John C. Carey Milling Co.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 916 (N.L.R.B. 1975)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John C. Carey Milling Company and Sales Drivers &
Dairy Employees Local No. 166 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case 31-CA-
4571
June 26, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On March 18, 1975, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of exceptions and brief
and has decided to affirm the rulings, findings," and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
As more fully set forth in his Decision, the
Administrative Law Judge found that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by
discharging five employees and Section 8(a)(1) by
unlawfully interrogating employees, threatening dis-
charge, offering wage increases to discourage union
support, threatening plant closure, and conditioning
continued employment upon abandonment of the
Union. However, he found that these violations did
not require the imposition of a bargaining order
because the employees continued to support the
Union after the commission of the 8(a)(1) violations
and because the coercive effect of the discharges was
diminished by Respondent's recalling the employees
at the end of the day. We do not agree.
Respondent's threats of discharge and plant clo-
sure and the conditioning of employment on aban-
donment of the Union, quickly followed by dis-
charge, en masse, of all known union supporters,
demonstrated the extremes to which Respondent was
willing to go to keep the Union out. Such actions in
complete disregard of employee rights, even with the
recall, cannot be readily forgotten and will have a
lasting effect on the employees. That effect cannot be
cured by the traditional remedies of making employ-
ees whole for minimal wages lost and the posting of a
notice that Respondent has- been ordered not to
violate the Act again. In these circumstances, the
holding of a free and fair election is unlikely, if not
impossible. For these reasons, we fmd that an order
requiring Respondent to bargain with the Union is
218 NLRB No. 136
necessary to remedy Respondent's unfair labor
practices and to effectuate the purposes of the Act .2
We shall accordingly amend the recommended
Order and notice.
The Administrative Law Judge found that employ-
ee Joseph Dickey is not entitled to backpay because
the foreman had told him prior to the discharge, to
drive around the block and come back to work. We
do not agree. Respondent's president clearly dis-
charged Dickey. Respondent does not dispute that
the discharge was unlawful and in fact sent him, as
well as the others, a recall telegram. Since Dickey
had in fact been discharged, he could not reasonably
be expected to drive around the block and return to
work, despite the foreman's earlier instruction that he
do so. We fmd that Dickey is entitled to backpay and
shall accordingly amend the recommended Order
and notice.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, John C. Carey Milling Company, San Bernar-
dino, California, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order as modified herein:
1. Substitute the following for paragraph 2(a):
"(a) Make Marion Holly, Paul Trujillo, Woody
Smith, and Joseph Dickey whole for their loss of pay
suffered as a result of their discriminatory discharge
for a portion of their workday on July 9, 1974."
2. Insert the following as paragraph 2(b) and
reletter the succeeding paragraphs accordingly:
"(b) Upon request, recognize and bargain collec-
tively with Sales Drivers & Dairy Employees Local
No. 166, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
as the exclusive collective-bargaining representative
of the employees in the appropriate unit."
3. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
1 The Administrative Law Judge correctly found that Woody Smith was
among the employees who were unlawfully discharged. However, he
inadvertantly referred to that employee as John Smith in the recommended
Order and notice to employees . The recommended Order and notice shall
be accordingly corrected.
2 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Vernon Devices,
Inc., 215 NLRB No. 62 (1974).
JOHN C. CAREY MILLING CO. 917
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage melnbership in Sales
Drivers & Dairy Employees Local No. 166,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or
any other labor organization, by discriminating
against employees in regard to hire or tenure of
employment or any term or condition thereof.
WE WILL NOT unlawfully interrogate employees
with respect to their union activities or activities
of their fellow employees.
WE WILL NOT unlawfully threaten to terminate
employees because of their union activities.
WE WILL NOT offer wage increases to employ-
ees in order to discourage them from supporting
the aforesaid Union, or any other labor organiza-
tion.
WE WILL NOT threaten to close our place of
business' if employees continue support of the
aforesaid Union, or any other labor organization.
WE WILL NOT condition continuance of the
further employment of employees upon their
abandonment of the aforesaid Union, or any
other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees, in the exercise
of their rights under Section 7 of the Act.
WE WILL make Marion Holly, Paul Trujillo,
Woody Smith, and Joseph Dickey whole for their
loss of pay suffered as a result of their discrimina-
tory discharge for a portion of their workday on
July 9, 1974.
WE wnL recognize and, upon request, bargain
collectively with Sales Drivers & Dairy Employ-
ees Local No. 166, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers
of America, as the exclusive collective-bargaining
representative of our employees.
