Huttig Sash and Door Co.

National Labor Relations Board - Board Decisions

Nov 12, 1968

173 N.L.R.B. 770 (N.L.R.B. 1968)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huttig Sash and Door Company, H S D Corporation,
and Lumbermen ' s Supply Company and Drivers,
Chauffeurs and Helpers Local Union 886, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 16-CA-3137
November 12, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On May 23, 1968, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices, and recom-
mending that they cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondents filed exceptions to the Trial Examiner's
Decision and a supporting 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
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
THE REMEDY
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial year of certification
as beginning on the date the Respondents commence
to bargam in good faith with the Union as the
recognized bargaining representative in the appro-
priate unit. See Mar-Jac Poultry Company, Inc, 136
NLRB 785; Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A.
5), cert. denied 379 U.S. 817, Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondents, Huttig Sash and Door
Company, H S D Corporation and Lumbermen's
Supply Company, Oklahoma City, Oklahoma, their
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LiBBIN, Trial Examiner. Upon charges filed on
October 26, November 7, and December 11, 1967, and
January 26 and February 21, 1968, by Drivers, Chauffeurs and
Helpers Local Union 886, Affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 16 (Fort Worth, Texas), issued
an amended complaint, dated February 21, 1968, against
Huttig Sash and Door Company, HSD Corporation, and
Lumbermen's Supply Company, herein collectively called the
Respondents. With respect to the unfair labor practices, the
amended complaint alleges in substance that since November
1967, Respondents refused to bargam, upon request, with the
Union after it had been certified as bargaining representative
in an appropriate unit, refused to rehire Charles Lowman,
engaged in specified acts of interference, restraint and co-
ercion, and by the foregoing conduct violated Section 8(a)(1),
(3), and (5) and Section 2(6) and (7) of the Act. In its duly
filed answer, Respondents deny all unfair labor practice
allegations.
Pursuant to due notice, a hearing was held before Trial
Examiner Louis Libbin at Oklahoma City, Oklahoma, on
March 27 and 28, 1968. All parties appeared at the hearing by
counsel, participated therein, and were given full opportunity
to adduce relevant evidence, to examine and cross-examine
witnesses, to argue orally on the record, and thereafter to file
briefs
For the reasons hereinafter indicated, I find that Respond-
ents violated Section 8(a)(1), (3), and (5) of the Act.
Upon the entire records in the case, and from my
observation of the demeanor of the witnesses while testifying
under oath, I make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENTS
Respondents, Huttig Sash and Door Company, HSD
Corporation, and Lumbermen's Supply Company are Delaware
and Oklahoma corporations, respectively. Huttig Sash and
Door Company has its principal offices in St. Louis, Missouri,
and various other plant facilities in the States of Missouri,
Montana, North Carolina, Virginia, and Texas, where it is
engaged in manufacturing and distributing mill work and
building products HSD Corporation and Lumbermen's Supply
Company have their offices and principal place of business in
i Inadvertent errors in the typewritten transcript of testimony have
been noted and corrected
173 NLRB No. 118
HUTTIG SASH AND DOOR CO.
Oklahoma City, Oklahoma, where they are engaged in manu-
facturing and distributing mill work and building products.
Respondents' plant in Oklahoma City, Oklahoma, is the only
plant involved in this proceeding.
During the 12 months preceding the issuance of the
amended complaint, Huttig Sash and Door Company sold and
distributed products from its plants in Missouri, Montana,
North Carolina, Virginia, and Texas, directly to points located
in other States of the United States, which products shipped
from each State were valued in excess of $50,000.
During the period from October 31, 1966, to October 31,
1967, Lumbermens Supply Company, the proprietor of the
plant now operated by Respondents, made purchases of goods
and materials from outside the State of Oklahoma valued in
excess of $50,000, which goods and materials were shipped
from points located outside the State of Oklahoma directly to
its plant in Oklahoma City, Oklahoma, during the same period,
Lumbermens Supply Company made sales of its product to
customers valued m excess of $500,000.
Respondents HSD Corporation and Lumbermen's Supply
Company, in the course and conduct of their business
operation after November 1967, at the Oklahoma City plant
hereinabove mentioned purchased goods and materials from
points located outside the State of Oklahoma valued in excess
of $50,000, which goods and materials were shipped directly
to the above-mentioned Oklahoma City plant.
Upon the above-undisputed facts, I find that Respondents
are engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that
the Union listed in the caption of the amended complaint is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction, the Issues
The Union was certified by the Board on October 6, 1967,
as the exclusive collective bargaining representative of an
all-employee unit for the employees of Lumbermen's Supply
Company, the proprietor of the plant now operated by
Respondents in the manufacture and distribution of mill work
and building products. With full knowledge of this certifica-
tion, Respondents on October 20, 1967, executed a contract
with said Employer for the purchase of its business assets. The
transfer of said assets took place on October 31, 1967, and the
following day, with no break in continuity, the Respondents
assumed operations of the business with the identical super-
visory staff, including the plant manager, and virtually the
same work force except for Charles Lowman, a truckdriver
whom Respondents refused to hire. Thereafter, Respondents
refused, upon request, to meet and bargain with the Union or
to recognize it as their employees' bargaining representative.
Instead, Respondents unilaterally, and without consulting or
informing the Union, granted wage increases to their em-
ployees.
The principal issues litigated in this proceeding are (1)
whether Respondents are a successor employer so as to render
their refusal to recognize and bargain with the certified Union
771
a violation of Section 8(a)(5) and (1) of the Act, (2) whether
Respondents' admitted supervisors and attorney engaged in
acts of interference, restraint and coercion within the meaning
of Section 8(a)(1) of the Act, including interrogation, promises
of benefits, threats of economic reprisals and wage increases,
and (3) whether the failure and refusal to employ Charles
Lowman was discriminatorily motivated in violation of Section
8(a)(3) and (1) of the Act.
B. The Refusal To Bargain
1. The requests and refusals
On September 28, 1967, the Board's Regional Director
conducted an election in the following unit of the employees
of the then existing Lumbermens Supply Company: "All
employees of the Lumbermens Supply Company in Oklahoma
City, Oklahoma, including warehousemen, mill workers and
truckdrivers" but "excluding salesmen, office employees,
guards, watchmen and supervisors as defined in the Act " The
tally of ballots shows that all nine eligible voters cast their
ballots for the Union, which was then certified as the exclusive
bargaining representative on October 6, 1967.
By letter dated November 8, 1967, to Respondents'
Attorney Gardner, the Union's Attorney McCaffrey requested
a meeting "at a mutually satisfactory date" to discuss the
employment status of C W. Lowman and to discuss arrange-
ments for dates for further negotiation sessions for the purpose
of finalizing a collective bargaining agreement Having been
previously instructed by Respondents' Plant Manager Poteet to
direct his bargaining request to Respondents' attorney, George
Gardner, in Roanoke, Virginia, Union President Pannell on
November 20, 1967, telephoned Gardner at his office in
Roanoke, Virginia, and requested a meeting "to discuss the
employment status of Charles Lowman" and "to discuss a
labor contract in regard to wages, hours and working condi-
tions of the employees employed in the Oklahoma City" plant
Gardner replied that he would be in Oklahoma City on
December 4 at which time he would be glad to meet and
discuss these matters with Pannell. Thereafter, Pannell made a
reservation for the parties to meet at the Holiday Inn in
Oklahoma City. About 3 p.m. on December 4, 1967, Gardner
telephoned Pannell at the latter's office in Oklahoma City and
advised that he would not meet with Pannell because he felt
Respondents were not obligated to bargain with the Union
Pannell took issue with him but Gardner adhered to his
position and stated that Pannell had a right to file unfair labor
practice charges.
