Highland Crate Cooperative

National Labor Relations Board - Board Decisions

Jan 21, 1970

180 N.L.R.B. 844 (N.L.R.B. 1970)

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Highland Crate Cooperative and Local 589 , Retail,
Wholesale and Department Store Union,
AFL-CIO. Cases 12-CA-4419 and 12-CA-4463
January 21, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 10, 1969, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that the Respondent, Highland
Crate Cooperative, had engaged in certain unfair
labor practices as alleged in the complaint, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and
briefs in support thereof. The Respondent, in
addition, filed an answering brief.
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 this case to a
three-member panel.
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
answering brief of the Respondent, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Highland Crate
Cooperative, Jacksonville, Florida, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
The Respondent has excepted to certain credibility resolutions made by
the Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner ' s resolutions as to credibility unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect Such a conclusion is not warranted here Standard Dry Wall
Products , Inc.. 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner : This case was heard
before me in Jacksonville , Florida, on June 17 and 18,
180 NLRB No. 130
1969,' upon an order consolidating cases, complaint and
notice of hearing issued by the General Counsel of the
National Labor Relations Board (herein called the Board)
through the Regional Director for Region 12, dated May
20, and an answer filed on behalf of Highland Crate
Cooperative (herein the Respondent or Company) dated
May 22.2
The issues presented are, in essence, whether
Respondent, by its officer and agent, William Air, Jr.,
engaged in conduct which: (1) interfered with, restrained,
and coerced employees of Respondent in the exercise of
rights guaranteed in Section 7 of the National Labor
Relations Act, as amended (herein the Act), thereby
violating Section 8(a)(l) of the Act; and (2) discriminated
against an employee to discourage membership in Local
589, Retail, Wholesale and Department Store Union,
AFL-CIO (herein the Union), in violation of Section
8(a)(3) of the Act.
At the hearing, all parties were represented' and were
given full opportunity to present evidence relative to the
issues, to examine and cross-examine witnesses, to argue
orally on the record, and to file briefs At the close of the
hearing , counsel for the General Counsel argued orally on
the record. A helpful posthearing brief has been received
from counsel for the Respondent, and has been carefully
considered.
Upon the entire record in the case, including my
observation of the witnesses and their demeanor, I make
the following
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The complaint alleges, the answer admits , and I find
that at all times material the Respondent has been a
Florida corporation with its principal office and plant
located in Jacksonville , Florida, where it is engaged in the
business of manufacturing crates and containers. In the
course and conduct of its business operations, Respondent
annually receives goods and materials valued in excess of
$50,000, directly from points located outside the State of
Florida
I find, as the Respondent admits, that it has been at all
times material an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find,
that the Union has been at all times material a labor
organization within the meaning of Section 2(5) of the
Act
All dates hereinafter refer to the calendar year 1969 unless otherwise
specified.
'The original charge in Case 12-CA-4419 was filed January 3 and
subsequently amended on February 10 The original charge in Case
12-CA-4463 was filed February 25, and was subsequently amended on
March 26 and May 15
'Mr. Erskine Hepburn, who represented the Charging Party at the
hearing, entered an appearance for an attorney named Ernest Jackson of
Jacksonville, Florida , however, Mr. Jackson never presented himself at the
hearing
HIGHLAND CRATE COOPERATIVE 845
111. THE UNFAIR LABOR PRACTICES
A. Background
Prior to January 4 (when there was an economic layoff
of employees, as discussed more fully hereinafter), the
Company employed approximately 66 production and
maintenance employees engaged in the manufacture of
crates and other containers. Following a Board election,
the Union was certified on August 21, 1967, as the
exclusive bargaining representative for said employees,'
and the parties entered into their first collective-bargaining
agreement, apparently in October 1967 That contract was
of a year's duration, and the current agreement, which
was executed on October 12, 1968, is of a 2-year duration,
running until October 11, 1970.'
The Respondent's business is intimately related to and
dependent upon the condition of the Florida citrus crop.