JOHN C. CAREY MILLING
COMPANY
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed by Sales Drivers & Dairy Employees
Local No. 166, International Brotherhood of Teamsters,
I As noted hereinbelow, during the course of the hearing Respondent
admitted the unfair labor practice alleged in paragraph 10 of the complaint.
2 Although Respondent admits the above related facts , it denies this
Chauffeurs, Warehousemen & Helpers of America, herein-
after referred to as the Union,, on July 12, 1974, the
complaint herein was issued on December 16, 1974. The
complaint alleges that John C. Carey Milling Company,
hereinafter referred to as the Respondent or Company,
violated Section 8(a)(1) and (3) of the Act. Respondent, by
its answer, denies that it engaged in conduct violative of
the Act as alleged.'
Pursuant to notice, a hearing was held in San Bernardi-
no, California, on January 30 and 31, 1975. Appearances
were entered on behalf of General Counsel and the
Respondent. A brief was timely filed by the General
Counsel. The Respondent waived the filing of a brief, but
at the conclusion of the hearing made a brief oral
argument.
Based upon the entire record in this proceeding, and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is now, and at all times material herein has
been, a sole proprietorship with its principal place of
business located in San Bernardino, California, where it is
engaged in the business of manufacturing and selling mill
work and related items such as doors, windows, glass and
related hardware to contractors in the construction
industry, lumber yards and other companies and persons.
Within its past fiscal or calendar year, Respondent sold
goods valued in excess of $50,000 to Boyd and Lovesee
Lumber Company and Arthur S. McCollum Construction
Company, each a retail enterprise whose operations meet
the Board's statutory and discretionary standards for
asserting jurisdiction over retail enterprises.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(6) and (7) of the Act.2
U. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the aforesaid Union is
now, and at all times material herein has been, a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Organizational Activity
Respondent admits the following allegation in the
complaint: All employees employed by the Respondent as
its facility located at 591 East 9th Street, San Bernardino,
California; excluding office clerical employees, technical
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
During the course of the hearing, Respondent conceded
that on July 2, 1974, six of the nine employees within the
conclusion. It is noted that its counsel conceded at the hearing that, under
Board precedents, said conclusion is appropriate.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-described bargaining unit executed authorization
cards for the Union. Approximately 2 weeks before the
aforesaid union cards were signed, employee Marion J.
Holly, Jr., referred to throughout this proceeding as Jim
Holly, approached Joseph Dickey and several other
employees concerning the desirability of representation by
a union. It appears that Holly talked to all the employees
in the shop except two. It further appears that Holly and
Paul Trujillo considered means of finding an appropriate
union to represent them and finally Darryl McGill
volunteered to find a union which would be willing to
represent the employees. McGill contacted the business
representative of the aforesaid Union, Agatito Espudo.3
McGill arranged for a meeting of the employees with the
business representative for July 2, 1974, which meeting was
conducted by Espudo at the Union hall. Employees
Dickey, Holly, Trujillo, McGill, Woody Smith, and John
Smith were present and signed the authorization cards at
said meeting. It appears that all the employees read the
cards, understood the meaning of them and intended by
their signatures to authorize the Union to represent them.
John Carey, the proprietor of Respondent, testified that
on Friday, July 5, he was informed by Roy Busby,
Respondent's foreman, that there was some union organi-
zational activity being carried on. According to Carey's
testimony, Busby did not give him any information as to
which of the employees were involved.
B. The Issues
The following are the issues in this proceeding: (1)
Whether or not on July 8 Carey interrogated Dickey about
his and his fellow employees' union activities, threatened to
terminate Holly and McGill because of their union
activities and offered Dickey and John Smith wage
increases in order to obtain their abandonment of the
Union. (2) Whether on July 9 Carey interrogated a group
of five employees about their union activities and senti-
ments, threatened Holly with physical harm, threatened to
close the business if employees continued support of the
Union and conditioned further employment upon aban-
donment of the Union. (3) Whether on July 9 Respondent
terminated Dickey, Holly, Trujillo, Smith, and McGill for
a portion of 1 day because of their support of the Union.
(4) Whether on July 10 Respondent terminated McGill
because of his union activity. (5) Whether on July 16 Carey
terminated employees Dickey and Trujillo because of their
union activities and offered Dickey continued employment
on the condition he abandon his union adherence. (6)
Whether the unfair labor practices committed by Respon-
dent are so serious and substantial in character and effect
as to warrant the entering of a remedial order requiring
Respondent to recognize and bargain with the Union for
the above-described bargaining unit within the principles
ofN.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969).
C. Resolution of the Issues
Dickey testified that he had two conversations with
Carey on July 8, one about midday and the other at the
termination of Dickey's shift at approximately 3:30 p.m.
