.
=As early as 1962, Respondent had been cautioned by the State Labor Commission
about the safety law prohibiting use of women to lift items over 40 pounds in weight, and
Chambers and all other foremen knew of this requirement.
GUYAN MACHINERY COMPANY 605
Elkins (who could also be used for heavier work, if needed). As of July 28,
Chambers still regarded Henry as a learner in the class of coilmaker helper, training
on armature coils. When he had rated her in January and on April 23, 1964, for
pay raise purposes, at the request of the personnel department,23 he indicated that
she was interested in her work, and always sought work and new duties, on the basis
of which she received a raise May 1; her only deficiency was the need of more experi-
ence. However, in the next 3 months, he found that she needed more supervision,
with occasional followup of her work, and when he tried her out on setup work,
involving use of some machines, with the idea that she would gradually take over
some of Ramey's work, she became pessimistic, indicating she could not learn to do
his work. She continued to show this lack of confidence and even dislike for that
work, when he tried her on it in the last few days before her discharge, although on
the morning of discharge she showed him how she and Tabor had mastered one part
of the operation, for which he praised her. In this period, Ramey had complained
about the work of both Henry and Tabor, asking for a man to do that work. After
Chambers reported these facts to management on July 28,24 another raise for Henry
was denied. In the week of August 3 while trying to encourage Henry to learn the
setup work, Chambers had told her he had put her in for a raise, so that she would get
the same rate and do the same work as Ramey, but she still expressed doubt about
her ability to do it. While Chambers had always considered Henry a promising
worker, and her work had never been criticized in the past, the above facts, particu-
larly her recent attitude and lack of confidence in learning more important and better
paying work, led him to choose her for layoff.
Tabor was a comparatively new worker (hired in April 1963) who had wound
small armature coils like Henry, and at times had helped Henry in her work when
her own assignments ran out. Chambers chose her because of lack of normal progress
and improvement in her work. When first appraising her performance as a learner
for pay purposes in August 1963, he noted that she was dissatisfied with work in his
department, did average work, and had asked for work in the resistor department or
the office. In the next few months, Chambers talked to her in attempts to increase
her interest in her work. She improved somewhat, but her performance was still
only average because of her lack of interest, which he reported to management in
her January 1964 rating. Up to her next rating in April, she still expressed dissatisfac-
tion with her work, and performance did not improve. Chambers had taught her at
the outset to wind a certain type of armature, but she never developed enough skill
or speed at that work to cut her time below 4 hours for winding one unit, which was
excessive . He tried her out at other types of coil work, but with little success. He
observed that she also had a habit of leaving her work area to talk to others, which
cut her own production. When noting these deficiencies in her rating of April 20,
1964, Chambers talked to Burdette about them, and on April 28 Burdette suggested
a pep talk to her, in an effort to get her to improve so that she could achieve a grade
as a winder, but said that if she did not improve, she should be discharged. Shell
approved this recommendation, but suggested that any discharge be delayed until
after the move. In late April or early May, Chambers talked to her about leaving her
work station and talking to others, and she improved somewhat, but her total per-
formance did not. Chambers finally concluded he could operate without Tabor be-
cause he already had a man, Ronald Cole, winding the same type armature, but faster
and doing a more finished job; and Cole was already in a higher paid classification
than Tabor, as he also worked on heavier armatures in both A.C. and D.C. motors.
In addition , Tabor's coil winding was often performed by Ramey and Butcher, and
after her layoff these employees continued to perform both Henry's and Tabor's work,
21 Under plant practice since about 1959 , learners were graded by foremen at the request
of the personnel department at the end of the first 30 days of their 90 -day probation
period, for retention purposes ; if retained, foremen were required to grade them In like
manner, for pay purposes , at 3-month Intervals thereafter until they were placed in a
permanent grade classification . After achieving a grade, the rating schedule called for
a detailed rating every 6 months for pay raise purposes . During the learner stage, per-
sonnel department did not always adhere to a rigid 3-month interval for rating , so that
some foremen ratings might be requested after 4 months or so. In this period , also, the
foremen rated learners only by general answers to questions on the back of the rating
form. When rating a graded worker, he was required to mark the worker In any one of
eight graded ratings (from R-1 as the best rating , to R-8 as the worst ) on each of six
factors: quality of work, quantity of work, adaptability , job knowledge, dependability, and
general attitude.
'4 Although personnel had asked him to rate her as a regular worker in the coilmaker
classification on July 28 , Chambers still viewed her as a learner at that time , considering
her weaker performance and poor attitude.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which did not hamper their regular work since neither was working full time on his
own field coil work. In addition, Chambers had available Fred Elkins, who before
the layoffs had been transferred to field coil work a learner, so that he could work up
to grade in field coils, while the more experienced men divided their time between that
and armature coils. These shifts accorded with Ramey's prior suggestion in July
about giving armature coil work to a man. Up to the time of hearing Chambers had
not found it necessary to hire anyone to handle that work separately. These facts per-
suade me that Chambers chose Henry and Tabor for layoff only because of their lack
of improvement, generally deficient attitude and lack of adaptability to other work,
and because he had more experienced male workers who could handle their work
more efficiently 25 and in my opinion Respondent has thereby adduced cogent proof
sufficient to rebut the weak case of illegal discharge produced by General Counsel,
particularly since the union activities of both were so covert as to warrant only
suspicion or speculation that Respondent may have suspected one or both of union
activity, and selected them for that reason.
Carl D. Murphy had been hired in 1956, and had worked through various unskilled
jobs up to motor repairman on the day shift. At his termination he was one of four
doing that work in the electrical department. In rating him for merit pay in Novem-
ber 1963 and May 1964, Chambers gave him top ratings in three categories of per-
formance and better than average in others, and on the basis of his willingness to
improve himself and adaptability, he reported that with more experience he would
develop into a good man for emergency troubleshooting at the mines, a type of work
which Chambers and two more experienced repairmen (Berry and Pridemore) had
been handling. Since Chambers in these ratings had placed Murphy almost (but not
quite) on a par in performance with Berry and Pridemore and a third repairman
(Shuler), Chambers considered him a good promising workman; however, he still
rated him as a learner on motor work, with limited experience, such that he could
not yet regularly be left to work alone on weekends or at night on rush or overtime
repair jobs, but bad to work with either Chambers, Berry, or Pridemore.26 On these
close facts, Chambers had trouble making the choice among the four, but finally
selected Murphy as the repairman with least experience in motor service and mainte-
nance.27 Viewing Murphy on the same comparative basis as the employee least
necessary for the regular work of the department , Chambers had also chosen him
about July 1 to team up with another employee to work at the new plant on mechani-
cal installation of electrical conduit , outlet, and control boxes , and stringing of wiring
in conduit, in preparation for electrical hookup of machines as they were moved into
place. The team worked under direct and close supervision of the plant superin-
tendent and chief electrician, finishing up on the day of Murphy's discharge. While
Murphy performed this mechanical work, other employees, including one John
Harden, from the electrical department were assigned to hook up the machines, in
the process altering them from 220-volt to 440-volt power used in the new plant.
These facts afford very persuasive proof that Chambers made a difficult but legitimate
choice of Murphy on the basis of comparative performance and experience, which
effectively rebuts the case of General Counsel.28
"For the same reasons, he apparently did not consider transferring Henry and Tabor
to other categories of work, such as stripping and other small assembly work, which jobs
were not then operated full time.
as At most, he had been placed in charge of the night shift of the motor repair section,
working with one helper, for a week in 1964 while Pridemore was on vacation.
27 Chamber's rating comments on Berry and Pridemore were somewhat more favorable
than on Murphy, since he told management that Berry would make a good group leader,
after more technical study, and Pridemore was already acting as a night-shift group
leader ; he made no such recommendation for Murphy. Both Berry and Pridemore were
graded as "class B," while Murphy was "class C," in electrical service and maintenance
work. Shuler had a separate classification of class D motor repairman, and had more
experience in this work than Murphy.
28 This conclusion is not weakened by Respondent's retention of Harden, a new worker,
after Murphy's discharge and the inception of the strike, and its failure to try to get
Murphy back to work. On this point Chambers testified credibly, and I find that: Harden
was hired as a temporary worker about July 1 to do maintenance work at Phico in con-
nection with the move. Before the strike, management would not let Chambers put him
on as a permanent employee, because regular work in the department was slack. However,
after the strike reduced Chamber's work force from 17 on August 11 to 2 or 3 people,
Chambers was allowed to make Harden a regular employee because of his past experience
on motor repair, as a partial replacement for the experienced Butcher, Berry, Cole, and
GUYAN MACHINERY COMPANY 607
The economic purpose and justification for the above layoffs is further shown by
the following facts in the record: In the period just before the move the electrical
department had been operating on a 7-hour day, due to lack of outside work. How-
ever, Chambers did not keep his force at work making components for inventory, like
other departments, as he had done in past slack periods; instead of reducing his work
force of 20 at that time, he kept them busy cleaning and lubricating machinery and
otherwise preparing for the move, and during the actual move in the July 1-1S
period he laid off the women for only 21/2 days. Just before the move got underway,
he returned the nien to an 8-hour day to handle the extra work of altering motors and
machines in all departments to run on the 440-volt power supply at Phico. The dis-
charges of August 8 reduced his work force to 17, but the strike cut it at once to 3.
After unsuccessful attempts to get back some of his experienced workers, as found
above, Chambers was compelled to hire five inexperienced replacements before the
election, and one after it. At the time of hearing all of these were still classed as
learners. Working in the new setup and with his workload still below normal,
Chambers found that as late as February 1965 he could handle the department's
work with a force of only 10 employees.
2. Resistor department terminations
In the early months of 1964, the resistor department had been experiencing its
greatest lack of work since 1962, and in accordance with company policy, Foreman
Harry Slater put his work force of 19 on a 7-hour day, rather than lay off workers,
keeping them busy making resistors for stock, cleaning machinery, and doing other
odd jobs in preparation for the move. Notwithstanding, employees complained in
April and May about the reduced workweek and some talked about getting full-time
work elsewhere. In May Slater talked to Shell about the complaints and how to avoid
possible loss of good workers. Slater suggested a layoff and return to an 8-hour day at
that time, but Shell told him about the plans for a layoff after the plant move, and
said Slater should not lay off people then because all would be needed in connection
with the move, that Respondent was also hiring temporary employees to help with
that, and that Slater could send some regular workers to the new plant to prepare for
the move. Slater sent one man to Phico for that work. During the move of July 1
through 10, Slater laid off some of the women for a week, as there was no production
work for them during the move.