There was evidently a freeze in December 1968 which
affected the condition of the crop to the extent that the
Company's general manager, William Air, Jr., made a
trip downstate to personally view and analyze the
conditions of the crop. Based upon such analysis, Air
concluded that the Company's business would be
substantially curtailed and that a layoff of employees was
necessitated. There is no contention that this layoff, which
occurred on January 4, was other than economically
motivated; however, the complaint alleges that one of the
employees included in the layoff' (Annie Bell Reynolds),
who was one of the Union's stewards, has since been
refused recall or rehire by the Company for
discriminatory reasons.
B. The Alleged Independent Violations of Section
8(a)(1 )
1. The complaint alleges that the Company, "On or
about December 18 and 30, 1968, select[ed] employees for
layoffs [sic] on the basis of consultations and discussions
with its production and maintenance employees while
neglecting and refusing to consult with, or discuss, said
layoffs with Union representatives."
The facts relating to this allegation are relatively
undisputed. It appears that several days prior to the layoff
on January 4, General Manager Air had prepared a list of
the employees whom he determined to retain in
employment following the layoff., During the last week in
December and the first week in January (prior to January
4), Air called into his office six employees in groups of
twos.' Air told the employees, in essence , that there was
to be a layoff and that ability was the prominent factor
respecting employees to be retained; that although the
plant superintendent and the plant manager had made up
the list and given it to Air, he wanted these employees
(who were older in terms of tenure with the Company) to
inspect it because he wanted to "be sure that we had the
right people on that list, because [he] was tired of having
all these grievances filed because of things we were
supposedly doing wrong." Air requested that the
employees to whom he showed the list advise him if there
were any employees thereon who they considered should
not be retained and, vice versa, also advise him of any
employees who they thought should be on the list and
were not named, and that he would take their suggestions
under consideration.
'Case 12-RC-2834
'See Resp. Exh. 4.
According to Air's testimony, he did not talk to Ruby
Lee Warren or Annie Bell Reynolds (the two union
stewards other than Walker) concerning the list because
"they were not present when I called in the last parties, to
finalize this matter."' Air testified that he showed the list
to Union President Hepburn in Air's office about a week
or 10 days prior to the actual layoff; however, this was
unequivocally denied by Hepburn. I will assume the
validity of Hepburn's denial for the purpose of analyzing
this issue.'
Analysis and Concluding Findings
As I understand the theory of the counsel for General
Counsel on this aspect of the case, it is that Respondent
interfered with, restrained, and coerced employees in the
exercise of their Section 7 rights by Air's calling in the six
employees, in the manner aforesaid, and imparting to
them information respecting the impending layoff, while
ignoring talking to two of the union stewards as well as to
Union President Hepburn concerning the matter. It is
contended that "this conduct was unlawful because it had
the foreseeable effect of causing these employees at
Highland Crate to understand in no uncertain terms that
the Company would control which employee
representatives it would deal with, talk to and make privy
information that not every employee had." Stated another
way, it is the General Counsel's contention that the
Company committed a violation of Section 8(a)(1) of the
Act by refusing to deal with the employees and
representatives which the Union had selected to represent
them for collective-bargaining purposes citing the
following cases: Deena Artware, Incorporated, 86 NLRB
732; Wooster Division of Borg-Warner Corporation, 113
NLRB 1288; The Prudential Insurance Company of
America, 124 NLRB 1390, 1397; Signal Manufacturing
Company, 150 NLRB 1162; and Harcourt and Company,
Inc, 98 NLRB 892.
There can be no dispute with the following generally
recognized principle:
Each party to the collective bargaining process has a
right to choose its representative, and there is a
correlative duty on the opposite party to negotiate with
the appointed agent.-
However valid this proposition may be in the context of
a refusal-to-bargain case (such as in the cited cases), it
seems to have slight applicability to the situation here.
The instant case poses no refusal-to-bargain issue, the
parties having only a few months previously, in October
'The layoff encompassed 24 employees See G C Exh 3
'The six were Andrew Walker (a union steward ), Lucille Hurley, Ruth
Hayes, Inez Nelson , Pearl Timmons , and Retha Lee Cooper Hurley,
Hayes, and Cooper were former stewards of the Union, but had been
relieved of their positions in approximately September 1968.