With respect to the first conversation, Dickey testified
that Carey looked at him as if he wanted to talk to him,
and that he asked Carey if that were so. Dickey's testimony
as to what then occurred is as follows:
THE WrrNEss: He said yes, and I believe you know
what it is.
Then I asked him if it was the union matter and he
replied, yes, it was. He wanted to know who had started
organizing the union in the shop. I told him I am sorry,
but I can't tell you that.
He replied that it really didn't make any difference
because he knew that it was Darryl McGill and Jim
Holly and that he was going to fire them both.
Then he asked me what type of a deal the union had
offered us and I told him there was nothing definite but
somewhere between the area of maybe five and, seven
dollars an hour.
He asked me how I would like to make that kind of
money without having to hassle the union. I told him I
didn't know that I would have to think about it. He
said while you are thinking about it, he said get hold of
John Smith and have him think about it too. This was
the end of the conversation.
With respect to the second conversation, Dickey testified
that, when he was punching out at the end of his workday,
Carey motioned to him through the window to come inside
his office. His testimony with respect to the conversation at
that point is as follows:
He told me the next morning he was going to let Jim
Holly go, and that I would take over his position
hanging doors. He told me to be sure and get in touch
with John Smith that night and see if he wanted to go
for the same deal that he had made me without having
a hassle with the union. So I told him I would talk to
John Smith.
Carey testified that he had only one conversation with
Dickey on July 8 and that occurred at the conclusion of
Dickey's shift, that it was in the driveway and not in his
office. According to Carey's testimony, Dickey volunteered
the information that the men were trying to form a union
and that his testimony as to his reply was as follows:
A. That I didn't want a union; that I could not
afford a union; that I couldn't take any more
interference on how to run my little business.
Q. Anything else said?
A. I can't recall anything else being said, sir.
Q. Did you ask him how much the union was
offering to pay the men?
A. I don't think the union offers to pay the men
anything.
Q. Did you ask him what kind of benefits the men
expected to get from the Teamsters?
A. I believe we talked about what union salaries
would be for carpenters.
3 It is not clear whether the first name is spelled as set forth above or is
spelled Agapito.
JOHN C. CAREY MILLING CO.
Carey further testified that he told hickey he couldn't
afford to pay union salaries . When questioned as to
whether or not he told Dickey that he was going to have to
"let go some of the people working there," Carey testified
that he was not sure whether he did at that particular time
or not. Further, Carey testified that he never asked Dickey
"not to support the Union," but he did say he did not want
the Union in his shop. He further denied that he offered
Dickey an increase in wages and also denied that he told
him to talk to John Smith about such an offer.
Dickey was the more convincing of the two witnesses as
to their conversations on July 8 and his testimony with
respect thereto is credited. Moreover, the action that
Dickey and other employees engaged in thereafter on July
8 and the morning of July 9 (as outlined hereinbelow)
would be inexplicable, had Carey not made the statements
to which Dickey testified.
It is concluded from the foregoing credited testimony of
Dickey that Carey did unlawfully interrogate him as to his
and his fellow employees' union activities and sentiments;
did threaten to terminate Holly and McGill because of
their union activities; and did offer Dickey and John Smith
wage increases to discourage them from supporting the
Union.
Later in the day, July 8, Dickey met with John Smith and
related to him what Carey had said in the above-described
two conversations . They discussed Carey's offer of an
increase in wages and decided to reject the offer. They
further decided that they would inform Holly of Carey's
statement that he was going to be discharged the next day.
Dickey and Smith went to Holly's home and met him
about 9 p.m. that evening. Dickey told Holly of his
conversations with Carey and that he and John Smith had
come to the decision to reject Carey's offer of an increase
in wages . They tried to get in touch with a representative of
the Union but were unable- to do so, and also apparently
tried to reach some of the other employees in order to
arrange a meeting the following morning prior to com-
mencement of work.
The next morning, July 9, Dickey, Holly, and Smith met
at a comer near the plant and intercepted Trujillo and
Woody Smith on their way to work. Trujillo and Woody
Smith were informed of the above-described conversations
between Dickey and Carey and of the decisions which the
three had reached and they all agreed to continue 'their
union support. The five employees went to the plant and
then immediately into Carey's office (which was about 8
a.m.). Carey and Foreman Royce Busby were in the office.
Several of General Counsel's witnesses and Carey
testified as to the meeting between the five employees and
Carey.4 There are some variations in the testimony of the
various witnesses called by General Counsel. Following is
a summary of what occurred in the meeting based upon the
credited portions of the testimony of said witnesses and of
Carey. It is noted that Carey's testimony did not substan-
tially contradict the following findings of fact except in one
respect (which will be indicated hereinbelow).