Slater laid off Eva Thompson, Elizabeth T. Johnson, and Arleda Gore on the 8th.
Thompson, a woman in her 60's, had worked for Respondent since 1944. At termi-
nation she was classified as a coil seat welder which job required her to weld a V2-inch
seam on a small coil. While she was the only worker in that specific classification,
the department at Phico had several other day-shift workers, including Albert Dona-
hue, who also did light welding. Slater selected Thompson for layoff because (1) in
the recent past he had trouble in supervising her work, in that she often failed to
follow instructions, which required constant followup on her work, and was slow
to take suggestions; (2) her production was less than other workers; and (3) her pay
was over the maximum for that job. Since 1962, Slater had rated her for pay pur-
poses as only average in the factors noted on the rating sheet, finding that while she
knew how to do her specific job, she did only the work assigned to her and showed
no desire or ability to improve. While she showed some improvement in 1963, this
trait continued into 1964, when he noted the necessity of continued followup on her
work, and observed that her rate of production on both regular work and rush jobs
was slowing down despite several warnings about it, in which he told her he might
have to release her if her attitude and unit-time did not improve. He did not lay her
off on these occasions because after each warning her work did improve for a short
time. During her three ratings for pay in 1962 through July 16, 1964, she did not
receive any merit pay raises, because since 1962 she had been getting higher pay than
the maximum pay listed for her job. After her layoff Albert Donahue, classified as
assembler-welder, took over her work in addition to his own, and was far more
efficient, as he did her job in two-thirds the time she took, and was also a lower paid
employee. Donahue had been a janitor in the old plant, but was transferred to the
assembler-welder job at Phico.
Sam Garrett, who went on strike. Chambers tried to recall Garrett and Berry without
success, and could not reach Butcher. He admits he could have used Murphy when the
strike started, but did not try to recall him personally, as he wanted the more experienced
men. When Respondent formally recalled Murphy in October he did not return. As the
strike went on, Chambers was compelled to hire some inexperienced replacements, all as
learners.
608 DECLSIONS OF NATIONAL LABOR RELATIONS BOARD
There is no proof that Thompson took any part in the union activities, except to
talk about it to other workers, like Mary Jane Henry and group leader Charles Clark,
when they broached the subject. The substance of the conversations does not appear,
hence I cannot infer that Respondent learned through Clark or otherwise that
Thompson was a union adherent; to the contrary, the only reasonable inference is that
she was at most noncommittal about it until she signed a union card about 10 p.m. on
August 8, after her discharge, at her home, at the request of Mary Jane Henry.
There is no proof that Respondent knew anything about this until Thompson appeared
on the picket line during the strike. Even if I drew a very weak inference that
Respondent suspected her of union sympathy, from the mere fact that she may have
talked to Clark on the subject of the Union on one or more unidentified occasions,
the meager case of discrimination which might be constructed from this is more
than adequately met by the cogent facts noted above that the mass reduction in force
was part and parcel of the efficiency and modernization program which included the
move to Phico, and that Thompson was chosen for layoff only because she was
slowing down, becoming less amenable to supervision, and for these reasons and her
high pay it was not economical for Respondent to continue to keep her when her work
could be done as well or better by another worker at less cost.
Elizabeth T. Johnson began to work for Respondent in 1950, and throughout her
employment built small resistors in that department. Just before her layoff, Slater
also had Violet Shell doing the same work, and he chose Johnson for layoff and
retained Shell as the better worker, because within the past year Slater had been
compelled to caution Johnson several times about slowing down in her work, and
also warned her that she might be discharged While his ratings of Johnson and
Shell were about the same in most factors from 1962 through July 1964, Johnson
had been somewhat less impressive in her attitude toward her work and other workers,
and willingness to cooperate with supervision; her ability to cooperate deteriorated
in 1964 in that she was more reluctant to take suggestions and obey orders, and at
times rebelled against trying to learn other work when assigned to her; 2s in addition,
she had reported for work several times with the appearance of being drunk and had
been warned about it. On one occasion, when a flood in 1963 destroyed her home
Respondent had given her time off to procure some emergency clothing and utensils
from a local church, but she appeared at the church under the influence of liquor,
and when this came to the attention of management, Slater wanted to discharge her
at once for disgraceful conduct, but relented and kept her on when she pleaded for
another chance. On one occasion in early 1964 she came to work so far under the
influence of liquor that she could not talk, and Slater told her she was discharged on
the spot; when she explained that she had domestic troubles, he let her sober up and
go back to work, but warned her against a repetition. After that, her attendance was
spotty, including 1 week's absence for illness. As against this behavior and less than
satisfactory work performance, Shell's production was better, she was willing to try
and learn new jobs, her response to supervision and suggestions was good, and her
attendance was good. On a comparison of the two records, Slater chose Johnson as
the worker he could best get along without, and kept Shell as the more desirable in
all respects The record shows that Johnson first learned about the Union at her
home from Carl Murphy sometime during the week of August 3, and that she signed
a card for him on August 6 or 7, but the place or circumstances of the signing are
not shown. In view of the covert nature of the union solicitation found above, I
cannot reasonably infer from this limited, outside union activity that Respondent knew
of or suspected Johnson's union adherence, and as against the same thin implication
or suspicion of such knowledge which I assumed on the basis of Thompson's limited
activity, I must conclude that Respondent has adduced cogent proof of its choice of
Johnson for layoff solely from legitimate economic motives which adequately rebuts
General Counsel's proof tending to indicate a discriminatory motive.
Arleda Gore was a fairly new employee, hired in October 1963. At discharge she
was the only worker in the classification of small coil winder, which she wound on a
lathe. In January and April 1964, Slater had given her good ratings for pay purposes,
indicating that she did good work and would improve with experience, on the basis
of which she received intermediate raises as a learner on February 1 and April 16.
Through the first 4 months of 1964, she had been making small heater coils for stock
purposes, until that stock had built up enough to last for a long time. In this respect
her work was seasonal, and since the stock was built up, Slater chose her for layoff
At Phico, there was not enough regular work to keep Johnson busy on her regular
job• so Slater at tiines•gave her work on other types of resistors, coils, and even-had her
doing cleanup`work on occasion'.
GUYAN MACHINERY COMPANY 609
because she was one of the newest workers and he had no other work to give her,
and did not know when it would be necessary to resume production of heater coils.30
Thus, though he considered her a good employee, he chose her for layoff solely for
lack of work in her partciular job; he could not transfer her to other jobs, as she was
not trained to do other types of work in the department . 31 There is no proof that
Gore engaged in any union activity or even discussions in the plant or elsewhere
before she signed a union card on the night of August 8, after her discharge, at her
mother's home in the presence of the two Henrys , Rice, and Tabor. Gore admitted
she never heard talk of the Union in the plant before that event. General Counsel
perforce must rest his claim to employer suspicion of her union activity on the fact
that during the week of August 3, Gore ate lunch with Eva Thompson and Margaret
Ingram at times , occasionally met Elizabeth T. Johnson when the latter had to get
parts from her, and had her clotheslocker near those of Mary Jane Heniy , Tabor,
Ingram, Thompson , and Johnson . However, these facts without more can raise only
a small suspicion , far short of a legitimate inference , that mere association with these
union adherents ( whose union activities were mostly covert ) may have tagged her as
a union sympathizer in the employer 's eyes. This suspicion is not proof , of course,
hence this lack in itself must cause General Counsel's case as to Gore to fall ; but even
if I were to assume some employer suspicion , the weak inference of discriminatory
selection arising therefrom is more than adequately overcome by the above circum-
stances showing that economic reasons were the sole motive in her choice for layoff.32
On the basis of all the above facts and circumstances , I conclude that General
Counsel has not sustained the requisite ultimate burden of proving on the entire
record that Thompson , Johnson , and Gore were laid off foi discriminatory reasons.
I therefore grant Respondent 's motion to dismiss the complaint as to them.
3. Hydraulic department terminations
In this department Foreman Jack Queen laid off Joseph Rice , Elmer R. Callaway,
and Dewey Crum. Rice was a hydraulic repairman who had worked on and off about
four times since 1960 for Respondent , his last employment beginning in January 1964.
On March 21 , 1964, Queen rated him as a learner , appraising him as a good worker in
all respects , noting only that his quantity of work could be improved . On this rating,
he received an intermediate pay raise on April 16, 1964. However , when first rated
as a regular worker in grade on July 27, 1964 , Queen indicated his attitude was still
high, and quantity of work had improved , but quality and all other factors had
dropped appreciably , and Queen reported that he had not been taking advantage of
training aids he had acquired Queen testified that, after the Match rating, he had
been allowed to handle more repair jobs on his own , but the repair records indicated
an increase in the number of rejections of his jobs on the testing line for faulty repair,
far more than three other men doing the same work . Since his work required not only
iebuilding pumps and related equipment , but testing to make sure of proper reassem-
bly with careful attention to sealing , increased rejections were a clear indication of
poor quality of work; the rework time for correcting defects also affected the quantity
of his final production . In checking on his problems , Queen discovered that Rice
had trouble in properly reading meters and measuring devices used in the repair work.