'During the several weeks immediately prior to the layoff, employees
worked only 2 or 3 days per week on a rotating shift basis
'Resolution of credibility as between Air and Hepburn is of extreme
difficulty . Neither particularly impressed me as being altogether candid,
and both had a high degree of interest in the outcome of the proceedings I
received the distinct impression that neither would hesitate to bend the
truth if it was thought that such would be of ultimate benefit to his side
The record further shows that the relationship between the two individuals
had seriously deteriorated from the time of the events in question until and
including the hearing
"N L R B v ILGWU, 274 F 2d 376, 378 (C.A 3) This derives, of
course , from the right given employees by Section 7 " . to bargain
collectively through representatives of their own choosing " (Emphasis
supplied.)
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968, concluded a collective agreement. That agreement
unequivocally gives the Company the right, inter a/ia, ".. .
to lay off or transfer employees because of lack of work
or other legitimate reasons ." (Article II, A.) Also the
contract provides that " ... ability as recognized by the
Company shall be the factor in the selection of employees
to be retained, rehired or transferred relative ability being
equal in the opinion of the Company, seniority shall
prevail." (Article IV,C.) Thus it appears doubtful that if
there is any obligation imposed upon the Company by
contract to even notify the union representatives of its
decision to effectuate an economic layoff." However,
General Manager Air, in an apparent attempt to avert the
filing of grievances, went beyond the decision of his plant
manager and superintendent as respects the ability of
employees to be retained, and sought the counsel of some
of the older employees of the Company on this matter.
Included among the six employees consulted (out of a unit
of approximately 66) was a union steward . The most that
can be said with respect to these conferences from the
standpoint of the General Counsel is that Air sought the
advice and perhaps support" of the employees interviewed.
There is no evidence that he intended to - or did - deal
with or bargain with them concerning the matter.
While it perhaps would have been better practice from
the standpoint of promoting more cordial
labor-management relations for the Company to have
notified each of the union representatives and stewards of
its contemplated action, I do not find sufficient evidence
that the conduct here violated the statute. (I specifically
refrain from making a finding as to whether the conduct
violated any provision of the contract. This would appear
to be within the purview of an arbitrator if such an issue
is subject to arbitration under the contract.)
As I view the situation, the Company had no obligation
to notify the Union at all concerning its decision, but
nevertheless did so through notifying one of its stewards.
Even were I not to accept wholeheartedly (as I do not)
Air's explanation for his refusal to advise Warren and
Reynolds of the existence of the list, I do not consider
such failure and refusal to constitute " interference,
restraint and coercion" of employee rights in violation of
Section 8(a)(1). Accordingly, I shall recommend that this
allegation of the complaint be dismissed."
2. The complaint alleges that Respondent on or about
February 10 violated Section 8(a)(1) by advising an
employee that she might be recalled from layoff if she
"As previously noted, the layoff itself is not attacked in the complaint as
being either discriminatorily motivated or that a discriminatory selection of
employees occurred; i.e., that the Company utilized the layoff to
discriminate against union employees versus nonunion employees.
"I note that Air requested them to sign the list if they agreed with it. No
reason is apparent for such request other than the seeming desire of Air, in
the event of any future arbitration proceedings, to evidence the employees'
support for his choice of employees to be retained.
"The facts in Harcourt and Company. supra, 894, 895, seem closer to
those in the instant case than any of the other cases cited by the General
Counsel In that case, following an impasse in bargaining between the
company and the union, a leading company representative held one or two
meetings with some of the older employees for the asserted purpose of
requesting suggestions as to how the company might settle the dispute with
the union. During the meeting he also commented that "if he could get rid
of the [President of the Union], he thought he could make a deal with the
rest of the people." The Board found the last statement to be a violation of
Section 8(axl) as well as the "call[ing] together groups of older employees
and interrogat[ing] them concerning their attitude with respect to the
position taken by their representative in bargaining negotiations with the
Respondent." The facts in the instant case are, of course, readily
distinguishable.
abandoned her union affiliation.
This allegation is concerned with an interview between
General Manager Air and Annie B. Reynolds (the alleged
discriminatee in this case ) in his office on the stated date.