Dickey acted as a spokesman for the five employees.
Dickey stated to Carey that he was rejecting Carey's offer
(ostensibly of an increase in wages) and was going to stay
4 11; noted that Busby was not called as a witness.
919
with the Union, Carey stated that he would never allow the
Union to come into his place of business and apparently
began to lose his temper. He further stated that he had only
made $25,000 the previous year and could not afford a
union. Carey's credited testimony as to what he said after
he told them he could not afford the Union is as follows:
A. I said that all I needed was one more person
trying to tell me how to run my business to where it
would not be worthwhile running a business any more,
and I would close the shop down and go to work for
someone else.
Carey also credibly testified that he related to them favors
he had done for them and how well he had treated them.
Carey further credibly testified as follows:
A. I believe that it [the meeting] wound up me
saying that I do not want the union in here and I
cannot have the union in here, now make a choice
whether you want to go back to work or not. Then I
walked outside and let them talk it over.
Q. Did you tell them that you would never have a
union in your shop?
A. Most likely I did, sir.
During the course of the meeting, Holly stated that he
felt that he had been tried, convicted, and executed without
being present at his own trial, apparently referring to
Carey's decision to fire him. At that point apparently
Carey lost his temper even further and cursed at Holly with
a clenched fist and stated "that this was his business, that
he would hire and fire who he pleased under the terms that
he pleased." Apparently shortly thereafter, Carey calmed
down and, as Carey above testified, told the five employees
to talk the matter over and make a decision.
It is apparent from Carey's testimony and the credited
testimony of the other witnesses that he, in effect, gave
them the choice of going back to work, upon the condition
that they forget about the Union. After Carey and Busby
left, the employees had a discussion and decided to go
back to work, but nevertheless to adhere to the Union.
As stated above, there is no substantial contradiction
between the testimony of General Counsel's witnesses and
that of Carey except that Carey denied that Dickey said
anything about rejecting an offer (ostensibly referring to
the offer of a pay increase). Although Carey testified with
considerable candor, this denial is not, however, credited.
Not only did several witnesses testify that Dickey made
such a statement, but it is deemed, in view of the foregoing
findings of fact of what occurred on July 8, that Dickey
must have made some reference to the above-mentioned
offer of a pay increase,
Dickey testified that after the meeting he went outside
and told Carey that the employees had decided they still
wanted to be represented by the Union and that Carey
replied' that if they thought they were going to get the
Union in the shop they were "crazy." Also Dickey testified
that Carey said he felt he could trust him because he had
worked for him in the past and had been a foreman, and
that he felt that he could trust him to go against the Union.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carey denied that Dickey reported anything to him after
the meeting. However,-even though Carey denied Dickey
reported the employees' decision to him, he candidly
testified that he heard the men working, but nevertheless
felt that they had decided to adhere to the Union.
Although for the most part and in regard to this point
Carey appeared to be a candid witness, nevertheless, in the
circumstances it is inferred that Dickey must have reported
the decision to him, and, therefore, Dickey's testimony
with respect to their conversation in which he reported the
employees' decision is credited.
It appears from the foregoing findings of fact that at the
meeting Cary did threaten to close down the plant if a
union were to represent the employees and did condition
the employees continuing to work upon their disavowal of
the Union, as alleged in the complaint. However, it does
not appear to be appropriate to -find that the General
Counsel proved by a preponderance of the evidence the
allegations that Carey threatened Holly with physical harm
or that he unlawfully interrogated the employees about
their union activities during the course of the meeting. The
only evidence of a threat of physical harm was that Carey
clenched his fists . As to the allegations of unlawful
interrogation, it appears that any statements made by the
employees with respect to their adherence to the Union
were voluntarily made and were not elicited by Carey's
unlawful questioning.
Dickey testified without contradiction, which testimony
is credited , that shortly after the meeting of the five
employees with Carey, Busby came to him and asked to
speak to him "in the driveway." Dickey's testimony as to
their conversation is as follows:
Yes. I went outside and he told me that Mr. Carey
was going to fire everybody in the shop and he said he
is going to fire you too just to make it look good, but
just drive on around the block and come on back to
work when the guys are gone.
.
'
Shortly thereafter about 10 a.m. on the morning of July 9,
Carey came into the shop in which the mill work was done
(where Holly, Dickey, and Trujillo were employed).