On the basis of his drop in quality and other performance factors between March and
July 27, which had been discussed with assistant foremen, Queen had concluded by
the latter date that Rice should be laid off , after the move , and that he would keep
repairmen Arthur Fraganino , Michael McDonald , and Stewart Adkins, whose per-
formance in all respects had been far better in the same period and showed steady
improvement . 33 Although the incident did not play a part in Queen 's decision, a sig-
ao Before Gore was hired , Slater had always assigned other employees to do her work
part time , and at her termination he thus had four or five other workers who could do
that work , which was a comparatively simple operation After her termination , she nas
not replaced , but her work was done by others , as in the past.
ii The same limited ability figured in the selection of Thompson and Johnson
a2 In reaching this conclusion as to the three women, I have also credited testimony of
Slater that he did not try to transfer them Into other parts fabrication,, because they had
no experience In those jobs, and the amount of work in each was slack In any event. At
the layoff date , the resistor department had 19 workers, and at time of hearing it was
operating with 17.
m Due to Queen 's unfavorable comments, management on July 29 did not give Rice a
merit raise at that time as a graded employee Rice asked Queen for such a inise on
August 5 , but Queen said he would have to wait until September , 6 months since his
March raise , when he would be rated again In contrast , both McDonald and Fraganino
received merit raises on June 1, 1964 , on the basis of their superior performance and
ratings
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nificant instance of Rice's recent poor work came to light the morning of his dis-
charge, when a motor previously repaired by him was received at the shop with a seal
burned out. Queen watched the motor torn down by other workers, and when it
appeared that the important seal had not been properly made and installed, he called
it to the attention of all the repairmen, including Rice, to show them how to avoid it
in the future. When Queen then checked the repair record, and learned Rice had
done the job before, he called him aside and criticized him for it, telling him he did
not appear to be a qualified repairman; Rice apparently did not dispute the fact that
his work had been faulty.34 On the basis of these facts, I am satisfied that Queen had
good reason long before the union campaign to choose Rice for layoff, and that he in
fact made that choice on August 7 and 8 only on that basis, and not because of Rice's
union activity which had been covert and outside the plant for the most part.
Respondent's proof, plus Rice's own admission on this subject, adequately rebut the
weak case as to Rice adduced by General Counsel.
Callaway began work for Respondent in 1955, and at his discharge had accumu-
lated 11 years of service and experience as a welder. Prior to 1964, he had been a
satisfactory worker, for in 1962 and 1963 Queen had rated him high in all factors
for pay purposes, except amount of work produced, which Queen reported he could
improve. On these ratings he had received merit raises which brought him in 1964
to the top rate for his job. However, at his May 1964 rating, his supervisors (Queen
and Brewster) considered that his attitude, dependability, and general job knowledge
had depreciated considerably, reporting that he had become temperamental, which
at times affected the speed of his work, and that he had expressed dissatisfaction with
a 7-hour day in the department. Queen had also talked to him frequently in the last
year about spending too much time on each job, and his tendency to spend excessive
time in talking with other workers, which affected both his and their work. On
Thursday, July 30, 1964, Callaway had asked Queen for a raise, but Queen told him
that he could not give him one, as he was already getting the top rate, and that if he
was not satisfied with his pay, he had better find another job. The next day, without
notice to management, Callaway was absent a half day, visiting two mines to apply
for work. When Queen asked him about the absence, Callaway said he had been job
hunting, as Queen had suggested Queen replied that he should hunt jobs on his own
time, and if he did it again, he would be dismissed. Although Callaway was appar-
ently the only full-time welder in his department, and had been working a full 8-hour
day both before and after the move, Queen chose him for layoff because of the
previously noted deficiencies in performance as a top paid employee. I am also satis-
fied that Queen had in mind his abrupt absence without leave for job hunting at the
end of July. While Callaway was on vacation in June, a younger worker, Ira Moore,
was assigned to his work as a temporary welder, and had done satisfactory work,
with none of the visiting or time-wasting indulged in by Callaway. After his dis-
charge, Moore, a former toolcrib attendant, was made the full-time welder, as his old
job had been eliminated in the move.35 When Moore went on strike, Queen tried to
induce him to return without success, so had to hire a replacement several weeks
after the strike started. Since Callaway was one of thoFe whose union activities
occurred outside the plant and was limited, circumspect, and on his own time inside
it, and there is no direct proof or valid inferential support for a finding that Respond-
ent knew or suspected his union activity, I conclude that the proof showing the
economic reason as the sole motivation for his choice adequately rebuts the slim case
to the contrary adduced by General Counsel.
Dewey Crum had been the shipping and receiving clerk in the hydraulics depart-
ment since 1957. In the old plant that department had handled its own receiving and
shipping, but when the new plant was planned, Queen assisted in the layout work and
knew that this function would be consolidated in a single. central location in the
machine department and handled by workers of that department, which would elimi-
nate Crum's job. After the move, Queen chose him for layoff for this reason and
also because his work in the old plant had not been satisfactory, in that he was
reluctant to do cleanup work in the department, trying to avoid it by stretching out
his packing and shipping work. Although his work had been satisfactory in 1962 and
most of 1963, his ratings for merit pay raises had dropped off between October 1963
and May 8, 1964; both Queen and Brewster had reported general lack of ambition
and diligence, with failure to improve his work speed. He was apparently not con-
34 In testimony admitting this incident, Rice tried to excuse it by saving that a burnout
of a seal could occur at any time, but he did not deny that this instance had been due
to the defect found by Queen, and he admitted he had had similar burnouts on his repair
jobs before.
iw In laying out the new plant , Respondent consolidated several toolrooms in one location
as part of the stockroom , which allowed for some consolidation of jobs, too.
GUYAN MACHINERY COMPANY 611
sidered for transfer to the machine shop shipping-receiving group at Phico, for the
same reasons ; there is nothing to show that the machine department had openings in
that work after the move. Considering that (1) Crum' s union activity had been
limited to signing a card on August 6 or 7 outside the plant, and speaking inside to
only two employees about it in the few days before, which was of a piece with the
limited and covert union activity found above, and thus permits no more than a
suspicion that Respondent knew about it, (2) he was a well known former UMA
adherent whose activity in 1958 had not caused any reprisal against him in the inter-
vening 8 years, and (3) Brewster's isolated inquiry of Crum about concerted activities
of the night machinists has been found uncoercive in its complete context, and was
apparently not an attempt to probe into Crum's own union activity or views, I must
conclude that the clear proof of economic motivation for his termination shown by
Respondent adequately rebuts the slim case of discriminatory motivation adduced by
General Counsel.
My conclusions that the economic situation controlled in selection of the three men
are also strengthened by the additional facts that. Before the move, the hydraulic
department had been on a 7-hour day, due to lack of business from the mining con-
cerns which normally sent in a large volume of pump and hydraulic equipment for
repair. Before August 8, the department was operating with about 20 employees in
various classifications. However, of 18 separate job classifications listed on company
records for the department, Queen had been operating with 5 not filled with separate
full-time employees: department group leader, machine tool operator, machinist
group leader, and honing machine operator . At the time of the hearing he was
operating with 15 workers at most, including one valve tester, Daniel Hall, who had
less service than Rice, but who worked fast and learned rapidly, and was able to do
this job as well as run grinding machines . Hall was kept, of course, over Rice,
Callaway, and Crum, because none of them knew that work, and, in any event, he
was far more desirable,and versatile on the basis of comparative productivity, which
was the main criterion governing Queen's selections . Queen never replaced any of
the three laid off.
On the basis of all of the above facts and considerations , I conclude that General
Counsel has not sustained his ultimate burden of proving a discriminatory discharge
of Rice, Callaway, and Crum, and I therefore grant Respondent's motion to dismiss
the complaint as to them.
4. The machine department termination
Dana Gillman first worked for Respondent from 1950 to 1952, and returned in
1955 after military service. In the last year before termination, he was a night-shift
machinist under Foreman Keith Garretson, doing general machine work in repair
of-mining machinery. Up to termination he had accumulated 10 years of machinist
experience and was the oldest in experience on night-shift, but not in the whole
department. Shortly after he was alerted to the need for eliminating two men from
the department, Foreman Glenn R. White chose Gillman for layoff,3U after con-
ferences with assistants Garretson and Odis B. Adams, mainly because of his fre-
quent absenteeism and constant refusal to continue to work overtime on rush jobs he
had started during his, regular night-shift, which compelled his foremen to assign
other workers to finish the jobs on overtime; this occurred so frequently in 1964 that
the latter workers began to complain about having to finish Gillman's work, and at
least two even flatly refused to "carry the load" for him. In addition, Gillman had
become temperamental, showing repeated reluctance to handle certain types of
work, at the same time complaining when younger men were given jobs he liked In
addition, in July 1964 he had become careless in handling certain machines, resulting
in breakage of tools on a lathe and a boring mill, so that foremen had to assign other
men to these machines, which further limited the work which he could be given. His
refusal to finish rush jobs on overtime caused so much grumbling among night-shift
workers in June or July, that Garretson asked White to do something about it. White
transferred Gillman to the day shift for 1 week, putting a day-shift man on at night.
Toward the end of that week, when White asked Gillman how he was getting along,
Gillman complained that he could not sleep at night, having been working night shift
so long, and also complained about the company doctor and other working conditions,
saying the employees should have other benefits. White replied that everyone looked
36 Before August 8, White had settled on Gillman and one other man, but laid off only
Gillman, when Shell finally told him on the 8th that only one man should be released
from his department
212-809-66-col. 155-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for "Utopia" and he hoped the workers would get all they wanted. Since the day
man shifted to Gillman's night job was also complaining, White returned both to their
normal shifts the following Monday. It appears that much of Gillman's attitude and
trouble stemmed from a nervous breakdown in 1962, with prolonged absence for
recuperation. On return, White exempted him from all overtime plus Saturday work
for a period, pursuant to his doctor's recommendation. When the workload built up,
Gillman consented to work overtime an hour or two a night on rush work, but con-
tinually refused to work through, which caused the assignment of other men to finish
his work as aforesaid, and created resentment among them. This irritated his fore-
man to the point that he quit asking him to finish rush jobs during the night, but asked
White to terminate him. Since most rush jobs came on night shifts, this seriously
hampered the nightwork, particularly since Gillman was the most experienced on
rush work and could handle all machines (except the boring mill). During early
1964, Gillman's quality of work declined because he tried to rush his work to get it
done during regular hours; his insistence upon doing only certain work continued, and
his carelessness in handling machines became noticeable just before the move, which
affected the quality and accuracy of his jobs Considering these deficiencies, and the
fact that in 1964 he was receiving top pay for his job, White decided to release him
because he was far less desirable than several younger men doing the same work at
lower pay rates, but who had proven far better in amount and quality of production,
ability to take on new work, and readiness to cooperate in handling rush or overtime
work.37 The only factors in his favor appeared to be that his record of absenteeism
had improved somewhat in 1964, and his long experience enabled him to do satis-
factory work on routine jobs using conventional machines, if he was allowed to choose
the job, but these factors were far overweighed in White's appraisal by his other
deficiencies and the dissension he caused in the department by his attitude toward
his work, particularly his refusal to do the necessary overtime jobs.