The interview was held in the presence of Union Steward
Walker, it appearing that Walker actually arranged the
meeting , and Air testified that the purpose thereof was to
talk to Mrs. Reynolds concerning possible recall for
herself and others. The substance of the interview varies
rather widely depending upon whether one chooses to
believe the- testimony of Air or Reynolds. Again, this
always difficult chore of a factfinder is not rendered less
so in the instant case, and as respects the individuals
involved I was not particularly impressed with the
demeanor of either of them on the witness stand. Also I
have taken into consideration the interest that each has in
the outcome of the proceeding. Under the circumstances, I
would tend to give greater weight to the testimony of
either of them when corroborated by that of Walker, who
impressed me as a more credible witness; however, he is
quite uneducated (he was unable to read) and this was
reflected by his inarticulateness in describing the events to
which he was a witness . Accordingly, the findings below
represent a synthesis of the testimony under the difficulties
described:
Reynolds sought recall for all laid-off employees and
made the proposition to Air' that if he would recall them
and "get them all in the Union the charge will be
dropped."" Air replied that he could not tell employees to
join the Union any more than he could tell Reynolds to
get out of the Union. However, I find that he did make a
counterproposition to her that if she would sign a letter
that she did not desire reemployment, he would put the
rest of the employees back to work. She refused this offer,
but offered to resign as shop steward if that would help
the people to get their jobs back. However, Air declined,
stating that as long as she was connected with the Union
she would cause trouble. He further noted that if
Reynolds were "a lady like Mrs. Warren" and apologize
to him as the latter had done then perhaps she could
return .' ° Reynolds refused, stating that she had nothing to
apologize for. The interview ended indeterminably.
Based upon the foregoing findings, I conclude that this
allegation of the complaint has been sustained by
competent and substantial evidence, and I will recommend
an appropriate remedy.
3. The complaint alleges that Respondent violated
Section 8(a)(1) on or about February 10 "by telling an
employee that the Union was no good and the employees
should get another union."
In support of this allegation , counsel for the General
Counsel offered the testimony of employee Rosa Lee
Williams who testified that she was laid off with other
employees on January 4, but returned to work on
February 10. She stated that during the afternoon of
February 10, she was told by another employee that Air
wanted to speak to her and she went to him, and testified
as follows respecting the conversation.
A. So, he told me - he said - he told me he was
glad to see me back to work, and I told him I was glad
to be back to work.
"Testimony of Walker.
"The record shows that the other shop steward , Ruby Lee Warren, had
been laid off along with the other employees on January 4; that a charge
had been filed on her behalf with the Board alleging discrimination; that
around the end of January Warren apologized to Air for calling him a
"pharaoh," and she was recalled to work; and that the charge was
thereafter withdrawn and Warren resigned from the union.
HIGHLAND CRATE COOPERATIVE 847
So then, he was tellin' me about - they do more for
the Highland Crate done more for the people than
any other plant have done, so - so I axe [sic] him
about Mrs. Somersille, when was he goin' to recall her
back to work; so, he told me that she was a
troublemaker, say she was a troublemaker, so then, he
was tellin' me about - why don't we get a new
representative a new union, 'cause Mr. Hepburn
wasn't any good.
So then, I axed [sic] him about Bell - Mrs.
Reynolds, so he said he didn't expect to recall her back
to work, he don't think he's ever gonna call her again.
Q. All right.
Now, did he indicate to you why he didn't expect to
call her back?
A. He said she was a troublemaker, too."
Air recalled having a conversation with Williams on the
day she returned to work but did not testify as to the
substance of such conversation. He merely denied making
any reference to Reynolds as a troublemaker or suggesting
that the employees get a new union or a new union
representative.
Under all circumstances, including the demeanor of the
witnesses and failure of Air to testify as to the substance
of his conversation with Williams, I credit Williams'
testimony. Having done so, I find that the statements of
Air constitute restraint and coercion within the meaning
of Section 8(a)(1) but not necessarily in accordance with
the theory expressed by the allegation in the complaint.
That is to say, in agreement with Respondent's
contention, I do not deem it a violation of the statute for
an employer to have a low opinion of a union
representative and to express such opinion to an employee
with a suggestion that the employees should consider
replacing such representative, so long as such suggestion is
not coupled with a threat or other intimidatory remark.