According to the credited testimony of Dickey, Holly, and
Trujillo, Carey told them to shut down their machines and
go to the office and get their checks. Carey testified that he
told them that business was slow and he had decided to cut
down the work force because of it. When Carey was
questioned as to whether the employees' union activity had
anything to do with his decision to let them go that day,
Carey testified as follows : "Well, I would like to say no,
but I would in all honesty, sir, have to feel that that was
probably part of my thinking to make the decision at that
time." When Woody Smith returned to the plant after
making a delivery a short time later, Busby told him that
Carey was "letting everybody go" that he was to go to the
office and get his check. Respondent admitted at the start
of the hearing the allegation in the complaint that the
aforesaid four employees were discriminatorily discharged
for "a period of approximately 1 day.-5
Apparently later in that day Carey talked to a labor
consultant who advised him to hire back the dischargees,
so Carey by phone and telegram notified the aforesaid four
employees to report to work the following day.
It , is alleged in paragraph 11' of the complaint that
McGill was discriminatorily discharged on July 9, 1974,
and again on July 10, 1974. It appears that on July 8, Carey
was advised by his insurance agent that McGill, who was
employed as a driver, could not be covered under the
Respondent's automobile insurance policy because of
difficulty in obtaining McGill's driving record from the
Department of Motor Vehicles,6 and that on July 8, Carey
advised McGill that he would have to get his license
verified before he could continue working. Toward the end'
of the day, Carey told him, according to McGill's
testimony, that until he could straighten out his driver's
license, he should take a day or two off. On the evening of
July 9, Carey sent him a telegram stating that he should
report back to work when he gets his license verified.
Although General Counsel concedes that, because of
McGill's driving record, he was uninsurable and that he
"has no objection if the Administrative Law Judge
dismisses that portion of the complail}t°relating to McGill's
termination on July 10," 4e " nevertheless argues that
McGill was discriminatorily discharged on July 9, basing
this contention apparently on the fact that he received a
telegram telling him to report"baek to work once he gets his
license verified. It appears that on July 9, McGill asked
Carey if he were going to, be fired, and Carey without
making, any response, ordered his check to be made out for
him. It is inferred from this action and the subsequent
telegram'that Carey did intend to discharge McGill on July
9 and that it was discriminatorily motivated. Nevertheless,
in view of McGill's status with regard to insurance
coverage, it does not appear that he is entitled to any
backpay for the discriminatory discharge, since the
General Counsel concedes that because offhis uninsurabili-
ty, he could not have been utilized as a driver. Therefore,
with' respect to , paragraph 11 of the complaint, it is
concluded that he was discriminatorily discharged on July
9, 1974, but that the balance of the allegation in paragraph
11 referring to his discriminatorydischarge, on July 10
should Pe dismissed. The record clearly reflects that
because of his driving recordMo4 ill could not,be covered
under, Respondent's insurance and, therefore, Respon-
dent's failure to employ him after July 9, cannot be said to
have been discriminatorily motivated, as General Counsel
appropriately noted in his brief.,
It is alleged in paragraph 12 of the complaint that on or
about July 16, 1974, Respondent, discriminatorily terminat-
ed Dickkey and Trujillo. Respondent's position is, in effect,
that it laid off said employees on that date for lack of work
and that it has not had any need of them since then.
Dickey testified on direct examination that he, came back
to work on July 10 in accordance with the telegram he
s As will be set forth hereinbelow with respect to the remedy, it appears he was to return to work "after driving around the block," it does not
that Holly, Trujillo, and Woody Smith are entitled to be made whole for the appear that he would be entitled to backpay for the portion of the day that
loss of earnings for the portion of the day which they did not work on July he did not work since he had been instructed to return to work immediately.
9. However, in view of Dickey's uncontradicted and credited testimony that 6 This was confirmed by letter dated July 9, 1974.
JOHN C. CAREY MILLING CO.
received from Carey and "worked up through the 16th."
On cross-examination , Dickey testified that he thought he
was laid off again on July 11 and that it was from
somewhere between 2 and 5 days -- "maybe a little
longer." It appears from his records, and it is found, that
between July 10 and July 16, he was ]aid off only 1 day,
that that was on July 15, and that he came back to work on
July 16.
It appears from the record that on July 16 Holly and
Dickey were laid off. Trujillo testified that about the
middle of the morning of July 12 he ran out of all the
orders he had, so he asked Busby if there were any more
work orders, to which Busby replied that there were not
and told him to help Holly. It further appears from
Trujillo's testimony that he helped Holly the rest of the day
on Friday and on Monday and Tuesday, July 16; and that
at the end of the .day of July 16, Carey told him that he
would not need his services the following day, to call him
at the end of the day on July 17, and he would let him
know whether he would need him or not. Trujillo further
testified that he called in every day for approximately a
week and that he was never called back.