While Gillman's activity for the Union, like that of Mary Jane Henry, and others,
was far from open and notorious but rather covert, it is clear that Respondent was
well aware of his open dissatisfaction with working conditions, his apparent preference
for working under union conditions, and his prominence in the concerted presentation
of grievances by the night-shift machinists. While this activity raises some suspicion
that the layoff of Gillman with eight other union adherents was disiriminatory and
impels a careful investigation of Respondent's stated reasons for his termination, the
significance of his recent concerted activity becomes far less in light of credible testi-
mony of White and Gillman's admissions that Gillman had been openly active in the
1958 strike, with others from the machine department, and there had been constant
but sporadic talk among workers about a union in the plant ever since, but Respond-
ent had never taken any retaliatory action against them. Considering all of the
facts and circumstances pro and con, I am still brought to the conclusion that the
cogent facts adduced by Respondent as to Gillman's marked recent decline in overall
performance, attitude, and usefulness, despite his long service and experience 38 and
receipt of top pay for his job, which was presented by his foreman as the sole motiva-
tion for his selection for layoff, are sufficient to rebut the prima facie case of discrimi-
nation adduced by General Counsel. I therefore grant Respondent's' motion to
dismiss the complaint as to his termination 39
37 White had Julian Hill, Robert Runyan, and Scott Craddock in the same classification
as Gillman. Craddock, who was the day man exchanged with Gillman for a week as found
above, was doing the same work as Gillman, but on the day shift. The ratings of the
three for merit pay had been generally better than Gillman's and their tendency to improve
was noticeably better.
38 I have also considered the facts that: When notified of his termination, Gillman not
only reminded White of his long experience, but asked him and Burdette for a letter of
recommendation Respondent gave it to him October 14, 1964, advising a railroad com-
pany of his length of service and that it considered Gillman qualified as a journeyman
machinist. But this recommendation, recognizing his basic qualifications, does not detract
from the clear proof that in the period before his termination his work had deteriorated
in many ways, as found above, and that this alone motivated his selection for layoff
39 Other facts support the validity of Gillman's layoff* Before the move, the machine
department had been running a 7-hour day, due to depressed workload Before the layoff,
White had about 45 workers, 28 on day and 17 on night shift. When he returned to work
from the hospital on August 17, he found only 8 or 10 workers in the department, and
has since hired about 15 replacements for strikers Aside from the depletion caused by
the strike, White found that the loss of Gillman did not affect his operations at all
GUYAN MACHINERY COMPANY 613
5. The supply department termination
Ray Lambert was hired in November 1958, and worked during most of his employ-
ment as supply clerk under Supply Foreman James R. Jeffrey. Early in 1964,
Respondent at his request tried him out as a salesman on a route in Kentucky, but
after 2 weeks he gave that up because it kept him away from home too much, so
Respondent tried him out as a truckdriver, and then returned him to the clerk's job.
Jeffrey chose him for layoff because he was the least desirable of the four men in the
department, in that he was a slow worker, had a poor memory for parts which he
handled, and appeared to lack ambition to improve himself, as by taking advantage
of the opportunities for improvement which Respondent had given him. In addition,
in April, Jeffrey had decided to discharge Lambert because he had frequently been
leaving work without notice. However, when Assistant Manager Burdette told Jeffrey
not to do it then because he would need all the help he could get in moving the ware-
house and its stock to Phico, Jeffrey then reprimanded Lambert, warning him against
repetition of this practice. Late in July 1964, Jeffrey had also criticized him about
his work. In terminating Lambert, Jeffrey also considered that his general perform-
ance during 1964 up to his last pay ratings was only average, much less impressive than
that of two other storekeepers, who were harder workers, more efficient in their han-
dling of stock and supplies, much more adaptable, ambitious, and willing to try any
job, and thus promised more improvement.
Lambert joined the Union outside the plant, and his union activity inside was limited
to a single solicitation of one employee, but the circumstances and place of that event
are not shown, nor does it appear that Respondent or its supervisors learned of this in
any way; in view of the general covert nature of the solicitation found above, and
Dillon's instructions to union adherents along that line, the only reasonable inference
is that Lambert's single solicitation was also covert. In this posture of the record, the
economic reasons adduced by Respondent for Lambert's layoff assume controlling
significance , and the proof thereof is adequate to rebut the slim circumstantial case
to the contrary adduced by General Counsel. The economic nature of Lambert's
layoff, and lack of discriminatory animus toward him, is further shown by credited
testimony of Jeffrey from which I find that: Before the layoff, supply department had
six workers, and operated with five until August, when it had to take on additional
duties partly due to the strike, for which Jeffrey hired one Roger Epling as replace-
ment for Lambert, but only after Respondent had made unsuccessful efforts to con-
tact Lambert to get him to return. I therefore grant Respondent's motion to dismiss
the complaint as to Lambert.
Generally attacking the'alleged economic motive for the layoffs, General Counsel
and the Union point out that the costly construction of the new plant, plus the cost of
moving into it, and installation of new machinery at a cost of about $87,000, all occur-
ring while Respondent's business was depressed in the early months of 1964, with most
departments running on a 7-hour day, is hardly consistent with the claimed economy
in layoff of only 11 workers, all of them union adherents, particularly where the rec-
ord shows that foremen were not asked to figure the expected economy in their respec-
tive departments, some admitted they did not even know the reasons for the layoff,
and Shell's own estimate of the overall savings from the layoff was only about $50,000
a year, a small figure in comparison with the heavy building, moving, and expansion
costs incurred. General Counsel also argues that announcement of a general wage
raise on August 6, 2 days after the union campaign began, and 2 days before the
layoff, and the actual grant of it August 16, not only was coercive action violating the
Act, but also was an added expense inconsistent with the alleged economy of the move
and layoff. At first glance, these circumstances tend to indicate that a layoff saving
only about $50,000 might be false economy, raising the suspicion that the financial
aspect was not the true reason for it On this point, however, the record clearly shows
that the overall expansion and modernization plan had been legitimately conceived,
planned, and most of it carried out, long before the union campaign began, and that
the layoff was the last step in it. All the foremen knew, some from their part in plan-
ning the new plant layout (like Jeffrey and Queen) and all from their discussions with
Shell before the move, that some reduction in force would be made in all departments,
both because of consolidation of functions in the new plant and for overall `efficiency.
Hence, it is not significant that they were not asked to figure, and did not know, spe-
cific savings from a layoff for their departments, for that was obviously the function of
top management in its planning On the general picture, Shell testified credibly that
the saving from a layoff was only one aspect'of the overall economic objectives, and
that the new plant was built, despite slack business, because it was part of a long-range
plan, in which Respondent projected that with no more than a constant level of vol-
ume of sales and service over a long period, a reduction in overall cost might be
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expected from more efficient operation with fewer workers in a modem plant, and in
addition its larger size would allow for expansion of its line of products and services
as business warranted. While this is general, and perhaps self-serving, testimony
about long-range planning, I cannot ignore it, for it is well settled that the Board can-
not substitute its judgment for that of the employer on business decisions and opera-
tions and their necessity, and in the circumstances I cannot say that Shell's testimony
and documentary evidence, which indicated that this planning had been in progress
over several years, was not credible or merely pretextuous. It is well known that in
the modern business world, with its changing technological aspects and constant strug-
gle of employers to remain competitive, modernization and expansion plans are neces-
sary, are always costly at the outset, and often involve reductions in force, all in the
hope and expectation of future efficiency, economy, growth, and increase of profit
margins. I am satisfied (and General Counsel does not dispute) that Respondent's.
move to Phico was a legitimate business operation, and further that one normal aspect
of it was a layoff which Respondent naturally used to get rid of its least desirable work-
ers from the standpoint of efficiency, productivity, general value, and other normal
personnel considerations 40
While the timing of a general wage raise in the midst of an economy move, as well
as a union campaign, raises some suspicions as to the motive for it, testimony of vari-
ous witnesses of General Counsel,41 as corroborated by testimony of Burdette and
various foremen, indicates, and I find, that: It had been Respondent's policy since
1952 to give general wage raises shortly after employees in the various mines in the
area received similar raises The employees were aware of the policy, and after the
miners got a raise effective April 1, 1964, there was general speculation in the plant as
to when the employees would get theirs. When Rice talked to Foreman Queen on
August 5 about a personal raise, they also discussed the recent miners' raise, the
increased cost of living, and the fact that Respondent had always matched the miners'
raise in the past with one for its own employees. When Gillman heard rumors sev-
eral months before the move that Respondent might give as much as a 10-cent general
raise, he told Shell at one point that such a raise would not even offset the added cost
of travel to the new plant. As soon as the miners' raise went into effect April 1, Bur-
dette suggested that Respondent match it shortly, but Shell decided to give it after the
move was completed, because it would then coincide with any increased travel expense
of workers at Phico and decrease the likelihood that they would ask for a special raise
after the move to cover that expense. Since all departments had been moved, and
some were in production, by August 8, the announcement of the matching raise on
August 6 to be effective August 16 is consistent with this determination (which was
made in May, long before the union campaign) and does not appear unusual42-
While the raise costing about $30,000 a year at first appears contrary to the economy
objective, Burdette explained away, the inconsistency by his testimony that the raise
followed Respondent's longstanding and well-known policy of matching miners' raises,
and after due consideration in July Respondent had concluded that its cost would be
offset at once by the total savings in man-hours due to the layoff (about $50,000) and
more than offset over the long run by the more efficient handling of the workload by
fewer people in the new plant. Since the employees clearly expected the raise after-
the miners got theirs, and in light of the credible business explanations given by Shell
and Burdette, I must conclude that the raise announced August 6, and effective
August 16, was not reasonably calculated to coerce employees, either in their decision
to adhere to the Union, or in the decision to strike, nor does it depreciate the cogent
proof indicating that business and economic considerations were the sole motivation
for the August 7 layoff. I therefore grant Respondent' s motion to dismiss paragraph
5(e) of the complaint dealing with the raise.
to Another circumstance supporting the economic motive is that testimony of Shell and
the foremen who made the selections show that, absent the modernization plan with its
move and layoff, the employees chosen would probably have been kept at work, for man-
agement did not consider them clearly undesirable, but only the least desirable at
that time.