As hereinafter found in more detail, about December 15,
1967, Plant Manager Poteet called Respondents' employees
into his office, individually, and informed them of a wage
increase which Respondents were granting retroactive to the
preceding pay period
2. Contentions of the parties
The foregoing facts are not in dispute The General Counsel
contends that Respondents are the successor to the original
Lumbermens Supply Company for whose employees the
Union was certified as the exclusive bargaining representative,
that "the Employer - employee relationship, the industry and
the employee unit remained intact, and that under well
established precedents the duty to bargain with the [Union]
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters devolved upon the Respondents as the Successor
Employer in a continuing industry." He therefore asserts that
Respondents' admitted conduct in refusing to recognize the
Union as exclusive bargaining representative of their employees
in the certified unit, in refusing to meet and to negotiate with
the Union as such representative, and in unilaterally granting
wage increases to the unit employees, constitutes a refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act
Counsel for Respondents does not take issue with the facts
hereinabove set forth and with the precedents requiring a
successor Employer to honor and be obligated by a union's
certification as exclusive bargaining representative in an appro-
priate unit of the employees of a predecessor Employer He
contends, however, that (1) Respondents are not the successor
to the old Lumbermens Supply Company and therefore are
not obligated to honor the Union's certification and to bargain
with it, and (2) that in any event the certified unit is not an
appropriate unit for Respondents' employees. He therefore
asserts that for the foregoing reasons Respondents' admitted
refusals and unilateral action is not violative of the Act
I will now treat with these contentions
a. The successorship issue
As previously noted, with full knowledge that the Union
had won a Board election among the employees of the original
Lumbermens Supply Company, Respondent Huttig Sash and
Door Company, herein sometimes called Respondent Huttig,
on October 20, 1967, executed a contract with said Lumber-
mens Supply Company to purchase, either by itself or through
a subsidiary, the latter's assets and name, contingent upon an
agreed upon transfer of the inventory. By letters dated that
same day, Lumbermens Supply Company advised its creditors
that "we have entered into a contract with Huttig Sash and
Door Company, 8900 Page Boulevard, St. Louis, Missouri, to
sell them our stock of merchandise and certain other assets,
including our name. They will continue the business at the
same location" [emphasis supplied]. On October 27, 1967,
Respondent Huttig formed Respondent HSD Corporation to
take title to the assets referred to in the purchase agreement
and "to conduct a general sash and door business " The
transfer to said assets took place on October 31, 1967, and the
operation of the business of Lumbermens Supply Company
was continued the next day by the purchaser without any
break in the continuity of operation or in the service and
wages of the supervisory staff and work force taken over by
the purchaser On November 1, 1967, the Board of Directors
of HSD Corporation proposed, and on that same day the
shareholders of said corporation unanimously adopted, a
resolution to amend the articles of incorporation to change the
name from HSD Corporation to Lumbermen's Supply Com-
pany and to increase the number of shares to be allotted by
said corporation. On November 6, 1967, the original Lumber-
mens Supply Company, the seller herein, through the Secre-
tary of the State of Oklahoma, consented to the use of its
name or a sinular name by HSD Corporation. On November
17, 1967, HSD Corporation amended its articles of incorpora-
tion to rename the corporation, Lumbermen's Supply Com-
pany, and to reflect subscriptions of 5,000 shares of common
stock issued as follows- 4,997 shares to Respondent Huttig by
President R. F. Eason, one share to the said R. F. Eason,
individually, and one share each to D. Montgomery and to W
E. Waller, officers of Respondent Huttig. The signatory for
HSD Corporation and for Huttig Sash and Door Company is
the common president, R. F. Eason.
The value of the inventory sold by the old Lumbermens
Supply Company under the contract of sale which had been
executed with Respondent Huttig was approximately
$200,000. Harold L. Cullen, vice president of the seller and the
signatory to the contract of sale, testified that this represented
approximately 85 percent of the inventory on hand at the time
of the sale. However, the contract of sale specifically limited
the purchaser to a $20,000 value exclusion of the inventory on
hand at the time of sale and provided that the rejected
merchandise shall consist of "obsolete, damaged, defective,"
materials, " or may consist of discontinued patterns and/or
sizes or thicknesses or may otherwise not be readily market-
able for reasons other than generally recognized seasonal
fluctuations in demand."' All machines and equipment on
hand at the time of the sale, including two fork lift trucks,
were sold for $12,000, and all the furniture and fixtures on
hand at the time of the sale, including office machinery, were
sold for $9,500. The stationery and office forms on hand at
the time of the sale, including a recent purchase of a 2-year
supply of invoices, all of which contained the name of the old
Lumbermens Supply Company, were also sold.
All the records of the seller, except some personal records,
remained on the prenuses and in the possession of Respond-
ents. In addition, the accounts receivable and accounts payable
records remained with Respondents Under the terms of the
contract of sale, the purchaser, "for accommodation only,"
was to collect the accounts receivable and to pay the accounts
payable in the name of the seller, the old Lumbermens Supply
Company, and was to make an accounting thereof
Both the old Lumbermens Supply Company (the seller
herein) and the Respondents operate out of the same building
and premises, and in each case these were and are leased from
the same lessor at substantially the same rent. There is no sign
on the building to indicate that Respondent Lumbermen's
Supply Company is a branch or subsidiary of Respondent
Huttig Sash and Door company. The same vehicles used by the
seller, including trucks, pickups, vans and bobtails, are used by
Respondents, and in each case they were and are leased from
the same lessor. The trucks still have the words "Lumbermens
Supply" on them but not "Huttig Sash and Door " The same
signs on the buildings and trucks have been there since the old
Lumbermens Supply Company had them.
The old Lumbermens Supply Company, the seller herein,
had a bank account against which payroll and business checks
were issued. Since the sale, Respondents have the same bank
account, with the exception that the magnetic accounting
number imprinted on the check is different. The supervisors
with authority to sign checks for the old Lumbermens Supply
Company are the same supervisors who sign checks for
Respondents.
Sometime prior to October 30, 1967 W E. Poteet, plant
manager of the old Lumbermens Supply Company, distributed
to the employees, and mailed to those not present, a notice,
addressed to "All Employees," and stating that "A
2 The materials which were rejected by the purchaser remained in
the possession of Cullen-Homes , Inc , a corporation formed by the seller
after it had consented to the use of its name by HSD Corporation.
Cullen-Homes , Inc., is not an operating company and was formed for
the purpose of liquidating the materials which the purchaser rejected
and to collect the seller's accounts receivable.
HUTTIG SASH AND DOOR CO. 773
representative of Huttig Sash and Door Company will be taking
applications for employment Monday and Tuesday October
30th and 31st" at the plant office. Pursuant to this notice, F.
J. Schweitzer, assistant to the President of Huttig Sash and
Door Company at St. Louis, Missouri, came to Oklahoma City
and on the stated days interviewed all the employees and
supervisors who wished to be retained by the purchasei.
Manager Poteet, all other supervisors, and all rank-and-file
employees who were employed at the time of the sale, were
terminated by the seller as of the end of October 31, were then
rehired by Respondent Huttig for the same respective jobs and
at the same rate of pay, and began working in the same
capacities for Respondent Huttig as of November 1, without
any break in service or in pay 3 Among those rehired and who
continued to work for Respondents were all the eligible voters
who voted in the election of September 28, 1967, with the
exception of Charles Lowman The same supply of timecards
were used for the hourly employees, although they were
changed in the rack on November 1 The same bookkeeping
system that existed before the sale is used by Respondents and
the office is managed by the same office manager.
The same vacation, sick leave, and overtime policies of the
old Lumbermens Supply Company were continued by Re-
spondents. Respondents credited employees with time accrued
with the old company in determining the duration of the
vacation due them, and paid all employees the overtime
premium pay earned in the week of transition, based upon the
total hours worked without regard to the number of hours
worked for each company.
Respondents manufacture the same products as the seller
with the exception of a prehung door unit, which Respondents
began to manufacture about a month before the instant
hearing. This is an assembled unit, and the machine used to
assemble these units consists of a table with fixed tools which
do the job which could be done by hand tools. The remainder
of the products handled by Respondents are composed of the
same materials as before the sale and, with the exception of
the door units machine, the identical equipment is used that
was used before the sale. Indeed, no equipment has been
moved or rearranged. Virtually the only difference between
the old Lumbermens Supply Company's inventory and Re-
spondents' inventory is that Respondents carry additional
items such as additional stair parts, an additional type of wood
paneling, prefinished plywood, plastic sheeting, polyethylene
films, a different make of bifold doors, and additional fireplace
parts. Respondents make deliveries to some of the same
customers and to new customers.