Here, however, the remark was directly followed by
reference to a union representative (Mrs. Reynolds) who,
as appears more fully hereinafter, was well known to
employees and management as an active and agressive
union steward. By Air's reference to her as a
"troublemaker" in this context, with the additional
comment that he did not expect ever to recall her to work,
is to effectively relate that any employee who acted
similarly might reasonably expect economic retribution
from the Company. Accordingly, I find his remarks to
constitute interference, restraint, and coercion within the
meaning of Section 8(a)(I), and I will recommend an
appropriate remedy."
4. The complaint alleges that on or about March 4,
General Manager Air called a plant meeting of employees
in which he advised that unfair labor practice charges had
been filed by the Union, and implied that there would be
additional employee layoffs unless the employees induced
the Union to withdraw the said charges.
Air testified that he called a meeting in his office in the
early part of March, in which some seven or eight
employees participated, for the purpose of seeing whether
or not a more harmonious relationship could be brought
about between the Company and the Union "by seeking a
way, through the employees, to get Mr. Hepburn to come
"Employee Mattie Somersille was an alternate shop steward for the
Union. See G .C. Exh, 4.
"Although the violation was found upon a theory different from that
apparently expressed in the complaint , I do not deem Respondent to have
been prejudiced thereby since the matter was fully litigated . See J.C.
Penney Co., Inc. v. N.L.R B., 384 F.2d 479 (C.A. 10).
out."" Air denied making any mention of a layoff to be
made the following Friday or any later date.
However, employee Rosa Williams testified that Air
mentioned a charge and asked why the employees didn't
form a committee and go down and talk to Mr. Hepburn
about it, coupling that statement with an announcement
that "he was gonna layoff that Friday, that he'd rather
run two machines and have the people happy than to run
them all and have them unhappy."
Employee Ruth Hayes corroborated Williams. She
testified that Air talked about the fact that there had been
a charge filed and that there was confusion existing in the
plant, and he wanted the employees to get Mr. Hepburn
out there to see what could be worked out. She further
testified:
Q. Well now, do you remember anything further he
said about this confusion?
A. Well, he said that - I know he said he was kinda
gettin' fed up with it, that he would rather he didn't -
he didn't have to be workin' the people he was workin',
that he could cut it down.
Q. Cut what down?
A. The work force, that he didn't need to be runnin'
but two machines, far as the Company standpoint.
I credit the testimony of the two employees" and find,
in agreement with General Counsel, that the Respondent
violated Section 8(a)(1) by threatening additional layoffs
unless the employees induced the Union to withdraw the
charges.
5. The complaint alleges that on or about March 5, the
Respondent violated Section 8(a)(1) by Air's interrogating
an employee as to whether she and other employees
intended to continue to support the Union
In support of this allegation, General Counsel relies on
the testimony of employee Rosa Williams who stated that
on the day following the March 4 meeting, hereinabove
referred to, General Manager Air came over to her
machine and asked "what you all gonna do?", to which
she replied "well, God knows." Air responded that he
would build the work back up in the plant if the
employees would let him.
Contrary to the statement in-Respondent's brief (page
13) that "she [Williams] had no idea what he was talking
about; by the same token neither do we", it seems clear
that Air had reference to the meeting of the previous day
and inquired of Williams whether the employees intended
to follow his suggestion about going to see Hepburn.
While I have found this suggestion coercive because it was
coupled with a threat of layoff, I do not believe it
necessarily follows that any subsequent inquiry with
respect thereto is coercive, in the absence of a reminder
respecting the layoff or other such intimidatory remarks.
Accordingly, I find that the General Counsel has not
sustained his burden of proof on this allegation and will
recommend that it be dismissed.
6. The complaint alleges that on or about March 6, the
Respondent violated Section 8(a)(1) by Air's asking an
employee to withdraw from the Union.
Counsel for the General Counsel stated that he relied
upon the testimony of Shop Steward Walker in support of
this allegation. However, in response to counsel's question
as to whether Air ever talked to him about his getting out
"Some of the employees who attended were Retha Lee Cooper, Lucille
Hurley, Pearl Timmons , Ruth Hayes, Rosa Williams, Beulah Bolden,
Charles James , and Andrew Walker
"Walker did not , in his testimony , recall any statement made by Air on
this particular point
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union, Walker responded, " no sir , he never he
didn't axe [sic] me get outta the union. He said I could
help him, but he never did say what way - I don't know
what he meant by that." Obviously, this evidence does not
support the allegation ; accordingly, I shall recommend
that the complaint be dismissed in this respect.