111 credit testimony of Callaway, Rice, and Gillman.
"The decision in May (or even August 6) to make the grant effective August 16-cannot
on any theory be said to have been made with intent to induce the workers to abandon the
strike, as General Counsel contends, for there is nothing to show that Respondent knew,
even as late as August 6, that a strike would occur on the 12th ; the decision, of the-
Union and employees on that point was not made until the afternoon of the 11th at a_
private mass sleeting.
GUYAN MACHINERY COMPANY 615
C. The nature of the strike
I have found that the record does not support a finding that the above 11 employees
were terminated on August 8 for other than legitimate economic reasons. I also find
from testimony of numerous witnesses of General Counsel, including Union Agent
Dillon, that the employees struck on the 12th, in part because Respondent failed to
comply with the Union's request for recognition, but mainly as a concerted protest
over the August 8 discharges 43 As there is no proof that the Union had majority
status on or before August 12, I cannot find that Respondent's refusal to talk to or
recognize the Union for any purpose on the 11th or 12th was unlawful.44 Therefore,
I must conclude and find that the strike occurred solely because the lawful economic
layoffs of August 8 and hence was an economic strike in its inception. The effect of
Respondent 's later overtures to the strikers and discharged employees will be con-
sidered below.
1. The case of William K. Henry
Henry was hired in August 1962 as a day-shift toolroom operator in the machine
department , working under Assistant Foreman Odis B. Adams. He later took on the
duties of tool grinder, but was handling only the toolroom at Phico after the move and
up to August 12 45 After some talk in July and early August in the plant and outside
with Mary Jane Henry and other employees about joining a union, Henry signed a
union card at his home on August 4, and then persuaded several other employees to
sign at the plant on August 4 and 6, as found above, but in view of the covert nature of
the union discussion and solicitation found above, and the lack of proof that any
supervisor ever talked to him about the union activity or his part in it, or his union
views, I am unable to form anything but a mere suspicion that Respondent knew or
suspected his union activity before he went on strike on August 12.
Henry was not laid off on August 8, but when the strike began on August 12 he
walked out with employees from other departments. When he first left the plant to
get the strike signal from employee Newman Skaggs, President Shell, Assistant Man-
ager Burdette, and Personnel Director O. E. Jenkins were standing in the roadway out-
side the plant. After getting the signal, Henry went back to the plant with other
workers to get their clothes. As he did so, Shell asked him if he was going out, too.
Henry replied that he was. Shell shook his head in a negative way, saying, "Well, go
on and don't ever come back." When Henry continued toward the plant, Shell asked
if he was going back, pointed toward the road, saying, "It is this way, isn't it?" Henry
replied, yes, but that he had clothes inside. Henry got his clothes and came out to join
the picket line. As he came out the second time, Shell pointed to his head, and said,
"Think, man, think." Henry has remained on strike ever since.
General Counsel argues that Shell's actions and remark "go on and don't ever
come back" show an illegal discharge because of Henry's participation in the protected
concerted strike action. There are several weaknesses in this position. First, for rea-
sons stated above, I am unable to find that Respondent knew or suspected that Henry
had been engaging in union activity before the 12th. Second, Shell's credible testi-
mony indicates that his first knowledge of the strike came about noon of that day
when he overheard some workers say that they were going on strike, as they went out
the door. When he went outside and saw that a good part of the work force had sud-
'a I have found no other conduct of Respondent before or at the layoff which amounted
to coercion or otherwise violated the Act, and which could be reasonably related to the
employees ' later concerted activities . In fact, no union adherent or official indicated
credibly that any of the alleged coercive conduct analyzed above caused or contributed to
the strike.
" General Counsel does not claim that the refusal amounted to an unlawful refusal to
bargain , but only that it showed continuing union animus which throws light backwards
on the motive for the layoff. However, as I have found that Respondent had union
animus before the layoffs , but did nothing to implement it in an unlawful way before
August 8 or on that date , the mere refusal to recognize the Union cannot convert an
existing lawful union animus into an unfair labor practice. General Counsel cites no
authorities which would require this conclusion.
's At Phico, his grinding machine was not supplied with power until August 8, but
Foreman White had promised that after it was, Henry would do grinding full time and
another man would handle the toolroom.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denly gone on strike, he was upset.46 Aside from his remarks to Henry, his only reac-
tion was to point to his head, as some workers went by him, and say, "Think, men,
think"; when he saw Frank Pridemore, a night-shift meter repairman, go out, he said
to him, "I am kind of surprised at you." In view of the suddenness and extent of the
walkout, Shell's shock and concern about it was only natural, and in the circumstances
his suggestions that employees think about their actions was reasonably indicative of
no more than shock and perhaps chagrin about it; his remark to Pridemore was not
antiunion, but merely showed his surprise that one who had been given supervisory
responsibility should join the concerted action 47 In this context, Shell's query
whether Henry was also going out shows only surprise, not that he already knew of or
suspected Henry's prior union activity; and his single suggestion that Henry should
not return does not impress me as a deliberate remark indicating conscious intent to
get rid of him that moment because he joined the strike or for past union activity, but
rather an on-the-spot impulsive reaction showing disappointment and chagrin at this
action.48 This conclusion is further supported by the facts that (1) Respondent did
not give Henry his final checks on the 12th, but shortly replaced him in the toolroom
crib with one Alex Butcher, a temporary worker hired originally to help with the
move, and turned his grinding duties over to workers who operated all grinding
machines in a central location, and (2) sent him his final checks on August 19 with a
letter stating he had been replaced. These facts persuasively indicate that on the 12th
Respondent still considered him as an employee engaged in an economic strike, pay-
ing him off in full only after it replaced him, as it had a right to do.49 Further, when
Respondent wrote him on September 21, 1964, suggesting he pay premiums due Sep-
tember 25 on his group insurance policy, he testified that he decided not to pay it
because he concluded he would not be recalled since he had been replaced. In all the
circumstances, including the fact that I have found that the layoffs of the 8th were not
proven illegal, I must conclude that Respondent has adduced cogent proof to show
that William K. Henry was not discharged but left his work on August 12 as an eco-
nomic striker, and was properly replaced thereafter, which is sufficient to rebut the
slim case to the contrary made by General Counsel. I grant Respondent' s motion
to dismiss the complaint as to the alleged discharge of Henry on August 12.
2. The case of Margaret Ingram
After being hired in August 1961 , Ingram worked at one job, making panels for
resistors in the resistor department under Foreman Harry Slater until August 13,
1964. She signed a union card at the request of Carl D . Murphy at her home on
August 5 or 6, but apparently engaged in no other union activity, and there is no
substantial proof that Respondent knew of or suspected her union adherence. When
the strike started on August 12, Ingram was at lunch and learned about it only on
her return to her department . She worked the rest of that day, but before she left,
Slater told her that he had arranged to pick her up and bring her to work the next
day if she wanted to continue working, the same as he was doing for other workers.
4e While I am convinced that the Union telegram of the 11th put him on notice that a
strike might eventuate , as he had already experienced one in 1958, the telegram did not,
of course , pinpoint the strike date or time, and there is no proof that Respondent had any
knowledge of the strike vote and timetable for it arranged by the workers at their mass
meeting of the 11th. That Respondent may have suspected a strike would come , but did
not know when , is also shown by testimony of Mooney that on the evening of the 11th,
Foreman Chambers asked him something "to the effect if I knew anything about what
time we would go on strike," to which Mooney said he knew nothing about a strike.
In all the circumstances , I do not consider this single inquiry a coercive action, but
merely a casual query by a supervisor , caused probably by the receipt of the telegram.
47 At times, Pridemore had been placed in charge of the night crew.
"If I were to infer employer knowledge on the 8th or earlier of his prior union
activity, then the logical assumption from General Counsel's basic theory would have
indicated a layoff of Henry on that date, like his aunt and other active union adherents ;
the fact that he was not argues not only lack of employer knowledge of his union activity,
but also that he was retained because of intrinsic merit , and also that Shell's remarks on
the 12th were merely the result of surprise and chagrin at the action of a valued and
retained employee . The record shows that assistant foreman Adams had complimented
him on his work during July, and in the latter part of that month had put him in for a
raise which was approved effective August 16.
49 See N.L.R B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345. As will appear
below, Respondent 's letter of October 22, 1964, offering Henry full reinstatement , was sent
on advice of counsel to limit any possible backpay liability.
GUYAN MACHINERY COMPANY 617
She replied that she wanted to talk to her husband and see what he thought about it.
Slater suggested that if she decided to work next day she should call him at his
home that evening. When she did not call him and did not come in on the 13th,
Slater called her late on the morning of the 13th, asked her why she did not call,
what the trouble was, and if she was coming back to work. Ingram replied that
she had not made up her mind about returning to work. Slater asked what her
husband thought about it, and she said he had not commented on it. Slater said
Ingram was old enough to make up her own mind, that she should think it over,
and if she wanted to report that afternoon she should call him and he would come
to pick her up. That afternoon Slater discussed with Burdette the status of his
department, listing the workers who remained at work and those who were on strike.
Slater told him about the morning talk with Ingram, and that he did not know if she
would return. As the personnel department had already hired several applicants
who could fill any of several jobs in the resistor department, including that of
Ingram, Burdette had a replacement letter with final paycheck prepared for Ingram,
and told Slater to take it to her home and talk to her, and if she was ill or indicated
she would return shortly, he should bring the letter back, but if she was on strike,
then he should hand her the letter and check. That evening, Slater went to Ingram's
neighborhood to talk to other workers to try to persuade them to return to work.
After talking to them, he spoke to Ingram near her home in the presence of her
husband, Ray Ingram, asking her if she had made up her mind. She replied that
she would not return to work, so Slater gave her the letter, saying Shell had told
him to give it to her. She read it, showed it to Slater with the checks, and asked
what she had done to deserve this, why she was replaced. He said he did not know.