The above facts are not in dispute. They unequivocally
demonstrate that after the sale Respondents continued to
operate the identical industry at the same location and with
virtually the same equipment and facilities, with more than
substantial continuity in the business enterprise, and with the
same management and virtually the same rank-and-file per-
sonnel, all of whom continued to occupy their respective
identical positions without any break in service and paychecks
and with the same employer-employee relationship. Based on a
long line of Board and court precedents,4 I find that the
previously detailed facts clearly and unmistakably establish
Respondents as the successor to the old Lumbermens Supply
Company.
b. The appropriate unit
I find no merit to Respondents' contention that the unit is
inappropriate because of the inclusion of the truckdrivers. No
other labor organization is seeking to represent the truckdriv-
ers in a separate unit. An all-employee unit is always
appropriate, and the all-employee unit in this case has
remained intact despite the succession of owners Moreover,
the evidence adduced at the instant hearing, instead of
militating against the appropriateness of the inclusion of the
truckdrivers in the unit, further supports their inclusion. Thus,
the admitted and undisputed testimony shows that drivers on
occasion work in the warehouse when they have no driving
assignments, performing the identical work of the warehouse-
men, and that some warehousemen work as relief drivers when
the need for their services arises due to the absence of the
regular drivers. In addition, the warehousemen and truckdriv-
ers are supervised by the same persons.
I find that the certified unit remains readily identifiable and
continues to be an appropriate unit.
3. Concluding findings
I find that all employees of Respondents in the Oklahoma
City, Oklahoma, plant, including warehousemen, mill workers
and truckdrivers but excluding salesmen, office employees,
guards, watchmen and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. I
also find that at all times material herein the Union has been,
and still is, the exclusive representative of all the employees in
said appropriate unit within the meaning of Section 9(a) of the
Act.
As successor to the old Lumbermens Supply Company,
Respondents have assumed the obligation of recognizing and
dealing with their employees' majority representative. Their
"refusal to do so within a few months after the certification of
that representative, at a time when the Union's continuing
majority status was not vulnerable to attack, constitutes a
violation of Section 8(a)(5) and (1) of the Act,"5 and I so
find. I further find that Respondents' conduct in unilaterally
granting wage increases to the unit employees about the
middle of December 1967, constitutes "a circumvention of the
duty to negotiate" with the Union and hence an additional
violation of Section 8(a)(5) and (1) of the Act.6
C. Interference, Restraint, and Coercion
1. The facts
3 The only exceptions were Warehousemen Eaton and Rice, who
were not hired until February 1968 due to a slow business period, and
Charles Lowman , who is hereinafter found to have been unlawfully
discriminated.
4 See, e g , Zayre Corp., 170 NLRB No . 190, Makela Welding, Inc.,
159 NLRB 965, 971 , Martin Marietta Corporation , 159 NLRB 905;
907, 918-919, Auto Ventshade , Inc, 123 NLRB 451 , 456-457, enfd.
276 F.2d 303 (C.A. 5); Overrate Transportation Company, Inc., 157
NLRB 1185, 1186-87, 1189-90 , enfd. F.2d 765 (C A. 4), cert. denied
389 U S. 838, McFarland & Hullinger, 131 NLRB 745 -746, enfd. 306
F.2d 219 (C.A. 10), and Lunder Shoe Corporation, 103 NLRB 1322,
1324-25
5Zayre Corp., 170 NLRB No. 190 , and cases cited in in. 4
6N L R .B v. Katz, 369 U.S. 736, 743.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Attorney George Gardner discuss bettering their working conditions and to review their
salaries, and expressed the feeling that they would be drawing
more money than the rate provided in the Georgia-Pacific
contract. He cautioned however that the Company would not
be forced into anything but pointed out that "you scratch
Huttig's back and they will scratch yours." Gardner also
informed the employees that "Huttig had to close down the
St. Louis plant because there were too many unions and a man
didn't know what to pick up or do."
Gardner did not testify. Six witnesses testified for Respond-
ent with respect to Gardner's speech With respect to the
matters set forth in the preceding paragraph, these witnesses
testified as follows. Manager Poteet testified that Gardner
explained that some Huttig plants had 2-week vacation plans
and others had 3-week vacation plans but that nothing was said
as to which was union or nonunion. Warehouse Foreman
Schmidt admitted that "mention" was made that "the working
conditions would be improved," that he did not "believe"
Gardner ever stated that nonunion plants had better vacation
plans than the Union plants, and that he did not "recall"
Gardner stating that if they scratched Huttig's back they will
scratch yours. Superintendent Coker testified that "I didn't
hear" Gardner make the latter comment. Gerry Tarver, an
office employee, did not deny that Gardner made any of the
statements set forth in the preceding paragraph. Office
Manager Beesley and Superintendent Coker testified that they
did not "recall" Gardner saying that the length of the vacation
period in the Huttig plants was-related to whether they were
union or nonunion, and Assistant Plant Manager Sanders
testified that Gardner made no such relationship.
Superintendent Coker testified in more detail about
Gardner's speech than any other witness for Respondents He
admitted that among the things which Gardner stated Huttig
would do for the employees was to "review the wages to get
some increases in salary," that he stated "there would be
increases for everybody, hourly personnel, and he and Mr.
Schweitzer would be coming back at a later date to go into this
situation." Coker also remembered that Gardner mentioned
Georgia-Pacific, "another company here in town that had a
union contract," and that he stated that "we at Lumbermen's
Supply would wind up with a better deal than that they had
out there with the Union." Coker also recalled that Gardner
told the employees that "nothing would be taken away from
[what] we had, that Huttig Sash and Door would be adding to
but nothing would be taken away as far as the wages or
benefits and so forth." In response to Gardner 's question as to
whether he had promised the employees higher wages for
refraining from supporting the Union, Coker testified, "The
closest-well, I'll put it this way. The only thing that I might
remember that might pertain to that was that I believe you did
say that you believed Huttig Sash and Door Company had
taken over that they would end up with a better deal than
what Georgia-Pacific had with the Union."
Upon consideration of all the foregoing, the demeanor of
the witnesses, and the admissions of Superintendent Coker and
Foreman Schmidt, I credit the testimony of employees Allen,
Shockley, and Hoyt, and find that Gardner did make the
statements and promises hereinabove attributed to him. Based
on this testimony and the admissions of Foreman Schmidt and
Superintendent Coker, I find that Garnder promised the
employees that Respondents would see to it that without a
union their benefits would be improved and increased and
their wages raised to equal or surpass the wage rates in the
About 5 p.m. on December 4, 1967, after the employees
had punched out, George Gardner, Respondents' attorney,
addressed Respondents' employees and supervisors who were
all assembled in the conference room. The meeting lasted
about 35 minutes.
Manager Poteet introduced Mr. Gardner as Respondents'
attorney who was there to talk to them concerning the Union
There is no conflict with respect to much of what Gardner said
on this occasion Thus, Gardner stated that he had come down
from Roanoke to negotiate with the Union but that, after
discussing the matter with Mr. Cullen of the old Lumbermen
Supply Company, they had decided that the election was not
legal, that they were not going to recognize or bargain with the
Union, and that they had so notified the Union and the Labor
Board at the Fort Worth office. He further stated that there
was a possibility that they might eventually have to negotiate
with the Union but that it would take some time before that
would happen. In reply to an employee's question as to how
long it would take before the Union would be recognized and
dealt with, Gardner outlined the various steps and procedures
involved, culminating in an appeal to the Tenth Circuit Court
in Denver, and stated that sometimes it could take as much as
2 or 3 years He then stated that it was immaterial to Huttig
whether this plant was union or nonunion, that half of Huttig's
plants were union and half nonunion, and that a profit was
necessary for this plant to succeed. Gardner also told the
employees that Superintendent Coker had called his attention
to the fact that the men had lost some overtime pay because
the change in ownership took place in the middle of the week
and they had not worked 40 hours for either company
although they had worked a total of over 40 hours during the
entire week. He then announced that although Huttig felt they
were not obligated to pay it, he had received an okay from St.