Holly testified that Carey approached the three employ-
ees in the shop and informed Trujillo that he was laid off
"because he was in sort of a specialized division of the
mill" and that Carey then turned to Dickey and Holly and
left it to them to decide which of the two of them should be
laid off, since Carey indicated that he could only keep one
of them. It appears from his testimony that Holly and
Dickey discussed the question and it was decided that he,
Holly, should remain because he had worked "the last one-
and-a-half" years and Dickey "had only recently returned
to the shop after a long absence."
Dickey testified to the incident as follows:
THE Wimnss: The way it worked is that he knew
that Ray was going. In other words he was getting rid
of two men and he knew that Ray was going to be one
of them. As to who the second man would be, would be
left up to me and Jim Holly to decide for ourselves.
JUDGE: So there was only one time that he talked
about making the decision, is that right?
Tim WrrNEss: Yes.
JUDGE: And at that time he said to make up your
mind; he said two of you would have to go. How did
you kno it was between you and Holly?
THE Wi1NESs: Because he said two had to go and he
knew already that Ray was one of the two that had to
go.
JUDGE: How did you know?
Tim WrrNEss: He told us. That he was shutting
clown Ray Trujillo's department - door frames - so
that Ray was going because of lack of work, and that
Jim or I could make up our minds about which one of
us were going to go.
Carey testified as follows:
A. I went into the back shop on the 16th and
informed Ray Trujillo that I was going to have to let
7 It is noted that Dickers testimony, as disclosed above , with respect to
the period between July 10 and July 16 (as to the days he worked) not only
921
him off because he had absolutely no more work to do,
and that I was going to lay Joe Dickey off.
Then I said, now, to be even more fair with you men,
you make your own decisions who wants to be laid off
and who wants to work.
JUDGE: Who[m] were you talking to them [then]?
Tim Wrrxuss: I was talking to Mr. Holly and Mr.
Dickey sir.
Q. (By Mr. Slaight): And this conversation oc-
curred sometime during the day?
A. Yes, sir, in the afternoon.
Q. Prior to the end of the shift that night?
A. Yes, sir.
Q. And their decision was conveyed to you right at
that time?
A. Yes, sir.
Q. And the decision was that Mr. Dickey would be
the one to be laid off`?
A. Yes, sir. Mr. Holly said that his wife during the
summer months doesn't get a paycheck - she is a
school teacher - and that he really needed the money
now and Joe said, heck, I don't care, I can always get
another job. So he said, go ahead, Jim, you stay.
It is noted that Dickey testified that, after it was decided
he would be the one to accept the layoff instead of Holly,
he had a conversation with Carey. According to Dickey,
Carey approached him after the others had left. Dickey's
testimony as to their conversation is as follows:
A. Yes. He just came out and just plain and simple
asked me if I wouldn't reconsider the offer that he had
made me and he hated to lose me because I was a good
employee. Then I told him no, that I am afraid I
wouldn't reconsider. He said what are you going to do
if you don't work for me. I said I don't know, I will
work for somebody else; maybe I will go to work for
myself. Then he said well, I have no choice but to let
you go then.
Carey categorically denied ever having had such a
conversation with Dickey. Carey's denial is credited?
Although some of his previous testimony was not credited,
he was the more convincing of the two witnesses as to this
alleged incident and, moreover, in the circumstances it
does not appear likely that Carey would have made such
an offer to Dickey. Although it was found hereinabove that
on July 8 he made an offer of a wage increase for both
Dickey and John Smith, he retained John Smith without
asking him to reconsider the offer (of accepting a wage
increase to discourage his union adherence). It is illogical
that he would have offered to raise Dickey's wages to
discourage his adherence to the Union, since` he was
getting rid of Dickey by the layoff and agreed to retain
Holly who he apparently knew was the ringleader on
behalf of the Union. Moreover, I do not believe that he
made such an offer since, as found hereinbelow, he had no
need for Dickey's services because of the lack of work m.
the shop. The record discloses that Carey moved Busby
into the shop where he had previously worked while a
contained contradictions but was contrary to the facts and considerably
vague.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman and he (Carey) took over the shipping and
receiving work which Busby had been doing. The record
further discloses that no replacements were hired except
for a short period between September 9 and October 24
when a driver was hired because, at that time, Woody
Smith went back to school and worked only on Tuesdays
and Thursdays.
General Counsel contends that Respondent's. billings
indicate that the layoffs were not economically motivated.