She asked if it was because of her work, and he said, no, that her work was good,
he was satisfied with it, and he did not know when he could get anyone to do her
work as well, but that she was being replaced. Slater then offered the suggestion,
"I do not think you are involved in this, and if I were you, I would not get involved."
She answered, "What have I got to lose now," and that she would picket. Her
husband then said he did not care too much about her working, as he would rather
have her at home, and he did not want her on the picket line. Slater concurred,
saying, "I do not blame you, I would not want my wife mixed up in it either " On
the 13th, Respondent already had one Barbara Horton, a new, inexperienced
employee, available to do Ingram's work, and she did it thereafter during the strike.
In September, Ingram received the same letter from Respondent as other employees,
suggested she pay her insurance premium, but she did not pay it. She also received
the formal letter offering full reinstatement in October 1964, but refused to cross
the picket line to return.
Since Respondent gave Ingram her final pay and indicated she was replaced, only
after she made it clear that she would not return to work while the picket line was
operating, and I have found that the strike was economic in character, I must con-
clude that Respondent legitimately replaced her after she became in effect an eco-
nomic striker, and that all the pertinent and cogent proof indicates that she was not
discharged on August 13, but properly replaced as such striker.50 I therefore grant
Respondent's motion to dismiss the complaint insofar as it alleges that she was ille-
gally discharged and refused reinstatement.
C. Respondent's attempts to recall strikers and laid-oft employees
As soon as Respondent discovered the extent of the strike and its effect on the
various departments, it made efforts to get the plant back into production, both by
seeking to persuade various employees to return, approaching some who picketed
and others who stayed away from work because of the picket line, and by hiring
replacements for those who did not return. As soon as the day shift went on strike,
foremen in all departments talked to workers remaining to find out if they would
continue to work, offering to bring them through the picket line in cars if they did.
They also called workers on the telephone and visited them at home on the 12th
and 13th, making the same inquiry and offer; Slater's talk to Ingram and others
found above is one instance. Respondent made the same overtures to some who
50 I do not consider Slater's remarks to Ingram after giving her the letter as anything
more than his own views as to her satisfactory work and his noncoercive opinion about
the advisability of her decision to make common cause with the strikers, in which her
husband concurred . The reason for her replacement should have been obvious to her,
when he gave her the letter after she said she would not return across the picket line.
I grant Respondent ' s motion to dismiss the complaint, insofar as based on Slater' s remarks
to Ingram.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the plant and indicated they wanted to work, but were afraid to cross the
picket line. In addition, Respondent sent letters , starting about August 13, to all
strikers who were replaced (aside from employees laid off on the 8th), indicating
that they had been replaced and enclosing final paychecks. I find from admissions
of Shell and various foremen that at the outset they concentrated their efforts on
workers whom they felt or learned to be unsympathetic with the strike and who
indicated they would work but for the picket line, and at various times in the first
month or two of the strike they tried to get back specific experienced workers needed
in their old departments, due to the difficulty of getting adequate replacements.
General Counsel does not claim that the replacement letters to strikers amounted
to illegal discharges, but argues that the various efforts to get workers back to work
were an unlawful attempt to break the strike, within the meaning of paragraph 6
of the complaint, which alleges an unlawful discharge and refusal to reinstate only
of the 11 employees laid off plus Ingram and William K. Henry. I find no merit
in this contention. Paragraph 6 does not mention economic strikers, only the 11,
Ingram and Henry. I have found the 11 were lawfully terminated, so that after the
8th they were no longer employees; and it follows that if any picketed, they were at
most nonemployees making common cause with striking employees; I have found
only Ingram and William K. Henry to be economic strikers and hence still employees
until replaced, and Respondent treated them as such during the strike. However,
although not specifically pleaded, I consider the legality of the handling of the eco-
nomic strikers an issue, for it was fully litigated on both sides. Respondent adduced
credible testimony that in all departments, aside from instances where it did not
fill strikers' jobs with replacements because of lack of work or consolidation of jobs
in the move, it sent strikers replacement letters only after it had actually replaced
them with new employees. This was legitimate, for it is well settled that when faced
with an economic strike, an employer has the right to continue to operate his busi-
ness by hiring permanent replacements for economic strikers at will.51 I find noth-
ing unlawful in Respondent's attempts before such replacements to persuade expe-
rienced striking or other workers to return, for there is no allegation , or proof, that
such overtures were preceded by illegal interrogation to learn which workers were
weak in their union adherence or afraid to return because of the strike, nor did they
include remarks or actions which could reasonably be construed as an unlawful
offer of benefit, or threat of discharge or other reprisal, to induce them to return.
Nor does General Counsel or the Union point to any credible proof that directly or
by implication would indicate that Respondent attempted in any way to discriminate
against or penalize strikers after their replacement. The facts that Respondent at
first approached only workers still working to find out if they would continue, then
approached others who stayed out to learn if they would return, and then sent
replacement letters to strikers and others who stayed out as they were replaced, all
indicates that its efforts were no more than a genuine effort to keep its plant going,
first by use of existing employees and then by replacements of strikers and their
sympathizers. In absence of any prior pattern of union animus translated into ille-
gal conduct, I cannot consider these efforts as an illegal effort to "divide and con-
quer" in an attempt to break the strike and destroy any strength of the Union appar-
ent from the size of the strike. This conclusion is also supported by the fact that,
although Respondent knew on the 13th and after that the strike was due in part to
the layoff of the 8th, it did not make any attempt to break the strike by trying to
recall any of the 11 laid-off and least desirable workers, until after it had exhausted
all efforts to continue operations with existing employees and replacements, and
after losing many replacements.52 Hence, I credit Shell's testimony that its efforts
to get strikers back were motivated only by economic considerations, and not by
any desire to break the strike or destroy the Union.
I reach the same conclusion as to Respondent's letters of September 21, 1964, to
57 strikers, notifying them of the September 25 due date of premiums on their com-
pany life insurance policies, and suggesting they pay up, as well as similar letters in
October and November to those who paid in September. General Counsel argues
that these letters indicate Respondent considered the strikers still as employees, not
in fact intended to have been replaced at the time of their letters of replacement,
hence the earlier letters should be considered as proof of unlawful discharges because
m N.L.R.B . v. Mackaya Radio & Telegraph Co., supra; Hot Shopper , Inc., 146 NLRB
802, 805.
M The record shows that after August 12, Respondent hired 70 to 75 new workers as
replacements, but lost many of them before the hearing, and that those who stayed on
were classified as permanent workers in the learner category , in accordance with its
usual practice.
GUYAN MACHINERY COMPANY 619
of their lawful concerted activities. Respondent gives no clear explanation of its
reason for sending the September letters, other than the statements contained
therein. Each letter called the addressee "Dear Guyan employee," said that "you and
your company" were faced with the problem of what to do about the insurance
payment, and suggested "If you want to continue your insurance coverage, please
see Mrs. Gough and arrange payment prior to closing time (4:30 p.m.) on Sep-
tember 24th. It is strongly recommended that you do not let your insurance lapse,
since reinstatement at some future time carries some automatic disadvantages for
both you and the Company." 53 This wording is some indication that Respondent
considered the person named as a continuing employee, at least for the limited
purposes of insurance coverage, and intimated that continuance of the coverage
would be advantageous to both the insured and Respondent in event of reinstate-
ment, obviously by a return of the insured to work. If the striker receiving this
letter had not yet received his replacement notice, the insurance letter was clearly
a legitimate notice to an economic striker who was still an employee, not to let his
life insurance lapse. However, when sent to strikers who had already received
replacement letters,54 its wording was some indication that the Respondent consid-
ered the addressee still an employee, at least for the limited purpose of insurance
coverage, and can be construed as an inducement to such employee not to let an
important employee benefit lapse, to avoid further cost to him and Respondent upon
reinstatement of the coverage, obviously if and when he returned to work. But this
is not an offer of additional or new benefit to induce him to return, for it suggested
only continuance of the existing coverage during such indefinite period as the insured
did not choose to work for Respondent, or while the strike continued. It did not
suggest, directly or by implication, that the insured must abandon the strike in order
to retain the coverage. At most, it indicated only that Respondent thought the
strike might end sometime, and in the interim the striker should keep up his life
insurance payments for his own benefit. I am convinced that many of the strikers
considered the coverage as a personal benefit which did not hinge on abandonment
of the strike, for there is some record evidence that at least 18 of them paid the
September premium in response to the letter, but none of these apparently returned
to work. In all the circumstances, I do not consider the insurance premium letters
as proof of a separate or continuing effort to break the strike, or as a violation of
the Act in any respect.
On various dates between October 13 through 22, 1964, Respondent sent writ-
ten offers of full reinstatement to the 11 employees laid off on August 8. None of
them returned to work. Respondent claims the letters were sent, (1) on advice of
counsel , after the filing of charges herein on August 21, 1964, to limit any possible
backpay liability, and (2) as a tactical move in the hope that, since the strike was
caused in part by the discharge of the 11, an offer of reinstatement to them might
induce the strikers to return to work. However, Respondent also points out that
these offers were made only after previous attempts to induce some workers to
remain at work during the strike, and then to induce strikers to return, had failed,
so that this was a measure of last resort, because Respondent had felt all along
that those discharged, some of whom were on the picket line, would be least likely
to respond to recall attempts. General Counsel attacks these letters as insufficient
to toll backpay because the offers were not sent to all dischargees at the same time,
but piecemeal, which showed an intent to negate the protection given by the Act to
collective action by requiring selected strikers to accept reinstatement under penalty
of loss of wages or reinstatement rights, and thus force them to act as strikebreakers
against the interests of their costrikers. On this point, Shell admitted that the let-
ters to the 11 were sent on different dates in hopes that 1 or 2 might respond and
thus induce other strikers to return. This would be a sound argument in the case of
an unfair labor strike,55 but I have found an economic strike occurred here, and this
is not a case where the strikers as a group offered to terminate the strike and return
to work, and were entitled to reinstatement as a group without being penalized
therefor. As dischargees for good cause, the 11 were no longer employees, and not
51 The insurance referred to could only have been the life insurance available to company
employees under a group plan , as set forth in Respondent 's letter of explanation dated
February 24, 1959. While all group health and accident policy costs were borne entirely
by Respondent , apparently the additional life coverage placed with several insurance
companies was paid entirely by the employee
51 Such as James E . Mooney and Margaret Ingram.
cc Robert S. Abbott Publishing Company, 139 NLRB 1328, 1330, 1331 ; Berger Polishing,
Inc., 147 NLRB 21.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to the protection that the Act affords them in a strike situation, hence it
would appear that Respondent could offer them jobs in any order or manner that
it desired, without imputation of ulterior motive. Respondent's offers to them piece-
meal, and only after overtures to workers on August 12 and to economic strikers on
the 13th and later had failed, is explained by testimony of Burdette to the effect
that the offers were made only as a last resort as the various departments had need
for these former employees, whom he considered good employees, but economic
casualties. As this does not jibe completely with Shell's explanation, which also
indicates some attempt thereby to break the strike, I must conclude that both motives
induced the offers, and that Respondent by these offers was trying to induce eco-
nomic strikers to return by giving employment to the dischargees, whose prior ter-
mination had triggered the strike. However, the most significant aspect of this
offer is that Respondent was doing the very thing which the strikers and the Union
wanted from the outset of the strike. The Union, of course, in line with the present
argument of General Counsel, wanted the laid-off people to be reinstated in a group.