Louis on the matter and that they were going to pay it right
now. Checks for the overtime pay were at that point
distributed to the assembled employees by Manager Poteet.
There is some dispute in the testimony with respect to some
of the statements made by Gardner during the course of the
remainder of his speech. Three witnesses testified for the
General Counsel in this respect, William Allen, Andre
Shockley, and Melvin Hoyt. The latter two were still in
Respondents' employ at the time of the hearing and were
testifying under subpoena in the presence of their superiors.
The following is, in substance, a composite of their mutually
consistent testimony with respect to additional statements
made by Gardner during the course of his speech, although not
necessarily in the sequence hereinafter set forth.
Gardner stated he had in his hand a copy of the union
contract of Georgia-Pacific, a competing company in Okla-
homa City, and that Huttig Sash and Door Company will equal
or do better than the wage rate in that contract. He mentioned
that he understood there was an old employee here with 13
years' seniority by the name of Bill Gray who was still
receiving $1.50 per hour, and emphasized that that was
unheard of in the Huttig organization. He also stated that each
Huttig plant had its own vacation plan, and pointed out that
he understood that the nonunion Huttig plants had longer
vacation periods and more benefits than the union Huttig
plants. After stating that he could not promise anything,
Gardner promised that he and Schweitzer, assistant to the
president of Huttig, would be back the following week to
HUTTIG SASH AND DOOR CO. 775
union contract with Georgia-Pacific, a local competing com-
pany in the city; that, while each Huttig plant made its own
vacation plans, the plans in the nonunion Huttig plants
provided for longer vacation periods than those in the union
Huttig plants, that the Company would soon review their
wages with the view of raising them and that there would be
increases for everybody; that Huttig Sash and Door would be
adding to the benefits they already had, that without a union
the employees would end up with a better deal than what
Georgia-Pacific had with a union; that if the employees
scratched Huttig's back, Huttig would scratch their back; and
that Huttig had to close down the St. Louis plant because
there were too many unions and a man did not know what to
pick up or do.
b. Manager Poteet and wage i ncreases
On the afternoon of December 12, 1967, all employees who
were present, except salesmen, were again assembled in the
conference room. Manager Poteet introduced Mr. Montgomery
as an official of Huttig Sash and Door Company Montgomery
told the employees that Mr. Schweitzer was unable to be
present, as Mr. Gardner had promised in his speech of
December 4 He then announced that there would be pay
raises for all employees, ranging from 10 to 25 cents an hour,
and that Poteet would be talking with each one individually
either that day or the next day.
About December 15, Poteet began having each employee,
individually, summoned to his office where he informed him
of the amount of the wage increase and that it was effective
retroactively as of December 8. Thus, on this occasion Poteet
asked Hoyt, a warehouse employee, if he was now getting
$1.70. When Hoyt replied in the affirmative, Poteet stated,
"well, we're going to raise you to a $1 85," and told him to
keep up the good work. Poteet told Shockley, a driver, that
the truckdrivers were getting a little more than the others and
that he was getting a 15-cent raise. He told Jackson, who had
been employed in the warehouse only since November 15,
1967, that they did not think he deserved a raise at that time
because he had not been with the company very long. He then
added that because of the good work which Jackson had been
doing, Poteet felt they could give him a 10-cent raise. Poteet
also told Allen, who first started working for the old
Lumbermens Supply Company on October 1, 1967, that the
company felt he had not been with the organization long
enough to earn a raise but that his work had been good enough
so that they decided to give him a 10-cent an hour raise.
The findings in this section are based on credited testimony
which is either admitted or undisputed.
Larry Jackson was hired by Coker on November 15, 1967
During his hiring interview by Coker in the shipping office in
the presence of Foreman Schmidt, Coker told Jackson that
"the wages here are poor" but that they "had a deal going and
the wages were going to get better" and that they "could
guarantee" him "more money within 30 days."
Although Jackson had been hired as a truckdriver, he was
nevertheless assigned to work in the warehouse. Sometime in
December when he and Mike Reynolds, another warehouse
employee, were together in the warehouse, Jackson asked
Warehouse Foreman Schmidt when he would get on the truck,
pointing out that he could not make a living in the warehouse.
Schmidt replied, in Reynolds' presence, "well, if this thing
don't go union I'll guarantee we'll be making more money than
the truckdrivers." Schmidt then added that "if it is [Union] ,
we will probably get our hours cut down."
In January 1968, a petition began circulating among the
employees in the warehouse to the effect that they "were still
backing the Union." On January 8, 1968, when Hoyt, a
warehouse employee, was in the shipping office, Schmidt
asked him, "I understand they are circulating a petition about
the Union?" When Hoyt replied in the affirmative, Schmidt
said, "I understand that you didn't sign it." Hoyt answered, "I
hadn't." Schmidt then warned that "if it does go union you
will lose some of your benefits."
That night the Union held a meeting of Respondents'
employees at the Teamsters hall. A majority of the employees,
including William Allen, attended the meeting. The next day,
January 9, when Allen and employee Reynolds were in the
glass area of the plant, Schmidt walked up and asked, "well,
how did it go last night?" Allen asked, "how did what go?"
Schmidt then said, "how did the meeting go last night?" Allen
replied, "pretty good." Schmidt then asked, "what did you
talk about?" Allen replied, "mainly we talked about who was
in support of the Union and finding out how many was in
support of the Union." Schmidt then warned, "if the Union
comes in, you know that you'll get a cut in salary." When
Allen answered "No, sir, I didn't," Schmidt pointed out that
the Ford plant was out on strike at this time and that
"someone has to pay for that." Later that same day, Schmidt
asked Allen, "what do the men have against Mr. Poteet?" Allen
replied that the men had been promised wages equal to or
better than the rates in the Georgia-Pacific contract and that
he himself had only received a 10 cents an hour raise
About January 9, 1968, Schmidt asked employee Vinson
what he knew about the paper the boys were circulating
through the warehouse to the effect that they were still
backing the Union Vinson replied that he did not know about
it but that he had heard that they were circulating a paper.
Schmidt then turned to Coker, who was standing there, and
c. Superintendent Coker and Foreman Schmidt said, "they are at it again." Coker replied, " yes, I know. All
Carrol Vinson was hired by Coker during the first week in
November 1967. During his interview by Coker in the shipping
office, Coker stated that the new company, Huttig Sash and
Door, was taking over, that the "situation" would "be a lot
better," and that the benefits and pay would now be better.
He then told Vinson that the boys had voted a union in and
asked how Vinson felt about working under a union. Vinson
replied that it made no difference to him. When Coker
volunteered that "Mr. Lowman had started the Union,"
Vinson asked "where was Mr. Lowman at now?" Coker replied
that "they had to let him go."
they are going to do is freeze everything where they won't get
no raises." Vinson later found out that the paper was to show
that the employees were still backing the Union and that the
same evening, after the paper was signed, there was a meeting
at the union hall. The next day, which was the day after the
union meeting, Schmidt asked Vinson, "What about this
meeting they had?" Vinson replied that he did not know.
Schmidt then warned, "Well, they're going full steam ahead
and that when they do get the Union in they're just going to
be getting lower wages from what they are getting now."
About January 26, 1968, Larry Jackson gave an affidavit to
a Board agent in the Union Attorney's office. The next day, he
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and employee Reynolds and Pringle were in the coffee room
discussing their wages. Schmidt came over and joined in the
conversation. Schmidt said, "well, let me tell you this, if this
thing goes Union your hours will be cut and you figure the
wages that you will be making as Union and the wages now
and you will be making a little bit more now, but your hours
would be cut from what you are making now." Schmidt then
asked Jackson if he was at the meeting last night.