C. The Alleged Discrimination as Respects Annie
Bell Reynolds
The complaint alleges that Respondent has failed and
refused to recall, rehire, or reinstate Annie Bell Reynolds
because of her union activities.
As previously noted, Reynolds was one of the
employees included in the mass layoff of January 4, and
this layoff is not attacked as discriminatory in the
complaint; it is only the failure and refusal to recall,
reinstate, or rehire that is claimed to be unlawful
Reynolds had been a longtime employee of the Company,
having been first hired in 1946, and worked until 1962
when she left the Company under circumstances which are
not clear in the record. In any event, her testimony that
she was called back to work in 1965 and worked
continuously thereafter until the January layoff, is
uncontradicted on the record.S°
Reynold's work classification as an employee at the
time of layoff was that of a cleat layer or board layer. As
previously noted, the Company is a manufacturer of wire
bound and corrugated containers and, at the time of
layoff, utilized seven machines in its operation. There are,
generally speaking, nine employees in a crew operating
each machine The classifications of employees on each
crew are as follows: cleat layer, slat layer, operator,
stockup man, rock fastener, header (2), cull repair, and
board layer. Of these classifications, Air testified that
improvements in the machinery made most of the jobs
relatively unskilled, except those of the operator, header,
and cull repair. The latter classifications required the most
skill, and the record reflects that workers in these
classifications received slightly higher rates of pay.
Reynolds' classification at the time of layoff was that of
cleat layer or board layer but the testimony of her fellow
workers shows that she was not only capable of - but
had regularly performed - all of the jobs except that of
header. There is no evidence that she failed to perform her
work proficiently during her period of employment.
As set forth above, Reynolds became a union steward
in November 1968. From that time until the January
layoff, she filed two grievances on behalf of other
employees concerning which she met with management
representatives. In October she had filed a grievance on
behalf of herself which was eventually resolved in her
favor.
At the January 3 meeting with employees in which Air
announced the forthcoming layoff, Reynolds inquired of
Air why he called in the other employees to inspect the
layoff list and did not call the union stewards. Air replied
that he had the privilege of calling anyone into his office
that he desired and was not required to call in a steward
unless it was a grievance meeting . Reynolds then inquired
why Air allowed the other people to peruse grievances
which were in his office and laying on his desk. The
"Her date of hire is listed as "4-24 -46" on the October 17, 1968, job
classification list The date of hire is listed as "8-20.65" on the November
11, 1968, seniority list The record shows that issuance of the second list
which changed the seniority standing of some employees gave rise to
friction between the company and union representatives.
record does not reflect that Air responded to that inquiry.
Following the layoff, the record shows that Mrs.
Reynolds came to the plant on at least two occasions. The
first was on February 10, the details of which have been
fully set forth hereinabove in Section B, 2. The second
occasion occurred in March, at which time Reynolds came
to the plant in the company of Hepburn. The latter
apparently went to the plant at the request of Air in an
effort to compose their differences. Hepburn insisted that
Reynolds go with him because she was still a union
steward even though she was, at that time, not working
due to the layoff. However, Air refused to meet with
Hepburn in the presence of Reynolds because, as Hepburn
testified, Air did not like her attitude and he did not
intend to talk with her. Hepburn refused to meet with Air
in the absence of Reynolds, so Hepburn and Reynolds
proceeded to leave the plant.
Mrs. Reynolds had not been recalled or rehired by the
Company at the time of the hearing.
Analysis and Concluding Findings
The Respondent concedes its failure to recall Reynolds,
grounding its position on the claim that it had no opening
for any employee in her classification during the 90-day
period, following layoff.2' Respondent denies refusing to
rehire her following the 90-day period, claiming that she
did not present herself at the plant or otherwise apply for
employment The Company further points out that there
is a decided lack of evidence of antiunion animosity on its
part toward the unionization of its employees, referring
particularly to the testimony of Air that "having a union
was good for the company and the employees."