If Respondent had done this, however, or had agreed to talk to the Union about it
in accordance with its original demand, it might have exposed itself to charges from
antiunion employees of recognizing or assisting the Union in violaton of the law,
before it had clear majority status, especially where the Union did not rely on its
authorization cards or the doubtful circumstances of the extent of the strike or
picket line, to establish that majority, but chose to submit that question, within a
week after the strike started, to a secret-ballot election in the representation case,
and Respondent acquiesced in that course by its participation in that proceeding in
which the election has been held, with its outcome still in doubt due to the number
of challenged ballots. In these circumstances, I conclude that Respondent actually
did more than the law required in making the full reinstatement offers to the 11
former employees, and I credit Shell's testimony that its main motive was to hire
anew even these terminated and less desirable former employees in order to meet
its production needs. In all the circumstances, I find no violation of the Act in the
October offers of full reinstatement, nor any evidence therein which would indicate
that prior activities discussed above were other than lawful.
D. The issues in the representation case
Having found that the employees named in the complaint (except Ingram and
William K. Henry) were lawfully terminated on August 8, 1964, it follows that they
were not employees eligible to vote on the agreed eligibility date, and the challenges
to their ballots should be sustained. I have found that Ingram and William K. Henry
were not discharged but became economic strikers on August 13 and 12, respectively,
and that both were shortly replaced. Although they are replaced economic strikers,
who are not entitled to reinstatement, they are still eligible to vote under Section
9(c)(3) of the Act, since the election was held within 12 months after the com-
mencement of the strike. Respondent offers no substantial proof that either aban-
doned the strike or their interests in their jobs. Their ballots should be counted 56
As to 28 strikers (who were apparently not replaced but were challenged because
their names were not on the eligibility list), the parties stipulated, and I find, that the
following 21 should have been on the list and their ballots should be counted:
Howard Adams, Jr. Sherill Hanshaw Benjamin Forbes
Albert Donahue Jim Comes Fred Elkins
Roy Lee Evans Scott Craddock William Ramey
Denny Hall Alfred Dingess Michael E. McDonald
Larry Rondan Herbert Neal Drake Bill Miller
John Hill Harold Fisher Paul Fortune
James Lowe Dallas Hensley James Quillin
The parties disagree on the eligibility of seven other strikers:
1. John P. Avis
In the representation case, Respondent argued that Avis abandoned the strike and
his job before the election when according to uncontradicted testimony of his foreman,
he came into the plant one day to pick up his tools, said he was quitting to find another
job in Huntington, as he could not afford to be out of work, so he was taking his
tools with him. On this representation, Respondent allowed him to remove his
56 Pacific Tile and Porcelain Company, 137 NLRB 1358, 1359.
GUYAN MACHINERY COMPANY 621
tools.57 The removal of personal tools to find employment elsewhere during a strike
is not in itself cogent proof that the employee has abandoned his interest in his struck
job, unless there is also clear proof that the new employment is permanent; 58 and
where, as here, a machinist uses a personal set of tools on any job, his removal of
them from the struck plant seems as necessary to get a temporary job during the
strike as permanent one, so that the removal in itself is an equivocal act. While Avis'
statement that he was quitting to get another job is some proof of abandonment of
interest in his struck job, testimony of Personnel Manager Jenkins, and documentary
evidence, also shows that he adopted Respondent's September suggestion about paying
his life insurance premium, which is some indication of continued interest in the job,
and weakens the effect of his "quitting" statement. As I find no clear proof that he
abandoned his interest in his struck job, I recommend that the challenge to his ballot
be overruled, and his vote be counted.
2. Donald Burress
According to his foreman, Odis Adams, Donald Burress also came in one day to
get his tools, but was not allowed to take them until Burdette permitted it, at which
time Burress told his foreman that he was "leaving" and going to Columbus, Ohio.
On being prompted by Respondent's counsel, Adams also testified that Burress said he
was "quitting and moving" to Columbus. In light of this testimony, and applying the
principle used above, the mere acceptance of other employment, even rather far away,
is not of itself proof of abandonment of the strike. Hence, I recommend that his
vote be counted.
3. George Graham, Jr.
Graham was admittedly a regular employee who struck on August 12. As
Respondent offers no proof or argument to rebut the presumption that he continued
as an economic striker through the crucial date, I recommend that his vote be counted.
4. Lonnie Kirk, Jr.
The proof in the representation case shows only that he was an employee who
went on strike August 12, but Respondent presents no proof or argument now
which would rebut the same presumption which arises as in Graham's case. I
recommend that his vote be counted.
5. Freddie E. Maynard
Maynard was hired as a temporary worker on July 8, 1964, to assist in the move
to Phico. In that capacity he worked as laborer in various departments until noon
on August 12. When the strike began, he did not return to work. Respondent
marked him on its records as terminated that day because the move was completed,
but there is no proof that he was told he was so terminated. He telephoned the
plant August 14 to ask for work if Respondent would bring him through the picket
line, which was some indication to Respondent that he stayed out because of the
strike. Respondent had him brought in and tried out as welder-learner and several
other jobs the first day, but he could not handle them. He did not return the follow-
ing day but joined the picket line. It is clear that, although he was technically
terminated on the plant records as a temporary worker on the 12th, he was promptly
brought back at his request as a probationary worker, but quit when he proved unable
to handle any of the skilled jobs he tried. While Respondent' s willingness to try him
as a welder as soon as the strike began is some indication that it had been satisfied
with his temporary work and decided to try him as a permanent replacement if he
could do the work, the fact that he could not and then quit satisfies me that he was
no longer an employee on the crucial date, even though he immediately joined the
picket line when he quit. Hence, I conclude that his vote should not be counted.
6. James Farley
Farley was hired with Maynard as a temporary laborer during the move, but was
terminated on July 13 because he did not report for work. He apparently cut his
arm while doing laborer's work, but did not report it to Respondent or go to the
sr Shortly after the strike began, Respondent secured an injunction from a State court to
prevent violence by strikers and to limit their picket line activity, and at the same time
issued orders that strikers could not enter the plant without specific permission to pick
up their personal tools.
58 Pac fc Tile and Porcelain Company, 137 NLRB 1358, 1359.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hospital at the time, accepting first-aid treatment on the job and continuing work to
the end of that week. He later filed a workmen's compensation claim against
Respondent alleging an injury to his knee. He reported back for work in September,
but was told he had been terminated in July. He then joined the picket line. The
Union admits, and I conclude, that he was only a temporary employee, terminated
before the strike began. As there is nothing to show that Respondent after July 13
did anything to convert him from a temporary into a regular worker, as it did with
some other temporary workers when the strike began, I conclude that his vote
should note be counted.
7. Raymond Roberts
Roberts came into the plant September 16, 1964, to get his final pay, at which time
he signed a request for it which included the statement "my employment has been
terminated at my own request." 59 This form was prepared by Respondent as one
means of finding out which strikers requesting their tools or their final pay were
leaving their employment permanently to seek work elsewhere. I find that Roberts
thus evidenced his termination of employment on that date, and conclude that his
vote should not be counted.
I find both from stipulated and other facts in the record that the 44 employees
listed on page 4 of the Regional Director's Supplemental Decision were all hired
after the strike started and before October 15, 1964, as replacements for the
economic strikers, except Kenneth Eversole. Under Board policy it is presumed
that these replacements are permanent employees and eligible to vote, in the absence
of clear evidence to the contrary.69 I recommend that the votes of all but Eversole
and 11 others considered below be counted. The Union challenges the eligibility of
the following 11 as being temporary employees on the crucial date of October 15,
1964:
8. Carl Epling
The record shows that this employee was hired around September 1, 1964, as a
temporary replacement for Lambert in the supply department when that department
had to take on additional duties late in August; but after Lambert failed to accept
Respondent's offer of full reinstatement made by letter of September 18, 1964,
Epling was kept at work. I find that on the eligibility date he was a permanent
employee, and his vote should be counted.
9. John Justice
He was hired in the electrical department about 6 weeks after the strike started,
but quit after 2 months, which was past his 30-day "trial" period, but still within
the usual 90-day probationary period in a learner classification. Barring dismissal
for cause or a voluntary quit and assuming normal progress, as actually occurred,
there is nothing to show that Justice would not have been retained and finally placed
in a graded classification as a permanent employee. Hence, I find that he was
permanent on the eligibility date, and his vote should be counted.61
10. Robert Hargis
He was hired in the electrical department at the same time as Justice, and at time
of hearing was still employed and classified as a learner or beginner. As he had
passed his "trial" period, like Justice, and was on his way through the full 90-day
period, he clearly was permanent on the eligibility date, although at time of hearing
he had not yet emerged from the learner stage. His vote should be counted.
11. Kenneth McDonald
He was hired shortly after August 12 and was in the second month of his proba-
tionary period on the eligibility date, hence the same presumption of permanency
arises as to him, even though he was still a learner at time of the hearing. His vote
should be counted.