The findings in this section are based on the credited
testimony, to a large extent undisputed, of employees Vinson,
Jackson, Hoyt and Allen. Schmidt admitted that he "possibly"
could have spoken to the employees about the Union but
could only recall that his conversations were, "Such as
speaking, do you think it will be better or worse or what do
you think would take its place and what the outcome would
be." Schmidt was asked by Respondents' counsel if he did
"question or interrogate any employee regarding his union
membership, his activity or desires in this matter?" In
response, Schmidt testified, "I'd have to answer the same as
the one before. I possibly could. I mean, just in a general sense.
Just carried on a conversation with them." Coker merely
answered in the negative in response to Respondents' counsel's
leading questions, framed directly from the allegations in the
complaint, relating to interrogation of and threats to employ-
ees. I do not credit the testimony of Schmidt and Coker
insofar as it may be regarded as a denial of the credited
employees' testimony hereinabove set forth.
2. Concluding findings
Attorney Gardner admitted that he was attorney of record
for Respondents at all times material herein. As such, he was
Respondents' agent for whose conduct Respondents are
responsible.7 Respondents further admit that Manager Poteet,
Superintendent Coker and Foreman Schmidt are at all times
material herein supervisors within the meaning of the Act.
Hence, Respondents are also liable for their conduct. I
therefore find that Respondents have interfered with, re-
strained, and coerced their employees in the exercise of their
guaranteed rights in violation of Section 8(aXl) of the Act by
the previously found conduct of the above-named individuals
in the following respects.
(1) By interrogating employees in the context and under
the circumstances previously detailed. See, e.g., Avondale
Shipyard, Inc. v. N.L.R.B., 391 F.2d 203 (C.A. 5), enfg 162
NLRB 421, Serv-Air, Inc. v. N.L.R.B., 401 F.2d 363, (C.A.
10), enfg. 161 NLRB 1369 (TXD). This includes the conduct
of:
Coker in questioning employee Vinson about his union
sympathies during his hiring interview in the first week of
November 1967; and
Schmidt in (a) questioning Hoyt on January 8, 1968, about
a petition which the employees were circulating in the
warehouse to declare their continued support of the Union and
as to whether it was true that Hoyt had not signed the
petition, (b) interrogating Allen about January 9, 1968, in the
presence of another employee, about a meeting of the Union
held the preceding night and as to what was said at that
meeting, (c) interrogating Vinson about the same time on one
7See, e.g ., Fennel 's Auto & Body Works, Inc., 171 NLRB No 10,
Valley Gold Daines, Inc , 152 NLRB 1471 , and Ntskayuna Consumers
Cooperative, Inc., 155 NLRB 170, 180 , enfd. 376 F .2d 260 (C.A 2).
occasion concerning the circulation of the employee petition
to be taken to the Union hall declaring those still backing the
Union, and on another occasion interrogating him about the
union meeting held the preceding night, and (d) interrogating
Jackson about his attendance at a meeting in the Union
Attorney's office where affidavits were taken by a Board
agent.
(2) By promising additional economic benefits, including
wage increases and longer vacation periods, to refrain from
continuing to seek and to support the Union as their
bargaining representative. This includes the conduct of
Schmidt in telling Jackson in December 1967, in the
presence of another employee, that "if this thing don't go
Union, I guarantee we'll [referring to the warehouse employ-
ees] be making more money than the truckdrivers", and
Attorney Gardner in telling all the assembled employees in
his speech on December 4, 1967, that Respondents had
decided not to recognize or negotiate with the Union but that
(a) Respondents would improve and increase their benefits
and raise their wages to equal or surpass the rates in the
contract which the Union had with Georgia-Pacific, a local
competing company, (b) Respondents would soon review all
their wages and there would be increases for everybody, and
(c) that he understood that the vacation plans in the nonunion
Huttig plants provided for longer vacation periods than the
plans in the union Huttig plants. I find that the latter
statement, under all the circumstances, reasonably tended to
create the impression or belief among the employees that their
vacation period would be increased without the Union in the
plant.
I find that the foregoing promises of additional benefits,
coming as they did immediately after Gardner announced
Respondents' decision not to recognize or deal with the Union
even if it took 2 or 3 years to process this proceeding up to
and through the Tenth Circuit Court of Appeals and after the
distribution of the overtime paychecks which Gardner an-
nounced Respondents were not obligated to pay, were clearly
intended and understood as inducements to the employees to
refrain from continuing to seek and to support the Union as
their bargaining representative. Any doubts in this respect were
clearly dispelled by Gardner's warning that the Company
would not be forced into anything but that if "you scratch
Huttig's back, (and) they will scratch yours." That the
employees got the message is further demonstrated by Coker's
admission, in response to Gardner's question on this very
point, that Gardner stated the employees "would end up with
a better deal than what Georgia-Pacific had with the Union."
Under the circumstances disclosed by this record, I find that
the coercive nature and effect of Gardner's promises were
neither neutralized nor dissipated by his additional comments
that it made no difference to Huttig whether or not the plant
was union and that half of Huttig's plants were union.
(3) By threats of economic reprisals, including a cut in
wages and hours of work, if the Union became the employees'
recognized bargaining representative. This includes the conduct
of:
Gardner in telling the assembled employees in his speech on
December 4, 1967, that Huttig had to close down the St. Louis
plant because there was too many unions there. I find that this
statement reasonably tended to convey to the employees a
threat of the possible closing of the plant if the Union became
the recognized bargaining representative;
Schmidt in (a) telling Jackson in December 1967, in the
HUTTIG SASH AND DOOR CO.
presence of another employee, that if the plant goes union "we
will probably get our hour cut down," (b) telling Hoyt on
January 8, 1968, that "if it does go union, you will lose some
of your benefits," (c) telling Allen about the same time, in the
presence of another employee, that "if the Union comes in,
you know that you'll get a cut in salary," (d) telling Vinson
about the same time that "when they do get the Union in,
they're just going to be getting lower wages from what they are
getting now," and (e) telling Jackson on January 26, 1968, in
the presence of two other employees, that "if this thing goes
union, your hours will be cut and you will be making less
money"; and
Coker in stating to Schmidt on January 9, 1968, in the
presence of employee Vinson, that all the employees are going
to accomplish by circulating the petition that they were still
backing the Union was to "freeze everything where they won't
get no raises."
(4) By announcing and granting wage increases about the
middle of December 1967, under the circumstances and in the
context previously detailed. This involves the conduct of:
Montgomery, an admitted official of Respondents, in
announcing to the assembled employees on December 12,
1967, pay raises ranging from 10 to 25 cents an hour, thereby
fulfilling Gardner's promises in his speech on December 4; and
Poteet in calling the employees into his office, individually,
a few days later and informing them, including those who had
been employed but a short period, of the amount of their raise
and that it was retroactive to December 8, 1967.
Respondents' effort to create the impression that the wage
increases were automatic for employees completing the proba-
tionary period fell flat on its face Schweitzer testified that
when he interviewed the employees on October 30 and 31, he
told some employees that they were being hired on a trial basis
at the old rate but that necessary allowances would be made as
the trial period rolls along. I do not credit this testimony as it
is refuted by the overwhelming weight of the evidence. No
witness corroborated Schweitzer in this respect, on the other
hand, witnesses for both the General Counsel and the
Respondents, including Poteet who was present at many of
these interviews, affirmatively testified that neither the word
"probationary" nor "temporary" was used by Schweitzer.
Significant in this respect is the testimony of Respondents'
witness Tarver, despite the fact that she was tipped off to the
desired answer by Gardner's leading question to which an
objection was sustained. In addition, the testimony was
undisputed that nothing was said about a "probationary"
period when Montgomery announced the wage increases on
December 12, 1967, and when Poteet a few days later
informed the employees individually of the amount of their
retroactive wage increase.