I am unable to agree with this position of the
Company. Whatever may have been General Manager
Air's opinion respecting unionization of his employees in
general, the record is clear that he strenuously objected to
Reynolds' aggressiveness as a steward. As he testified:
The feeling was in the plant that since Mrs. Reynolds
had been made a steward that we had had continual
problems with grievances and charges, and one thing
and another, and for the thirteen months prior to this
time, we'd only had one grievance, and it was resolved
without going into a formal charge, and then all of a
sudden, the policy of electing stewards had been
discontinued, apparently, and firing the stewards
were fired and the new stewards were appointed or
elected however they were put into the position, and
then it seemed to be a series of alleged violations, so far
as the Company was concerned.
Moreover, Air's displeasure with Reynolds as a union
steward was manifested on several occasions. Thus, as
previously found, he indicated that he would recall her if
she would resign from the Union; he told employee Rosa
Williams, in a context of criticism of union
representatives, that he considered Reynolds to be a
troublemaker and that he did not expect ever to recall her
to work there; and he announced at the January 3 meeting
according to the testimony of Lucille Hurley, that he did
"The basis for the 90-day provision relied upon by the Company is
subsection (5) of article IV, E, of the contract (Resp Exh. 4) which states
that "Seniority shall be broken for the following reasons: . . (5) layoff or
illness for a period of three (3) months or more " The Company doubtless
interprets this provision to mean that after 3 months its obligation to recall
employees on layoff was obliterated , that following that period if a former
employee desired employment with the Company, it was the employee's
obligation to apply therefor, and, if employed , to commence as a new
employee.
HIGHLAND CRATE COOPERATIVE
not inform Mrs. Reynolds concerning the layoff because
he did not feel that she was cooperative. Finally, in a
conversation with Union Steward Andrew Walker in
March, Air made reference to Reynolds with an obscenity
and stated that "he'd rather not have her in there." 22
I cannot agree with the Respondent's contention that,
in any event, it had no obligation to recall Reynolds
because "it is clear from the record that no one in
Reynolds' classification was recalled from layoff (G.C.
Exhibit 4"23 While it is true that the record reflects that
the Company did not recall any employee in the job
classification of cleat layer or board layer, there appears
to be substantial evidence that the distinctions reflected by
these various classifications are more theoretical than real.
That is to say, as General Manager Air testified, the
employees are encouraged to "shift around amongst
themselves" in a kind of training program because "that
is the way that people learn to improve themselves."
Although Air denies that Reynolds could qualify in any of
the openings that were available during the 90-day period
following layoff, the fact is that the records reflect that
the Company did recall two employees (Dorthia Braddock
and Rosa Williams) on February 10 to the position of
operator. The records further reflect that Reynolds was
superior in seniority to either of these two employees.
Finally, the testimony of fellow employees Hayes, Hurley,
Nelson, and Reynolds herself shows that she was capable
of --- and had indeed performed on a regular basis -- the
job of operator on a machine. Accordingly, on the basis of
all of the foregoing, I find that the Respondent, by failing
and refusing to recall Reynolds, on February 10, to its
employ, discriminated to discourage membership in the
Union, in violation of Section 8(a)(3) of the Act.2'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with the interstate
operations of Respondent described in section 1, above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact and
upon the record as a whole, I make the following:
"Respondent argues that Air's lack of union animosity was
demonstrated by his recall of Union Steward Warren in latter January
However, I discount the probative value of that incident inasmuch as
Warren immediately resigned from the Union following her return to
work.
"Respondent ' s brief at page IS.
"1n view of the foregoing findings, I deem it unnecessary to consider
whether or not the Respondent violated the Act by failing to rehire
Reynolds following the 90-day layoff period prescribed in the contract,
because of her alleged failure to make application for a job . However, in
the event any reviewing authority does not agree with my findings on this
issue, I wish to state that I do not find persuasive the Respondent's
position that it has failed to rehire Reynolds only because she has failed to
indicate her desire for employment since April 3 (the end of the 90-day
period ). Clearly, she indicated such desire as early as February 10, and
nothing occurred in the intervening period to change such evidence of
desire . Moreover , the record shows that Respondent has, with respect to
other employees , notified them of employment through present employees.
(See testimony of Williams.) Indeed , it recalled Reynolds to work in 1965.