"I do not credit testimony of Roberts in which he tried to repudiate the quoted word-
ing, since he admitted there was some wording on the paper besides the request for
final payment . He clearly could read and write when he signed it, and could easily have
stricken the quoted wording if be did not intend to quit his job at Respondent, as he
claimed in his testimony . The fact that he did not discredits his self-serving testimony
on the point.
OD Pacific Tile and Porcelain Company, supra.
61 Pacific Tile and Porcelain Company, supra, 1363.
GUYAN MACHINERY COMPANY 623
12. Caresel Ball
Ball was hired in the machine shop between a week and a month after August 24,
when Foreman White returned from a hospital . He was taken on as a learner, but
quit after about 8 weeks of work. Though he was still on the payroll as a proba-
tioner or learner on the eligibility date, his failure to have completed the probationary
period by that date does not prevent a finding that he was permanent. His vote
should be counted.
13. Ronald Blankenship
Blankenship was hired with learner status as a vocational trainee, training suc-
cessively on various machines. Though he was still in his probationary period on
the crucial date, his vote should be counted for the same reason as given for Justice,
Hargis, etc.
14. Bruce Drautz
Drautz was hired in October 1964 as a learner on an engine lathe, and was still
there at time of hearing. Though he was still in his 30-day "trial" period on the
crucial date, his vote should be counted like that of Justice, etc.
15. Billy Fry
Fry was a temporary worker hired in July to help with the move, but was kept at
work as a laborer after the move until January 1965 when he was transferred to the
job of tool repairman learner . While he was still a laborer on the crucial date, the
record shows that Respondent kept various of the temporary help to do other work
in the new plant after the move, and Fry was apparently one of those, hence it is
proper to presume he was retained as a permanent employee, though not in a graded
classification . His vote should be counted.
16. Herbert Grimmette
Grimmette was hired shortly after the strike began, and worked on various
machines as a vocational trainee, though still in a probationary period, through the
crucial date , and then transferred into welding , and finally left Respondent in
February 1965. The same presumption of permanence applies to his status as for
Justice and others , and his vote should be counted.
17. Douglas Mullins
Mullins was hired shortly after the strike began as a learner on a lathe, then was
transferred to train on a boring mill, and remained as a learner until released after
4 to 5 months of work. Though clearly a probationer on the crucial date, the same
presumption as for Justice applies, and his vote should be counted.
18. Larry Rhodes
Rhodes was hired shortly after the strike started, and though he was still in his
probationary period on the crucial date, the same presumption of permanence applies,
and his vote should be counted 62
19. The Stollings employees
Respondent would include in the unit and count the votes of nine employees of
its resale department located in a separate building at Stollings, West Virginia, about
12 miles from Phico. These employees were not involved in the layoffs or the strike,
the Union has not picketed that facility, and it claims their votes should not be
counted because they were never claimed by Respondent to be and are not properly
in the appropriate unit. The resale department handles the reconditioning and resale
of used, secondhand mining, and accessory equipment; it also does some subassembly
of fans and other items for the departments at Phico, and rebuilds some items of
62 In making these rulings, I cannot indulge in the Union's speculation that all or most
of these 11 replacements were merely "thrown" on the payroll by Respondent after the
strike started without regard to qualifications, in order to build up a spurious replacement
list for voting purposes, for the credible testimony of Shell and various foremen indicates
that the extent of the strike forced Respondent to hire many inexperienced people, and
it ig only natural that a substantial number concluded during their probation period that
they could not do the work, or quit for personal reasons, and others were released for
inability, as Respondent admits. This is merely the normal experience of an employer
compelled to hire untrained people in the open market for skilled jobs. This effort is not
made spurious merely because Respondent was all the time trying to get experienced
striking employees to return by legal means
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment which are then stocked at Phico for use. While having its own foreman,
the department is under the overall supervision of President Shell, or Assistant Gen-
eral Manager Burdette in Shell's absence, but is run by a foreman, with clerk to
assist him, like all other departments. All of its supplies come through the main
supply department at Phico. Its personnel are all hired by, and their records main-
tained in, the main personnel department at Phico. All its personnel policies, includ-
ing wages and other employee benefits and policies, are handled by top management
through that department. Business correspondence for the resale department is
handled mostly at Phico. When the resale department was formed some years ago
its initial work force came from other departments in the old Logan plant, but it was
not set up in that plant for lack of space. When the main operation was moved to
Phico, the resale function was not immediately moved there for lack of funds,
although Respondent's plans include that eventual consolidation. There are occa-
sional temporary interchanges of employees between Phico and Stollings, at times
when Phico workers are sent to Stollings to work during the slack seasons at Phico
rather than being laid off; and there have been several permanent transfers of
employees from the main plant to Stollings, and vice-versa. During the move to
Phico, the Stollings plant furnished one man to help with the wiring of the new
plant. Although the Union has not sought representation of the Stollings workers,
and there was no picketing there in 1964 and 1965, in the 1958 UMW campaign
Stollings workers were included in the unit sought by UMW and the plant was
picketed for a short time.
The Union recognizes that on these facts either a single unit covering both plants„
or separate units for each, could be appropriate, but argues that existence of sep-
arate "immediate" supervision, and lack of "regular" interchange of employees„
absence of history of single-unit bargaining for both plants, and their geographical
separation, make a separate unit for each plant appropriate. While these factors-
tend to support a Phico unit, the factors of •interdependence of operation of both
plants in regard to supplies and, some work operations, common control, of opera-
tions and labor relations by a single top management,' with common personnel
policies and benefits, the similarity of skills and working conditions, and the more
than incidental interchange of workers between the two, which are not far apart
geographically, are far more persuasive that a Phico-Stollings unit is appropriate,
notwithstanding the Union's desire for a Phico unit only. Overton Markets, et al., 142
NLRB 615, 620; Universal Metal Products Corporation, 128 NLRB 442; Albert Lea
Cooperative Creamery Association, 119 NLRB 817. Tri-State Plastic Molding-
Company, 120 NLRB 1450. On all the facts now before me, I conclude that the
only appropriate unit includes workers in both the Phico and Stollings plants, and
recommend that the challenges to the ballots of the Stollings employees should be-
overruled, and their votes should be counted.sa
20. Miscellaneous challenges
W. C. Wilson and Glenn Grose were challenged by the Union. As Respondent
now joins in the challenge, conceding they are not properly in the appropriate unit,
I conclude and recommend that their votes should not be counted. Respondent
showed by uncontradicted proof that Irene Jeffrey was a regular employee in the
resistor department, and not a stockholder. On that basis the Union now withdraws
its objection to her vote, and I conclude and recommend that she is only a regular
employee within the unit, and her ballot-should be counted.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and the Union is a labor
organization within the meaning of the Act.
es I find no merit in the Union's claim that Respondent agreed to the unit limited to
Phico as set forth in the Regional Director's original decision of October 16, 1964. While
that decision issued only after the hearing of September 24 , 1964, on the unit Issue, at
which the Employer did not object to the Union 's description of a unit limited to Phico
and it appears that the question of inclusion of the Stollings employees did not arise until
their votes were challenged at the election, the Regional Director noted that no evidence
had been presented to him on the Stollings operation, and for reasons sufficient to him
administratively referred the question of the inclusion of those workers to -the, Trial
Examiner for the taking of testimony about the Stollings operation , and recommendation,
notwithstanding his original unit determination . Hence , in my view the inclusion of the
Stollings workers is still open , and is not foreclosed by Respondent 's failure to take a
positive position on it specifically in the representation hearing, or by its apparent failure
to appeal the original determination to the Board before the election.
CROWN COACH CORPORATION 625
2. Respondent has not engaged in any unfair labor practices as alleged in the
complaint.
I recommend that:
RECOMMENDED ORDER
1. The complaint herein be dismissed in its entirety.
2. In Case No. 9-RC-6022, the challenges to ballots of employees listed in the
attached Schedule A be sustained or overruled, in accordance with the findings above
and as set forth in the two lists in said schedule.
SCHEDULE A
Challenges overruled . Count ballots
Margaret Ingram Robert Baldwin John Justice
William K. Henry Jackie Belcher Kenneth McDonald
Howard Adams, Jr. Bobby Bahus Jerry Lawson
Alfred Dingess Carosel Ball Douglas Mullins
Albert Donahue Teddy Bias Tommy Owens
Herbert Neal Drake Ronald Blankenship Jim Morris
Roy Lee Evans Earl Boggs Estel Murray
Harold Fisher William Bowling Henry Parsley
Denny Hall Clifford Browning Dennis Porter
Dallas Hensley Jimmy Browning Larry Rhodes
Larry Rondan Alex Butcher Clarence Sanson
Benjamin Forbes Bobby Joe Cline Ruth Saultz
John Hill Jimmy Chapman Ernest Smith
Fred Elkins Diamond Collins John Whitlock
James Lowe McArthur Conley James Williamson
William Ramey Wilkie Conley Dennis Runyon
Sherill Hanshaw Conrad Cummings Irene Jeffrey
Michael E. McDonald Everett Cumrutter Lawrence Amburgey
Jim Cornes Bruce Drautz Raymond Elliott
Bill Miller Carl Epling Hayden Gibson
Scott Craddock Billy Fry Orsell May
Paul Fortune Herbert Grimette Leslie Maynard
James Quillin Joe Hampton Wade Perrin
John P. Avis Robert Hargis Johnnie Reggio
Donald Burress Avon Harless Howard Rosky
George Graham, Jr. Fred Hutchinson Don Watterson
Lonnie Kirk, Jr. Harold Hurst,
Challenges sustained. Do not count ballots
Ellen Ann Tabor Elizabeth T Johnson James Farley
Elmer R. Callaway Ray Lambert Raymond Roberts
Dewey Crum Carl D. Murphy Kenneth Eversole
Dana Gillman Joseph Rice W. C. Wilson
Arleda Gore Eva Thompson Glenn Grose
Mary Jane Henry Freddie E. Maynard
Crown Coach Corporation and International Union, United Auto.
mobile, Aerospace and Agricultural Implement Workers of
America, UAW-AFL-CIO. Cases Nos. 21-CA-5939 and 21-CA--
6138. November 8, 1965
DECISION AND ORDER
On July 27, 1965, Trial Examiner Herman Marx issued his Decision
in the above-entitled proceeding, finding that the Respondent had
155 NLRB No. 67.