Viewed in the light of Gardner's previous promises and his
comparisons with the rates in the contract which the Union
had with Georgia-Pacific, as previously detailed, I am con-
vinced and find that the raises were intended, and the
employees could reasonably infer that they were granted, as
inducements to refrain from continuing to seek and to support
the Union as their bargaining representative. Respondents'
unsuccessful effort to assert a transparently false reason for the
raises verifies and strengthens the soundness of this finding.
That the announcement and grant of the wage increases under
these circumstances constitute a violation of Section 8(a)(1) of
the Act, independent of its unlawful aspect based on Respond-
ents' unilateral conduct, is now well established N.L.R.B. v.
777
Exchange Parts, 375 U.S. 405, J. C. Penney Co., Inc. v.
N.L.R.B., 384 F.2d 479, 484-485 (C A. 10), and Kellwood
Company, Southern Division, 170 NLRB No. 184.
D. Discrimination in Hire and Tenure
of Lowman's Employment
Charles Lowman was hired by Superintendent Coker and
began working for the predecessor Lumbermens Supply
Company as a truckdriver in June 1967 His employment was
terminated by Manager Poteet in the week of October 23,
1967. On October 31, 1967, Schweitzer interviewed Lowman
and refused to employ him for Respondents. Lowman was 44
years old at the time of the instant hearing.
1. Union activities of Lowman8
In August 1967, while he was on a delivery trip to Shawnee,
Oklahoma, Lowman talked to a tmckdriver employed by
Georgia-Pacific, a local competing company which had a
contract with the Union. During the course of their talk, the
truckdriver discussed the Union with Lowman, told him about
the union benefits, and gave him the name of Teamsters Union
Representative Hyding. When he returned to the plant,
Lowman talked about a umon to some of the other employees,
and the consensus was that a union could improve their
working conditions. Lowman then contacted Union Represent-
ative Hyding and inquired about the procedure for getting a
union in the plant. Hyding advised Lowman to get as many
employees as he could to attend a meeting. Lowman talked to
the employees about attending an organizational meeting and
then arranged such a meeting after work. At this meeting
about the middle of August, Hyding explained the benefits the
employees would gain from union representation and had a
copy of the Georgia-Pacific union contract. Lowman and some
other employees signed union authorization cards at this
meeting. Lowman also took some blank authorization cards
back to the plant where he distributed them to other
employees, collected the signed cards from the employees, and
turned them in to the secretary at the union hall.
As previously noted, the Union was unanimously designated
as bargaining representative in a Board election and was
certified by the Board as such representative on October 6,
1967. At a umon meeting held the following week, Lowman
was elected job steward and a member of the negotiating
committee. The next day, Hyding informed one of the officers
of Respondents' predecessor of the positions to which Low-
man had been elected. Superintendent Coker regarded Low-
man as responsible for having brought the Union in the plant
and referred to him as a union "leader" and "troublemaker."
2. Employment termination of Lowman
As previously found, Lowman received in the mail from
Respondents' predecessor a letter, dated October 23, 1967,
and signed by Manager Poteet, which stated-
Effective October 31, 1967, we are quitting business and
will have no need for your services.
We will pay you for 48 hours this week.
8 The finding in this section is based on credited testimony which is
wholly undisputed.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His last day of work was on Friday, October 27, 1967.
Lowman was the only employee terminated by Respondents'
predecessor prior to October 31, the last day of its operation.
The only reason which Poteet admittedly ever gave Lowman
for his termination was that the business was being sold to a
new company.
Poteet testified that Lowman was terminated and not
recommended by him for rehire by Respondent Huttig because
of alleged customer complaints against Lowman. Poteet's
testimony relating to three alleged customer complaints is, in
substance, as follows- The first alleged complaint which Poteet
investigated occurred about a month before Lowman's termi-
nation. It involved the Banks Lumber Company in Enid,
Oklahoma, and related to the fact that Lowman had unloaded
an order during the noon hour when the yard help was absent
instead of waiting for their return from lunch, with the result
that the merchandise was not placed in the location desired by
the customer. Banks had expressed a preference not to have
Lowman make any more deliveries. The second alleged
complaint involved a customer in Jones, Oklahoma. Although
Poteet investigated the complaint and talked to the customer's
manager, he did not know or remember the details nor did he
know which of these two alleged complaints occurred first.
The third alleged complaint involved a customer in McAlester
and was reported to Poteet by a salesman. Poteet did not
investigate and also could not recall the nature of this
complaint.
Poteet admitted in his testimony that at no time did he ever
so much as mention any of these alleged complaints to
Lowman. He admitted that there was no criticism of Low-
man's work in any other respect. Contrary to his further
testimony that drivers were permitted to wait at a customer's
place without any maximum time limit and were not criticized
for the amount of time spent, employee Allen credibly
testified without contradiction that he was reprimanded by
Coker on one occasion for spending too much time unloading
an order at a customer's yard.
Lowman testified that there had been only two customer
complaints against him during his entire employment. His
testimony with respect thereto is in substance as follows-
With respect to the first one, Coker told Lowman that he
had a complaint from Banks Lumber Company that Lowman
had unloaded an order during the noon hour when the
customer's employees were gone for lunch. Lowman there-
upon explained that if he had waited, it would have cost him
an hour's time and this waiting time is reflected on the clock in
the truck, called a tachometer. Coker replied that the customer
should expect the order to be unloaded and left "when they
close up for the lunch hour." A few days later, after Coker had
read the clock tape, he told Lowman that he was a new man
and that in time he would learn to leave the plant so that his
arrival at Banks would not be at lunch time. Thereafter,
Lowman delivered orders to Banks several times without
further incident.
The other incident involved a customer in Jones. When
Lowman unload an order on this occasion, the yard manager
made a comment adversely to the union activity at Lumber-
mens Lowman thereupon stated that he favored unionism and
that that was the only way "a man could get a working wage."
When this was reported to Lumbermens, Coker told Lowman
that "he didn't want us to talk about the Union while we was
out around customers," that "it wasn't right," and that "it
might cause some hard feelings between Lumbermens and
them."
Lowman's version with respect to the above incidents
stands uncontradicted. Although Coker testified as a witness
for Respondents, he did not testify with respect to Lowman's
work record, any customer complaints, or any other circum-
stances of Lowman's employment Nor did any customers
testify with respect to any alleged complaints. Under all the
circumstances, including Poteet's admission that he could not
recall the nature of and did not investigate the alleged third
customer complaint, I credit Lowman's testimony that there
were only two customer complaints and his version relating to
them.
3 Refusal to reemploy Lowman
Lowman received by special delivery the same notice from
Poteet which he had distributed to all Lumbermens' em-
ployees, stating that "a representative of Huttig Sash and Door
Company will be taking applications for employment Monday
and Tuesday October 30 and 31" at the plant. Pursuant to this
notice, Lowman arrived at the plant on October 31 and filled
out an application in the waiting room for a truckdriver's
position. Schweitzer and Poteet then went into the office with
Lowman's application while Lowman remained in the waiting
room. Lowman was then called into the office where Schweit-
zer and Poteet were present. They were looking at his
application. Schweitzer asked if he ever drank, Lowman
replied that he did and that he had been intoxicated twice. He
could not remember if Schweitzer asked about Lowman's
church. Nothing was said about any customer complaints or
about his handling of freight, or about wages, or about his
work record either with Lumbermens or with prior employers.
Schweitzer then stated that the truckdriver's position had been
filled, that they were bringing in about 13 employees to fill the
vacancies, and that if Lowman was out of work in the spring
when business picked up Schweitzer would consider him again
Lowman then asked Poteet why he had been laid off at
Lumbermens. The only reason Poteet gave was that the
Company had been sold and was under new management.9
Poteet and Schweitzer testified that before receiving Low-
man's application, Poteet had recommended to Schweitzer
9 The findings in this paragraph are based on the credited testimony
of Lowman who impressed me as a sincere , candid and trustworthy
witness. The only significant respect in which Schweitzer 's version
differs, relates to the reason he gave for not hiring Lowman. Schweitzer
testified that the reason he gave Lowman for not hiring him was "that
he had a poor work record," that "we had ample employees," and that
"due to a poor work record there was no opportunity for him."