Accordingly, I would, in any event, find a discriminatory refusal to recall
or rehire as of April 14, when , the records show , Respondent first hired a
slat layer , a classification in which Reynolds was admittedly qualified
Conclusions of Law
849
1. Highland Crate Cooperative, Respondent herein, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By engaging in certain described conduct referred to
hereinabove in section III, B, Respondent interfered with,
restrained , and coerced its employees in the exercise of
rights guaranteed them under Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By refusing to recall to employment its employee
Annie B. Reynolds , as described hereinabove in section
III, C, Respondent discriminated against an employee in
order to discourage membership in the Union and thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have
been specifically found , as set forth above, the General
Counsel has failed to establish by a preponderance of the
evidence the remaining allegations of the complaint
herein , and it will be recommended that the said
complaint be, to that extent , dismissed.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily refused
to recall Annie B. Reynolds in the manner set forth
hereinabove, I shall recommend that the Respondent offer
Annie B. Reynolds immediate and full reinstatement to
her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and that she be made whole for any loss she may have
suffered by reason of discrimination against her. Backpay
shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices
committed, I shall recommend that the Respondent be
ordered to cease and desist therefrom in any manner
infringing upon rights guaranteed to its employees by
Section 7 of the Act. Entwistle Manufacturing Company,
23 NLRB 1058, enfd. as modified 120 F.2d 532 (C.A. 4).23
Upon the basis of the entire record, the findings of fact,
and the conclusions of law and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
The Respondent, Highland Crate Cooperative, its
officers , agents, successors , and assigns , shall:
"In its brief, Respondent contends that the Board should not exercise its
jurisdiction in this case , but should rather refer the matter for decision
under the grievance and arbitration provisions of its collective- bargaining
agreement. For reasons set forth by the Board in C & S Industries, Inc ,
158 NLRB 454, 459-460, this contention has no merit as respects the facts
and issues in the instant case
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Advising employees that they will be recalled from
layoff if they abandon their union affiliation or support.
(b) Advising employees that another employee will not
be recalled from layoff because of her union activities.
(c) Threatening employees with layoff unless they
induce the Union to withdraw the charges which have
been filed with the National Labor Relations Board.
(d) Discouraging membership in, or activities on behalf
of, Local 589 , Retail , Wholesale and Department Store
Union , AFL-CIO, or any other labor organization, by
refusing to recall laid - off employees or otherwise
discriminating against employees with regard to their rates
of pay , wages, hours of employment , hire, tenure of
employment , or any term or condition of their
employment.
(e) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right of
self-organization , to form , join, or assist the above-named
labor organization , or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Annie B. Reynolds immediate and full
reinstatement to her former or substantially equivalent
position , without prejudice to her seniority or other rights
or privileges , and make her whole for any loss of earnings
she may have suffered by reason of the discrimination
against her , in the manner set forth in the section of this
decision entitled "The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of her
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Jacksonville , Florida , plant , copies of the
attached notice marked "Appendix ."" Copies of said
notice, to be furnished by the Regional Director for
Region 12, shall after being duly signed by the
Respondent ' s representative , be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(e) Notify the Regional Director for Region 12, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 12 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
All our employees have the right to join or support a
labor union. WE WILL NOT in any manner interfere with
their exercise of this right. Specifically, WE WILL NOT
advise employees that they will be recalled from layoff
if they resign from or refuse to join or support a labor
union . WE WILL NOT advise the employees that other
employees will not be recalled from layoff because of
their union activities. WE WILL NOT threaten employees
with layoff unless employees induce the union to
withdraw unfair labor practice charges filed with the
National Labor Relations Board. WE WILL NOT
discourage membership in Local 589, Retail, Wholesale
and Department Store Union, AFL-CIO, or any other
labor organization, by refusing to recall employees on
layoff, or otherwise discriminating against any of our
employees.
WE WILL offer Annie B. Reynolds her former or
substantially equivalent job (without prejudice to her
seniority or other rights and privileges), and WE WILL
pay her for any loss because of our discrimination
against her.
WE WILL notify Annie B. Reynolds if presently
serving in the Armed Forces of the United States of her
right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military and Training and Service Act, as
amended , after discharge from the Armed Forces.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named Union, or any other labor organization.
Dated By
HIGHLAND CRATE
COOPERATIVE
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, Room 706,
Federal Office Building , 500 Zack Street, Tampa, Florida
33602, Telephone 813-353-7507.