It appears that Respondent's gross billings were as follows
for the following months of 1974:
January $ 74,968
February $ 88,432
March $105,023
April $127,543
May $100,272
June $101,908
July $ 97,817
August $ 91,668
September $ 82,089
October - $ 77,926
November $ 72,424
December $ 63,386
It does not appear that these billings are particularly
significant , since the layoffs were in the mill shop and it
further appears that the bulk of Respondent's sales are of
premanufactured items . The shop does mill work which
consists of manufacturing items to specifications, and the
above figures do not indicate the amount of mill work. It
appears that the staff which Respondent retained was
sufficient to handle the work that was required. As a
matter of fact, Holly testified that on two occasions he was
laid off after July 16 for lack of work in the shop, on one
occasion for 2 days and on another occasion for approxi-
mately a week.
The General Counsel contends that if the Respondent
had, in fact, been short of work it could have "easily
submitted more bids on construction jobs" or offered to let
Dickey or Trujillo take McGill's job. There is nothing in
the record to support the contention that Respondent
"could easily have submitted more bids on construction
jobs." As to the contention that Respondent could have
offered Dickey or Trujillo McGill's job, it is noted that no
replacement was hired for McGill and that while there was
an employee temporarily hired to drive at the time Woody
Smith went back to school, there is no showing that Dickey
or Trujillo was qualified as a truckdriyer. These two were
employees who specialized in mill work.
While it might be said that Carey's unlawful antiunion
reaction on July 8 and 9 to the news of the employees'
desire to be represented by the Union, as found herein-
above, and the temporary discriminatory discharges on
July 9 raise a suspicion of a discriminatory motive for the
layoffs of Dickey and Trujillo, the facts that the staff which
was retained was sufficient to handle the work (without
replacements being hired for either Dickey or Trujillo) and
that the workload was slow just prior to the layoffs lead to
9 The record discloses that prior to the layoffs, on July 16, Trujillo had
run out of the work which he had specialized in doing and Dickey had been
the inference that a discriminatory motive for the layoffs
does not rise above mere suspicion.8 The fact that Busby
was assigned to work in the shop to replace one of the two
men while remaining as foreman cannot be considered a
significant factor, since Busby had previously worked in
the shop while he was a foreman. It appears that
Respondent, made said adjustment to cut down its
overhead. There is no showing that anyone had to work
overtime in order to compensate for a smaller work staff,
but rather, as indicated, there were even two occasions
when Holly was laid off for lack of work in the shop after
July 16.
There is some testimony about Othal Cronic working at
the plant, apparently for the purpose of showing that he
was taking the place, at least partially,-of one of the two
men laid off. It appears that Cronic is a retiree who has a
hobby of making toys and other objects out of wood for
the church and children. It further appears that he had
been doing odd jobs around the plant on a part-time basis
for over 2 years, mostly that of cleaning up, and that he
was given an allowance of $2.50 an hour for the time he
spent which was paid off in scraps of lumber and other
materials which he used for his hobby. Moreover, Cronic
credibly testified that he worked less time in the mill shop
after, midsummer than he had prior thereto and that in the
18 months prior to the hearing, he averaged less than 10
hours of work per week at Respondent's plant. It does not
appear that the retention of Cronic can be considered as a
factor to show that Dickey and Trujillo or either of them
could have been retained for sound business reasons and
that their layoffs were not for economic reasons.
In view of the above considerations, it is concluded that
General Counsel has failed to prove by a preponderance of
the evidence the allegation that Dickey and Trujillo were
unlawfully terminated on July 16, 1974.
In reliance upon N.LRB. v. Gissel Packing Company,
supra, the General Counsel requests a bargaining order as a
remedy for Respondent's violations of Section 8(a)(1) and
(3), citing Steel-Fab, Inc., 212 NLRB 363 (1974). While
there is no dispute that a majority, of the employees in the
bargaining unit as of July 2, 1974, signed valid union
authorization cards and that the Respondent has been
found to have committed violations of Section 8(axl) and
(3) of the Act, nevertheless, I am not of the opinion that the
unfair labor practices of Respondent found herein have
rendered impossible (or even unlikely) the holding of a fair
and free election in the bargaining unit involved in this
proceeding.
It is noted that all of the unfair labor practices of
Respondent found herein were confined to the days of July
8 and 9, 1974. _ It was found that on July 8, as noted
hereinabove, Respondent, in a conversation between Carey
and Dickey, violated Section 8(a)(1) of the Act by unlawful
interrogation, threats of reprisal and an offer of wage
increases ; and that on July 9 , in a meeting with five
employees, Carey threatened to close the plant and
conditioned employees continuing to work on their
disavowal of the Union in violation of Section 8(axl) of
the Act. Also on July 9, it was found hereinabove that the
laid off on July 15, apparently for lack of work, since there is no contention
that it was discriminatorily motivated.