However, the testimony of Poteet, who admittedly was present during
the entire interview , not only does not refute Lowman's version but
tends to corroborate it and to refute Schweitzer's version. Thus, Poteet
testified Lowman was told "that we couldn't hire him at the time but
later on if we decided to hire him we would get in touch with him,"
that "I do not recall him [Schweitzer] telling him [Lowman] that "he
had a poor work record," and that "I do not recall" what reason
Schweitzer gave for not hiring him at that time. Poteet did not deny
Lowman's testimony relating to Poteet's reason for laying off Lowman.
Upon consideration of the foregoing and the demeanor of the witnesses,
I do not credit Schweitzer's contrary version.
HUTTIG SASH AND DOOR CO. 779
against hiring Lowman because of customer complaints on
him. Schweitzer admitted that the customer complaints were
not discussed "to any noticeable degree." Poteet further
testified that Coker had made the same recommendations for
the same reason. However Coker did not corroborate Poteet in
this respect. In any event, Schweitzer admitted that it was his
own independent decision not to hire Lowman and that his
decision in that regard "was based purely on the interview and
the application."
Schweitzer testified that the reason he did not hire Lowman
was because his application disclosed, as Schweitzer's notations
thereon state, a prior "poor work record" and because
"drinking is [a] problem to him." The application, under the
topic heading "Former Employers," requests the applicant to
list the last four employers beginning with the last one and
including the period of employment, the salary, position and
reason for leaving. Lowman's application lists his first period
of employment in Eureka, California, as a security guard at
$1.25 per hour. It discloses that his next position was as a
truckdriver with Clinton Logging Company in Glendale,
California, at $2.25 per hour, that he left this position because
he moved back from California to Oklahoma City, that his
third position was with McKesson & Robbins in Oklahoma
City as a truckdriver at $1.85 per hour, that he left this
position because "they quit operating tractor and trailer on
deliveries," and that his last position was with Respondents'
predecessor as a truckdnver at $1.50 per hour. Schweitzer
testified that what he meant by a prior "poor work record"
was that the jobs listed on his application show a "decel-
erating" rather than an increasing "wage structure." Lowman's
second job shows an increase in wages but his last two jobs
show a decrease. Schweitzer admitted that wages are higher in
certain areas in California than in Oklahoma City and that it
would have a bearing on the decelerating wage if a man moved
from a high income area to a low income area. However, he
further admitted that he neither considered the geographical
area nor the prevailing wage levels in these areas in Lowman's
case. That the wage structure was not a relevant consideration
in the decision not to hire Lowman is demonstrated by the
absence of a place for wage information on the applications of
the latest employees hired by Respondents and by the absence
of the wage information on numerous applications of old
employees who were rehired by Schweitzer.
Schweitzer also testified that Lowman's application shows
that he had too many jobs and was "floating" because "there
had been periods between jobs that he had no work."
However, his application does not show any extensive periods
when he was out of work and in each case discloses a valid
reason for the change in jobs, reasons to which Schweitzer gave
no consideration. Moreover, according to the credited and
uncontradicted testimony of Allen, he was hired, despite
Schweitzer's comment during the hiring interview that his
application shows that "he had quite a few jobs."
With respect to the alleged drinking "problem," Schweitzer
testified that during the interview Lowman "volunteered the
information" that "there had been a couple of times that he
had been intoxicated and that, to the best of my knowledge,
was it." He further testified that he did not inquire as to the
place and circumstances relating to his intoxication on these
two occasions and did not tell Lowman that he considered his
dunking a problem, a comment which would have alerted
Lowman to the need for an explanation of these incidents.
Poteet admitted that he never knew Lowman had a dunking
problem. Moreover Schweitzer admitted that three other
employees hired by him told him in their interview that they
had been drunk and had had drinking problems. Thus,
Schweitzer knew that DeWitt Neeley had been jailed for
drunkenness, that Louis Lindsey, unlike Lowman, had a DWI
(driving while intoxicated) conviction in his record, and that a
third employee had been drunk twice. Finally, at no time did
Respondents refute the Union's accusations, made in President
Pannell's telephone conversation with Attorney Gardner on
November 20, 1967, and in his letter to Gardner on November
27, 1967, that Respondents were contending that "due to a
DWI record they no longer desire his [Lowman's] services"
and Pannell's explanation that investigation disclosed no such
record to exist.
Nor is there any merit to the alleged reason given by
Schweitzer that driving positions were filled. Respondents'
own records show that employees were hired by Schweitzer
although their applications requested the position of driver and
that in any event three new employees were in fact hired as
drivers within the next month although no drivers had been
terminated.
4. Concluding findings
In the early part of October 1967, Superintendent Coker
told employee Melvin Hoyt during a discussion about the
Union that before the union election most of the employees
were "pretty well satisfied with their wages and conditions" of
employment, but that after the Union had been voted in "it
seemed like everyone was upset," and that he (Coker) thought
that Lowman "was the one that had given the idea to everyone
about having an election." In a further conversation about 3 or
4 days later, Coker told Hoyt that it was possible that the
Union had planted Lowman as an employee for the Company.
Hoyt replied that he did not know whether or not that was
true. A few days later, Coker told Hoyt that he felt that
another truckdriver by the name of Mashburn and Lowman
"had been instrumental in stirring up the Union movement"
but that he thought that "Charles [Lowman] was a leader and
trouble maker." A few days after Lowman's termination, Hyde
said to Coker that he understood that Lowman "has been let
go." Coker replied in the affirmative. When Hoyt asked for the
reason, Coker replied it was because Poteet "thought that was
the best thing to do." Coker then added, "I'm afraid I'll have
to hire him back." When Hyde asked why Coker felt that way,
Coker replied, "I think maybe the Union will force me to."
After Respondent Huttig had taken over, Coker told Carrol
Vinson during his hiring interview in the first week of
November 1967, that the Union had been voted in and that
"Lowman had started the Union." When Vinson asked "where
was Mr. Lowman at now," Coker replied that "they had to let
him go."10
Poteet admitted that he had informed Schweitzer prior to
the execution of the contract of sale that the Union had won
an election in the plant. Poteet and Schweitzer both admitted
10 The findings in this paragraph are based on the credited and
undenied testimony of Hoyt and Vinson. Although Coker testified as a
witness for Respondents , he did not deny having made the statements
set forth in the text.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Poteet discussed Lowman's status with Schweitzer before
Lowman had submitted his application. Both Poteet and Coker
recommended to Schweitzer against reemploying him. As
previously found, after Lowman submitted his application on
October 31, he was told to remain in the waiting room while
Poteet and Schweitzer went into the office with Lowman's
application. Lowman was the only employee who was
terminated by Respondents' predecessor after the execution of
the contract of sale on October 20 but before October 31, the
last day that the plant was operated by Respondents'
predecessor. Lowman was the only employee of Respondents'
predecessor who was not reemployed by Respondents.' 1
Upon consideration of all the foregoing and the entire
record as a whole, I am convinced and find (1) that Poteet
seized upon the business termination of the old Lumbermens
Supply Company as presenting a suitable opportunity for
Lowman's termination; (2) that customer complaints, which
were asserted as the reason for his termination for the first
time at the instant hearing, were advanced as palpable pretexts
and afterthoughts to cloak a discriminatory motivation, and
(3) that the true reason for his termination was his union
leadership, activity, and responsibility for bringing the Union
into the plant. I am further convinced and find, contrary to
the denials of Poteet and Schweitzer, that Poteet or Coker
informed Schweitzer of Lowman's union role and activity
prior to Schweitzer's consideration of Lowman's application.