JOHN C. CAREY MILLING CO.
Respondent violated Section 8(a)(3) and (1) of the Act by
the discharges of five employees which were recanted,
however, at the end of the day. It is apparent that the
employees were not deterred from their adherence to the
Union because on July 9, despite all the independent
violations of Section 8(a)(1), Dickey as spokesman for the
employees, informed Carey that they were returning to
work and had decided to adhere to the Union. As for the
aforesaid discriminatory discharges on July 9, since they
were quickly recanted by telegrams at the end of the day
recalling all of the employees, it is deemed their coercive
effect must have been largely diminished. In the circum-
stances of this case, it is deemed inappropriate to require a
bargaining order to remedy the unfair labor practices on
the conclusion that a fair and free election cannot be held
in the above-described appropriate bargaining unit after
the remedy proposed hereinbelow.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section I, 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.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent unlawfully
terminated five employees on July 9, it will be recommend-
ed that Respondent be ordered to cease and desist from
discouraging membership in the aforesaid Union, or any
other labor organization, by discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition thereof.
It will be further recommended that Marion Holly, Paul
Trujillo, and Woody Smith be made whole for loss of any
pay they may have suffered for the portion of the day they
did not work on July 9. For the reasons noted hereinabove,
it does not appear that either Joseph Dickey or Darryl
McGill suffered any loss of pay as a result of Respondent's
discriminatory discharge of them on July 9. Dickey was
instructed by Respondent's foreman prior to his discharge
to return immediately to work despite a notification of his
discharge, and McGill was unavailable for work for the
period of his discharge (during the day of July 9) because
Respondent had previously been notified that McGill, as a
driver, was not covered under Respondent's insurance
policy and McGill was advised that until the problem was
resolved he could not be used.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
923
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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. On July 2, 1974, the Union had valid authorization
cards from six of the nine employees in the appropriate
bargaining unit described hereinabove.
4. Respondent through the conduct , of Carey in a
conversation with an employee did on July 8, 1974,
unlawfully interrogate said employee, threaten to discharge
two employees because of their union activities, and
offered said employee and another employee wage increas-
es in order to discourage their adherence in the Union.
5. Respondent through the conduct of Carey at a
meeting with five employees on July 9, 1974, did violate
Section 8(axl) of the Act by threatening to close the plant
if the Union were to represent the employees and by
conditioning employees continuing to work upon their
disavowal of the Union.
6. Respondent on July 9, 1974, did, for a portion of
said day, discriminatorily discharge five employees in
violation of Section 8(a)(3) and (1) of the Act.
7. As he has conceded, General Counsel has failed to
prove by a preponderance of the evidence that Respondent
violated Section 8(a)(3) and (1) of the Act by unlawfully
discharging Darryl McGill on July 10, 1974.
8. General Counsel has failed to prove by a preponder-
ance of the evidence the allegation in the complaint that on
or about July 16, 1974, Respondent violated Section 8(a)(3)
and (1) by unlawfully terminating Joseph Dickey and Paul
Trujillo.
9. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations in the complaint that
on or about July 9, 1974, Respondent threatened an
employee with physical harm and unlawfully interrogated
employees.
Upon the foregoing findings of fact, conclusions of law
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
Respondent, John C. Carey Milling Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees with respect to
their union activities or activities of their fellow employees.
(b) Unlawfully threatening to terminate employees
because of their union activities.
(c) Offering wage increases to employees in order to
discourage them from supporting the Union.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Threatening to close its place of business if employees
continue their support of the Union.
(e) Conditioning the continuance of further employment
of employees upon their abandonment of the Union.
(f) Discouraging membership in Sales Drivers & Dairy
Employees Local No. 166, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization by discriminating
against employees in regard to hire or tenure of employ-
ment or any term of condition thereof.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Make Marion Holly, Paul Trujillo, and John Smith
whole for their loss of pay suffered as a result of their
discriminatory discharge for a portion of their workday on
July 9, 1974.
(b) Upon request, make available to the Board or its
agents for examination and copying all payroll and other
records containing information concerning its backpay
obligation under this recommended Order.
LO In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
(c) Post at its place of business in- San Bernardino,
California, copies of the notice attached hereto and
marked "Appendix." 10 Copies of said notice, on forms
provided by the Regional Director for Region 31, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
All allegations of unfair labor practices in the complaint,
other than those which have been found hereinabove to
have been proved, should be, and are hereby dismissed,
including the allegations of the unlawful discharge of
McGill on July 10, 1974, and the unlawful discharges of
Dickey and Trujillo on July 16, 1974.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."