Upon consideration of the transparently false reasons advanced
by Schweitzer for the refusal to hire Lowman, as is readily
apparent from the previously detailed analysis, and in view of
Respondents' announced refusal to recognize and deal with the
Union even if it were to involve 2 or 3 years of litigation and
the conduct in which Respondent's supervisors and agents
engaged to induce the employees to refrain from continuing to
seek and to support the Union as their bargaining representa-
tive, including promises of economic benefits, wage increases,
and threats of econonuc reprisals, all as previously found, I am
further convinced and find (1) that the reasons asserted at the
hearing for the refusal to hire Lowman were also advanced as
pretexts to cloak a discriminatory motivation, and (2) that the
true reason was Schweitzer's desire to eliminate from Respond-
ents' work force the most active union proponent and the
person regarded as being a union leader and "trouble maker"
who was responsible for bringing the Union in. By such
conduct, Respondents discriminated with respect to the hire
and tenure of employment of Charles Lowman, thereby
discouraging membership in the Union in violation of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents, set forth in section III,
above, occurring in connection with their operations set forth
in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
I I Eaton and Rice, warehousemen , were not rehired until several
months later because of a slow period in Respondents ' business.
Moreover , one of them did not even desire immediate reemployment.
CONCLUSIONS OF LAW
1. All employees of Respondents in the Oklahoma City,
Oklahoma, plant, including warehousemen, mill workers and
truckdrivers but excluding salesmen, office employees, guards,
watchmen and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times on and after November 1967, Drivers,
Chauffeurs and Helpers Local Union 886 affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, a labor organization, has
been, and still is, the exclusive representative of all the
employees within said appropriate unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment, within the
meaning of Section 9(a) of the Act.
3. By refusing at all times on and after December 4, 1967,
to recognize and to meet and negotiate with the above-named
labor organization as the exclusive representative in the
above-described appropriate unit, and by unilaterally, without
prior notice to or consultation with said Union, granting wage
increases to the unit employees about the middle of December
1967, Respondents have engaged and are engaging in unfair
labor practices within the meaning of Section 8(aX5) of the
Act.
4. By refusing to hire Charles Lowman on October 31,
1967, Respondents have discriminated with respect to his hire
and tenure of employment, thereby discouraging membership
in the above-named labor organization, and have thereby
engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. By the foregoing conduct and by the conduct detailed in
section III, C, 2, supra, Respondents have interfered with,
restrained, and coerced their employees in the exercise of
rights guaranteed by Section 7 of the Act and thereby have
engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents engaged in certain unfair
labor practices, I will recommend that they cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
Having found that Respondents refused to recognize and
bargain with the Union in violation of Section 8(a)(5) and (1)
of the Act, I will recommend that, upon request, Respondents
recognize and bargain collectively with the Union as the
exclusive representative of all its employees in the appropriate
unit with respect to rates of pay, wages, hours and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
Having found that Respondents violated Section 8(a)(3)
and (1) of the Act by discriminatorily refusing to hire Charles
Lowman on October 31, 1967, I will recommend that
Respondents offer him immediate and full reinstatement to his
former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a result
HUTTIG SASH AND DOOR CO.
of Respondents ' discrimination against him by payment to him
of a sum of money equal to that which he normally would
have earned as wages from October 31 , 1967, to the date of
Respondents ' offer of reinstatement , less his net earnings
during such period , with backpay and interest thereon to be
computed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co , 138 NLRB 716
Because of the character and scope of the unfair labor
practices found to have been engaged in by Respondents, I will
recommend that Respondents cease and desist from in any
other manner mterfenng with, restraining , and coercing its
employees in the exercise of their rights guaranteed in Section
7 of the Act.
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following-
RECOMMENDED ORDER
Respondents, Huttig Sash and Door Company, HSD Cor-
poration and Lumbermen's Supply Company, Oklahoma City,
Oklahoma, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize, meet and bargain collectively
with Drivers, Chauffeurs and Helpers Local Union 886
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as the exclusive
representative of their employees in the following appropriate
unit with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment:
All employees of Respondents in the Oklahoma City,
Oklahoma, plant, including warehousemen, mill workers
and truckdrivers but excluding salesmen, office employees,
guards, watchmen and supervisors as defined in the Act.
(b) Discouraging membership in the above-named or any
other Union by discriminatorily refusing to hire any employees
or by discriminating in any other manner with respect to their
hire and tenure of employment or any term or condition of
employment.
(c) Interrogating employees with respect to their union
sympathies, their knowledge and support of any union
petition, their attendance at union meetings and as to what
was said at such meetings, their attendance at meetings where
affidavits were taken by Board agents, or in any other manner
constituting interference, restraint, or coercion within the
meaning of Section 8(a)(l) of the Act
(d) Promising employees wage increases, longer vacation
periods, or any other economic benefits, to refrain from
continuing to seek and to support the above-named or any
other Union as their bargaining representative.
(e) Threatening employees with reduction in wages and
hours of work, no raises, the possible closing of the plant, or
any other economic reprisals, if the above-named or any other
Union became their recognized bargaining representative.
12 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
781
(f) Announcing and granting wage increases to induce the
employees to refrain from continuing to seek and to support
the above-named or any other Union as their bargaining
representative.
(g) Making unilateral changes in wages, rates of pay, or
other terms or conditions of employment of their employees
without first notifying and consulting with the above-named
Union or any other exclusive collective-bargaining representa-
tive in the above-found appropriate unit.
(h) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their right to
self-organization, to form, join, or assist the above-named or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be
affected by the provisos in Section 8(aX3) of the Act.
2 Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Upon request, recognize and bargain collectively with
the above-named labor organization as the exclusive represent-
ative of the employees in the above-described unit with respect
to rates of pay, wages, hours of employment, and other terms
and conditions of employment, and embody in a signed
agreement any understanding reached.
(b) Offer to Charles Lowman immediate and full reinstate-
ment to a truckdnving or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by reason of
the refusal to hire him, in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Notify Charles Lowman, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed
Forces.
(d) 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, as well as all other records necessary to analyze
and compute the amount of backpay due under the terms of
this Recommended Order.
(e) Post at their place of business in Oklahoma City,
Oklahoma, copies of the attached notice marked "Appendix
A."12 Copies of said notice on forms to be provided by the
Regional Director for Region 16, after being duly signed by
Respondents' representative, shall be posted by Respondents
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including
all places where notice to Respondents' employees are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ents to insure that said notices are not altered, defaced, or
covered by any other material.
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."
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for Region 16, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondents have taken to comply herewith. 13
13 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 16, in writing , within 10 days from the date of this
Order , what steps Respondents have taken to comply herewith."
APPENDIX A
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:
WE WILL NOT refuse to hire any employees because of
their union activities or for antiunion reasons.
WE WILL NOT promise to give, or announce, or grant,
wage increases, longer vacation periods, or any other
economic benefits, to induce our employees to refrain from
having a union as their bargaining representative.
WE WILL NOT threaten employees with cuts in wages
or hours of work or freezing of wages, or any other
economic reprisals, if a union became their recognized
bargaining representative.
WE WILL NOT make unilatenal changes in wages and
working conditions without first notifying and consulting
with our employees' exclusive collective-bargaining repre-
sentative.
WE WILL NOT ask employees about their union sympa-
thies, about attendance at union meetings, about what was
said or done at union meetings, or about meetings attended
by Board agents who took affidavits from employees.
WE WILL give back to Charles Lowman his truckdriving
job and seniority, and will make up the pay he lost and also
pay him 6 percent interest.
WE WILL recognize and bargain with Drivers, Chauffeurs
and Helpers Local Union 886, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all
employees in our Oklahoma City, Oklahoma, plant, includ-
ing warehousemen, mill workers and truckdnvers but
excluding salesmen, office employees, guards, watchmen
and supervisors, and WE WILL sign an agreement including
any understanding reached.
The National Labor Relations Act gives all employees
these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other mutual
aid or protection.
To refuse to do any or all of these things.
WE WILL NOT interfere with any of these rights.
Dated
HUTTIG SASH AND
DOOR COMPANY,
HSD CORPORATION AND
LUMBERMEN'S
SUPPLY COMPANY
(Employer)
By
(Representative) (Title)
Note: We will notify the above-named employee, if pres-
ently serving in the Armed Forces of the United States, of his
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.
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 di-
rectly with the Board's Regional Office, 8A24 Federal Office
Building, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 334-2934.